[Federal Register Volume 84, Number 204 (Tuesday, October 22, 2019)]
[Rules and Regulations]
[Pages 56626-56671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20550]
[[Page 56625]]
Vol. 84
Tuesday,
No. 204
October 22, 2019
Part IV
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Part 328
Environmental Protection Agency
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40 CFR Parts 110, 112, 116, et al.
Definition of ``Waters of the United States''--Recodification of Pre-
Existing Rules; Final Rule
Federal Register / Vol. 84 , No. 204 / Tuesday, October 22, 2019 /
Rules and Regulations
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401
[EPA-HQ-OW-2017-0203; FRL-10000-10-OW]
RIN 2040-AF74
Definition of ``Waters of the United States''--Recodification of
Pre-Existing Rules
AGENCY: Department of Defense, Department of the Army, Corps of
Engineers; Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) and the Department
of the Army (``the agencies'') are publishing a final rule to repeal
the 2015 Clean Water Rule: Definition of ``Waters of the United
States'' (``2015 Rule''), which amended portions of the Code of Federal
Regulations (CFR), and to restore the regulatory text that existed
prior to the 2015 Rule. The agencies will implement the pre-2015 Rule
regulations informed by applicable agency guidance documents and
consistent with Supreme Court decisions and longstanding agency
practice.
The agencies are repealing the 2015 Rule for four primary reasons.
First, the agencies conclude that the 2015 Rule did not implement the
legal limits on the scope of the agencies' authority under the Clean
Water Act (CWA) as intended by Congress and reflected in Supreme Court
cases, including Justice Kennedy's articulation of the significant
nexus test in Rapanos. Second, the agencies conclude that in
promulgating the 2015 Rule the agencies failed to adequately consider
and accord due weight to the policy of the Congress in CWA section
101(b) to ``recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution'' and ``to plan the development and use . . . of land and
water resources.'' 33 U.S.C. 1251(b). Third, the agencies repeal the
2015 Rule to avoid interpretations of the CWA that push the envelope of
their constitutional and statutory authority absent a clear statement
from Congress authorizing the encroachment of federal jurisdiction over
traditional State land-use planning authority. Lastly, the agencies
conclude that the 2015 Rule's distance-based limitations suffered from
certain procedural errors and a lack of adequate record support. The
agencies find that these reasons, collectively and individually,
warrant repealing the 2015 Rule.
With this final rule, the regulations defining the scope of federal
CWA jurisdiction will be those portions of the CFR as they existed
before the amendments promulgated in the 2015 Rule.
DATES: This rule is effective on December 23, 2019.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OW-2017-0203. All documents in the docket are
listed on the http://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Michael McDavit, Office of Water
(4504-T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW,
Washington, DC 20460; telephone number: (202) 566-2428; email address:
[email protected]; or Jennifer Moyer, Regulatory Community of Practice
(CECW-CO-R), U.S. Army Corps of Engineers, 441 G Street NW, Washington,
DC 20314; telephone number: (202) 761-6903; email address:
[email protected].
SUPPLEMENTARY INFORMATION: The agencies are taking this final action to
repeal the Clean Water Rule: Definition of ``Waters of the United
States,'' 80 FR 37054 (June 29, 2015), and to recodify the regulatory
definitions of ``waters of the United States'' that existed prior to
the August 28, 2015 effective date of the 2015 Rule. Those pre-existing
regulatory definitions are the ones that the agencies are currently
implementing in more than half the States in light of various judicial
decisions currently enjoining the 2015 Rule. As of the effective date
of this final rule, the agencies will administer the regulations
promulgated in 1986 and 1988 in portions of 33 CFR part 328 and 40 CFR
parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401,\1\ and will
continue to interpret the statutory term ``waters of the United
States'' to mean the waters covered by those regulations consistent
with Supreme Court decisions and longstanding practice, as informed by
applicable agency guidance documents, training, and experience.
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\1\ While the EPA administers most provisions in the CWA, the
Department of the Army, Corps of Engineers administers the
permitting program under section 404. During the 1980s, both
agencies adopted substantially similar definitions of ``waters of
the United States.'' See 51 FR 41206 (Nov. 13, 1986) (amending 33
CFR 328.3); 53 FR 20764 (June 6, 1988) (amending 40 CFR 232.2).
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State, tribal, and local governments have well-defined and
established relationships with the Federal government in implementing
CWA programs. This final rule returns the relationship between the
Federal government, States, and Tribes to the longstanding and familiar
distribution of power and responsibilities that existed under the CWA
for many years prior to the 2015 Rule.
In issuing the July 27, 2017 notice of proposed rulemaking (NPRM)
and the July 12, 2018 supplemental notice of proposed rulemaking
(SNPRM), the agencies gave interested parties an opportunity to comment
on important considerations and reasons for the agencies' proposal,
including whether it is desirable and appropriate to recodify the pre-
2015 regulations as an interim step pending a substantive rulemaking to
reconsider the definition of ``waters of the United States.'' See 82 FR
34899, 34903 (July 27, 2017); 83 FR 32227 (July 12, 2018). The agencies
received approximately 770,000 public comments on this rulemaking and
carefully reviewed those comments in deciding whether to finalize this
rule.
For the reasons discussed in Section III of this notice, the
agencies conclude that the 2015 Rule exceeded the agencies' authority
under the CWA by adopting an interpretation of Justice Kennedy's
``significant nexus'' standard articulated in Rapanos v. United States
and Carabell v. United States, 547 U.S. 715 (2006) (``Rapanos'') that
was inconsistent with important aspects of that opinion (as well as the
opinion of the Court in Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (``SWANCC'')) and
which enabled federal regulation of waters outside the scope of the
Act, even though Justice Kennedy's concurring opinion was identified as
the basis for the significant nexus standard established in the 2015
Rule. The agencies also conclude that, contrary to reasons articulated
in support of the 2015 Rule, the rule
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expanded the meaning of ``tributaries'' and ``adjacent'' wetlands to
include waters beyond those regulated by the agencies under the pre-
existing regulations, including certain isolated waters, as applied by
the agencies following decisions of the Supreme Court in Rapanos and
SWANCC. One of the agencies' stated goals in the 2015 Rule was to
provide greater clarity in identifying the geographic scope of the CWA,
believing that ``State, tribal, and local governments have well-defined
and longstanding relationships with the Federal government in
implementing CWA programs and these relationships are not altered by
the final rule.'' 80 FR 37054. The agencies now believe that the 2015
Rule improperly altered the balance of authorities between the Federal
and State governments, in contravention of CWA section 101(b), 33
U.S.C. 1251(b), and pushed the envelope of the agencies' constitutional
and statutory authority, despite the absence of a clear indication that
Congress intended to invoke the outer limits of its power. The agencies
also conclude that the 2015 Rule's distance-based limitations in the
(a)(6) and (a)(8) categories of waters were procedurally deficient and
lacked adequate record support.
Additionally, since the agencies' publication of the SNPRM, the
U.S. District Courts for the Southern District of Texas and the
Southern District of Georgia have found that the rule suffered from
certain procedural (both courts) and substantive (Southern District of
Georgia) errors and issued orders remanding the 2015 Rule back to the
agencies. Texas v. EPA, No. 3:15-cv-162, 2019 WL 2272464 (S.D. Tex. May
28, 2019); Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922 (S.D.
Ga. Aug. 21, 2019). As reflected below, a number of the agencies'
conclusions regarding the validity of the 2015 Rule are consistent with
and reinforced by the findings of these courts.
Further, for the reasons discussed in Section IV of this notice,
the agencies conclude that regulatory certainty will be best served by
repealing the 2015 Rule and recodifying the pre-2015 regulations
currently in effect in those States where the 2015 Rule is enjoined.
Though the agencies recognize that the pre-existing regulations pose
certain implementation challenges, the agencies find that restoring the
prior regulations is preferable to maintaining the 2015 Rule, including
because returning to the pre-2015 regulations will reinstate nationwide
a longstanding regulatory framework that is more familiar to and
better-understood by the agencies, States, Tribes, local governments,
regulated entities, and the public while the agencies consider public
comments on the proposed revised definition of ``waters of the United
States.'' See 84 FR 4154 (Feb. 14, 2019). In that separate rulemaking,
as referenced in Section VII, the agencies are reconsidering the proper
scope of federal CWA jurisdiction and seek to establish a clear and
implementable regulatory definition that better effectuates the
language, structure, and purposes of the CWA.
Table of Contents
I. General Information
A. Where can I find information related to this rulemaking?
B. What action are the agencies taking?
C. What is the agencies' authority for taking this action?
II. Background
A. The 2015 Rule
B. Legal Challenges to the 2015 Rule
C. Executive Order 13778 and the ``Step One'' Notice of Proposed
Rulemaking and the Supplemental Notice of Proposed Rulemaking
D. The Applicability Date Rule
III. Basis for Repealing the 2015 Rule
A. Legal Authority To Repeal
B. Legal Background
1. The Clean Water Act
2. U.S. Supreme Court Precedent
3. Principles and Considerations
C. Reasons for Repeal
IV. Basis for Restoring the Pre-Existing Regulations
V. Alternatives to the Final Rule
VI. Economic Analysis
VII. The Effect of this Rule and the Agencies' Next Steps
VIII. Statutory and Executive Order Reviews
I. General Information
A. Where can I find information related to this rulemaking?
1. Docket. An official public docket for this action has been
established under Docket ID No. EPA-HQ-OW-2017-0203. The official
public docket consists of the documents specifically referenced in this
action, and other information related to this action. The official
public docket is the collection of materials that is available for
public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution
Ave. NW, Washington, DC 20004. This Docket Facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
OW Docket telephone number is (202) 566-2426. A reasonable fee will be
charged for copies.
2. Electronic Access. You may access this Federal Register document
electronically under the ``Federal Register'' listings at http://www.regulations.gov. An electronic version of the public docket is
available through EPA's electronic public docket and comment system,
EPA Dockets. You may access EPA Dockets at http://www.regulations.gov
to view public comments as they are submitted and posted, access the
index listing of the contents of the official public docket, and access
those documents in the public docket that are available electronically.
For additional information about EPA's public docket, visit the EPA
Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the Docket Facility.
B. What action are the agencies taking?
In this notice, the agencies are publishing a final rule repealing
the 2015 amendments to the definition of ``waters of the United
States'' in portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116,
117, 122, 230, 232, 300, 302, and 401, and are restoring the pre-
existing regulatory text.
C. What is the agencies' authority for taking this action?
The authority for this action is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including sections 301, 304, 311,
401, 402, 404, and 501.
II. Background
A. The 2015 Rule
On June 29, 2015, the agencies issued a final rule (80 FR 37054)
amending various portions of the CFR that set forth a definition of
``waters of the United States,'' a term contained in the CWA section
502(7) definition of ``navigable waters,'' 33 U.S.C. 1362(7).
One of the stated purposes of the 2015 Rule was to ``increase CWA
program predictability and consistency by clarifying the scope of
`waters of the United States' protected under the Act.'' 80 FR 37054.
The 2015 Rule defined the geographic scope of the CWA by placing waters
into three categories: (A) Waters that are categorically
``jurisdictional by rule'' in all instances (i.e., without the need for
any additional analysis); (B) waters that are subject to case-specific
analysis to determine whether they are jurisdictional; and (C) waters
that are categorically excluded from jurisdiction. Waters considered
``jurisdictional by rule'' included (1) waters which are currently
used, were used in the past, or may be susceptible to use in interstate
or foreign commerce, including all waters which are subject to the ebb
and flow of the tide; (2) interstate waters, including interstate
wetlands; (3) the territorial seas; (4) impoundments of
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waters otherwise identified as jurisdictional; (5) tributaries of the
first three categories of ``jurisdictional by rule'' waters; and (6)
waters adjacent to a water identified in the first five categories of
``jurisdictional by rule'' waters, including ``wetlands, ponds, lakes,
oxbows, impoundments, and similar waters.'' See 80 FR 37104.
The 2015 Rule added new definitions of key terms such as
``tributaries'' and revised previous definitions of terms such as
``adjacent'' (by adding a new definition of ``neighboring'' that is
used in the definition of ``adjacent'') that would determine whether
waters were ``jurisdictional by rule.'' See id. at 37105. Specifically,
a ``tributary'' under the 2015 Rule is a water that contributes flow,
either directly or through another water, to a water identified in the
first three categories of ``jurisdictional by rule'' waters and that is
characterized by the presence of the ``physical indicators'' of a bed
and banks and an ordinary high water mark. ``These physical indicators
demonstrate there is volume, frequency, and duration of flow sufficient
to create a bed and banks and an ordinary high water mark, and thus to
qualify as a tributary.'' Id.\2\ Tributaries under the 2015 Rule could
be natural, man-altered, or man-made, and do not lose their status as a
tributary if, for any length, there is one or more constructed breaks
(such as bridges, culverts, pipes, or dams), or one or more natural
breaks (such as wetlands along the run of a stream, debris piles,
boulder fields, or a stream that flows underground) so long as a bed
and banks and an ordinary high water mark could be identified upstream
of the break. Id. at 37105-06.
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\2\ The 2015 Rule did not delineate jurisdiction specifically
based on categories with established scientific meanings such as
ephemeral, intermittent, and perennial waters that are based on the
source of the water and nature of the flow. See id. at 37076
(``Under the rule, flow in the tributary may be perennial,
intermittent, or ephemeral.''). Under the 2015 Rule, tributaries
also did not need to possess any specific volume, frequency, or
duration of flow, or to contribute flow to a traditional navigable
water in any given year or specific time period.
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In the 2015 Rule, the agencies did not expressly amend the
longstanding definition of ``adjacent'' (defined as ``bordering,
contiguous, or neighboring''), but the agencies added, for the first
time, a definition of ``neighboring'' that affected the interpretation
of ``adjacent.'' The 2015 Rule defined ``neighboring'' to encompass all
waters located within 100 feet of the ordinary high water mark of a
category (1) through (5) ``jurisdictional by rule'' water; all waters
located within the 100-year floodplain of a category (1) through (5)
``jurisdictional by rule'' water and not more than 1,500 feet from the
ordinary high water mark of such water; all waters located within 1,500
feet of the high tide line of a category (1) through (3)
``jurisdictional by rule'' water; and all waters within 1,500 feet of
the ordinary high water mark of the Great Lakes. Id. at 37105. The
entire water would be considered ``neighboring'' if any portion of it
lies within one of these zones. See id. These quantitative measures did
not appear in the proposed rule and were not sufficiently supported in
the administrative record for the final rule.
In addition to the six categories of ``jurisdictional by rule''
waters, the 2015 Rule identified certain waters that would be subject
to a case-specific analysis to determine if they had a ``significant
nexus'' to a water that is jurisdictional. Id. at 37104-05. The first
category consists of five specific types of waters in specific regions
of the country: Prairie potholes, Carolina and Delmarva bays, pocosins,
western vernal pools in California, and Texas coastal prairie wetlands.
Id. at 37105. The second category consists of all waters located within
the 100-year floodplain of any category (1) through (3)
``jurisdictional by rule'' water and all waters located within 4,000
feet of the high tide line or ordinary high water mark of any category
(1) through (5) ``jurisdictional by rule'' water. Id. These
quantitative measures did not appear in the proposed rule and were not
sufficiently supported in the administrative record for the final rule.
The 2015 Rule defined ``significant nexus'' to mean a water,
including wetlands, that either alone or in combination with other
similarly situated waters in the region, significantly affected the
chemical, physical, or biological integrity of a category (1) through
(3) ``jurisdictional by rule'' water. 80 FR 37106. ``For an effect to
be significant, it must be more than speculative or insubstantial.''
Id. The term ``in the region'' meant ``the watershed that drains to the
nearest'' primary water.\3\ Id. This definition was different from the
test articulated by the agencies in their 2008 Rapanos Guidance.\4\
That guidance interpreted ``similarly situated'' to include all
wetlands (not waters) adjacent to the same tributary.
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\3\ In this notice, a ``primary water'' is a category (1)
through (3) ``jurisdictional by rule'' water as defined in the 2015
Rule.
\4\ See U.S. EPA and U.S. Army Corps of Engineers. Clean Water
Act Jurisdiction Following the U.S. Supreme Court's Decision in
Rapanos v. United States & Carabell v. United States at 1 (Dec. 2,
2008) (``Rapanos Guidance''), available at https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf. The agencies
acknowledge that the Rapanos Guidance does not impose legally
binding requirements, see id. at 4 n.17, but believe that this
guidance is relevant to the discussion in this notice.
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Under the 2015 Rule, to determine whether a water, alone or in
combination with similarly situated waters across the watershed of the
nearest primary water, had a significant nexus, one had to consider
nine functions such as sediment trapping, runoff storage, provision of
life cycle dependent aquatic habitat, and other functions. It was
sufficient for determining whether a water had a significant nexus
under the 2015 Rule if any single function performed by the water,
alone or together with similarly situated waters in the region,
contributed significantly to the chemical, physical, or biological
integrity of the nearest category (1) through (3) ``jurisdictional by
rule'' water. Id. Taken together, the enumeration of the nine functions
and the more expansive consideration of ``similarly situated waters in
the region'' in the 2015 Rule means that the vast majority of water
features in the United States may have come within the jurisdictional
purview of the Federal government.\5\
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\5\ ``[T]he vast majority of the nation's water features are
located within 4,000 feet of a covered tributary, traditional
navigable water, interstate water, or territorial sea.'' U.S. EPA
and Department of the Army, Economic Analysis of the EPA-Army Clean
Water Rule at 11 (May 20, 2015) (``2015 Rule Economic Analysis'')
(Docket ID: EPA-HQ-OW-2011-0880-20866), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20866.
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The 2015 Rule also retained exclusions from the definition of
``waters of the United States'' for prior converted cropland and waste
treatment systems. Id. at 37105. In addition, the agencies codified
several exclusions that, in part, reflected longstanding agency
practice and added others such as ``puddles'' and ``swimming pools'' in
response to concerns raised by stakeholders during the public comment
period on the proposed 2015 Rule. Id. at 37096-98, 37105.
B. Legal Challenges to the 2015 Rule
Following the 2015 Rule's publication, 31 States \6\ and 53 non-
state
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parties, including environmental groups and groups representing
farming, recreational, forestry, and other interests, filed complaints
and petitions for review in multiple federal district \7\ and appellate
\8\ courts challenging the 2015 Rule. In those cases, the challengers
alleged numerous procedural deficiencies in the development and
promulgation of the 2015 Rule and substantive deficiencies in the 2015
Rule itself. Some challengers argued that the 2015 Rule was too
expansive, while others argued that it excluded too many waters from
federal jurisdiction.
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\6\ Alabama, Alaska, Arizona, Arkansas, Colorado, Florida,
Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico
(Environment Department and State Engineer), North Carolina
(Department of Environment and Natural Resources), North Dakota,
Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas,
Utah, West Virginia, Wisconsin, and Wyoming. Iowa joined the legal
challenge later in the process, bringing the total to 32 States.
Colorado, New Mexico, and Wisconsin have since withdrawn from
litigation against the 2015 Rule.
\7\ U.S. District Courts for the Northern and Southern District
of Georgia, District of Minnesota, District of North Dakota,
Southern District of Ohio, Northern District of Oklahoma, Southern
District of Texas, District of Arizona, Northern District of
Florida, District of the District of Columbia, Western District of
Washington, Northern District of California, and Northern District
of West Virginia. In April 2019, an additional challenge against the
2015 Rule was filed in the U.S. District Court for the District of
Oregon.
\8\ U.S. Court of Appeals for the Second, Fifth, Sixth, Eighth,
Ninth, Tenth, Eleventh, and District of Columbia Circuits.
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The day before the 2015 Rule's August 28, 2015 effective date, the
U.S. District Court for the District of North Dakota preliminarily
enjoined the 2015 Rule in the 13 States that challenged the rule in
that court.\9\ The district court found those States were ``likely to
succeed'' on the merits of their challenge to the 2015 Rule because,
among other reasons, ``it appears likely that the EPA has violated its
Congressional grant of authority in its promulgation of the Rule.''
North Dakota v. EPA, 127 F. Supp. 3d 1047, 1051 (D.N.D. 2015). In
particular, the court noted concern that the 2015 Rule's definition of
``tributary'' ``includes vast numbers of waters that are unlikely to
have a nexus to navigable waters.'' Id. at 1056. Further, the court
found that ``it appears likely the EPA failed to comply with
[Administrative Procedure Act (APA)] requirements when promulgating the
Rule,'' suggesting that certain distance-based measures were not a
logical outgrowth of the proposal to the 2015 Rule. Id. at 1058. No
party sought an interlocutory appeal.
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\9\ Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri,
Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota,
and Wyoming. Iowa's motion to intervene in the case was granted
after issuance of the preliminary injunction. In May 2019, the court
granted motions from Colorado and New Mexico to withdraw from the
litigation and lifted the preliminary injunction as to Colorado and
New Mexico. Order, North Dakota v. EPA, No. 3:15-cv-00059 (D.N.D.
May 14, 2019). At the same time, the court stated that the
preliminary injunction would remain in effect as to a plaintiff-
intervenor that represents ten counties in New Mexico. The agencies
filed a motion seeking clarification of the applicability of the
court's preliminary injunction to those ten counties in New Mexico.
Defendants' Motion for Clarification Regarding the Scope of the
Court's Preliminary Injunction, North Dakota v. EPA, No. 3:15-cv-
00059 (D.N.D. May 24, 2019). As of the time of signature of this
final rule, that motion is pending before the court.
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The numerous petitions for review filed in the courts of appeals
were consolidated in the U.S. Court of Appeals for the Sixth Circuit.
In that litigation, State and industry petitioners raised concerns
about whether the 2015 Rule violated the Constitution and the CWA and
whether its promulgation violated the APA and other statutes.
Environmental petitioners also challenged the 2015 Rule, claiming that
the 2015 Rule was too narrow because of the distance limitations and
other issues. On October 9, 2015, approximately six weeks after the
2015 Rule took effect in the 37 States, the District of Columbia, and
U.S. Territories that were not subject to the preliminary injunction
issued by the District of North Dakota, the Sixth Circuit stayed the
2015 Rule nationwide after concluding, among other things, that State
petitioners had demonstrated ``a substantial possibility of success on
the merits of their claims.'' In re EPA & Dep't of Def. Final Rule, 803
F.3d 804, 807 (6th Cir. 2015) (``In re EPA'').
On January 13, 2017, the U.S. Supreme Court granted certiorari on
the question of whether the courts of appeals have original
jurisdiction to review challenges to the 2015 Rule. See Nat'l Ass'n of
Mfrs. v. Dep't of Def., 137 S. Ct. 811 (2017). The Sixth Circuit
granted petitioners' motion to hold in abeyance the briefing schedule
in the litigation challenging the 2015 Rule pending a Supreme Court
decision on the question of the court of appeals' jurisdiction. On
January 22, 2018, the Supreme Court, in a unanimous opinion, held that
the 2015 Rule is subject to direct review in the district courts. Nat'l
Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 624 (2018). Throughout
the pendency of the Supreme Court litigation (and for a short time
thereafter), the Sixth Circuit's nationwide stay remained in effect. In
response to the Supreme Court's decision, on February 28, 2018, the
Sixth Circuit lifted the stay and dismissed the corresponding petitions
for review. See In re Dep't of Def. & EPA Final Rule, 713 Fed. Appx.
489 (6th Cir. 2018).
Since the Supreme Court's jurisdictional ruling, district court
litigation regarding the 2015 Rule has resumed. At this time, the 2015
Rule continues to be subject to a preliminary injunction issued by the
District of North Dakota as to 12 States: Alaska, Arizona, Arkansas,
Idaho, Iowa, Missouri, Montana, Nebraska, Nevada, North Dakota, South
Dakota, and Wyoming.\10\ The 2015 Rule also is subject to a preliminary
injunction issued by the U.S. District Court for the Southern District
of Georgia as to 11 more States: Georgia, Alabama, Florida, Indiana,
Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia,
and Wisconsin. Georgia v. Pruitt, 326 F. Supp. 3d 1356, 1364 (S.D. Ga.
2018). The Southern District of Georgia has since issued an order
remanding the 2015 Rule to the agencies, finding that the 2015 Rule
exceeded the agencies' statutory authority under the CWA and was
promulgated in violation of the APA. Georgia v. Wheeler, No. 2:15-cv-
079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019). ``[I]n light of the
serious defects identified,'' the court retained its preliminary
injunction against the 2015 Rule. Id. at *36.
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\10\ As of the date this final rule was signed, it is unclear
whether the North Dakota district court's preliminary injunction
also applies to New Mexico. See supra note 10.
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In September 2018, the U.S. District Court for the Southern
District of Texas issued a preliminary injunction against the 2015 Rule
in response to motions filed by the States of Texas, Louisiana, and
Mississippi and several business associations, finding that enjoining
the rule would provide ``much needed governmental, administrative, and
economic stability'' while the rule undergoes judicial review. See
Texas v. EPA, No. 3:15-cv-162, 2018 WL 4518230, at *1 (S.D. Tex. Sept.
12, 2018). The court observed that if it did not temporarily enjoin the
rule, ``it risks asking the states, their governmental subdivisions,
and their citizens to expend valuable resources and time
operationalizing a rule that may not survive judicial review.'' Id. In
May 2019, the court remanded the 2015 Rule to the agencies on the
grounds that the rule violated the APA. Specifically, the court found
that the rule violated the APA's notice and comment requirements
because: (1) The 2015 Rule's definition of ``adjacent'' waters (which
relied on distance-based limitations) was not a ``logical outgrowth''
of the proposal's definition of ``adjacent'' waters (which relied on
ecologic and hydrologic criteria); and (2) the agencies denied
interested parties an opportunity to comment on the final version of
the Connectivity Report,\11\ which served as the technical basis for
the final rule. See Texas v. EPA, No.
[[Page 56630]]
3:15-cv-162, 2019 WL 2272464 (S.D. Tex. May 28, 2019).
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\11\ U.S. EPA. Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the Scientific Evidence
(Jan. 2015) (EPA/600/R-14/475F).
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Moreover, in July 2019, the U.S. District Court for the District of
Oregon issued a preliminary injunction against the 2015 Rule in the
State of Oregon. Order, Or. Cattlemen's Ass'n v. EPA, No. 19-00564 (D.
Or. July 26, 2019). As a result, at this time, the 2015 Rule is
enjoined in more than half of the States.\12\
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\12\ Prior to this final rule, the applicability of the 2015
Rule in New Mexico has been unclear. See supra note 10.
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Three additional States (Ohio, Michigan, and Tennessee) sought a
preliminary injunction against the 2015 Rule in the U.S. District Court
for the Southern District of Ohio. In March 2019, the court denied the
States' motion, finding that the States had ``failed to demonstrate
that they will suffer imminent and irreparable harm absent an
injunction.'' See Ohio v. EPA, No. 2:15-cv-02467, 2019 WL 1368850 (S.D.
Ohio Mar. 26, 2019). The court subsequently denied the States' motion
for reconsideration of its order denying the preliminary injunction
motion, and the States have since filed an appeal of the court's order
in the Sixth Circuit. See Ohio v. EPA, No. 2:15-cv-02467, 2019 WL
1958650 (S.D. Ohio May 2, 2019); Plaintiffs' Notice of Appeal, Ohio v.
EPA, No. 2:15-cv-02467 (S.D. Ohio May 28, 2019).
Parties challenging the 2015 Rule in the U.S. District Court for
the Northern District of Oklahoma, including the State of Oklahoma and
the U.S. Chamber of Commerce, also filed a motion for a preliminary
injunction against the 2015 Rule. In May 2019, the court denied the
parties' motion, finding that the parties had ``not shown that they
will suffer irreparable harm if the 2015 Rule is permitted to remain in
effect while this case is pending.'' See Oklahoma v. EPA, No. 4:15-cv-
00381, slip. op. at 11-12 (N.D. Okla. May 29, 2019). Proceedings in
this case are stayed pending the parties' appeal of the court's order
denying a preliminary injunction to the Tenth Circuit. See Order,
Oklahoma v. EPA, No. 4:15-cv-00381 (N.D. Okla. June 14, 2019).
Finally, an additional motion for a preliminary injunction against
the 2015 Rule is pending in the U.S. District Court for the Western
District of Washington. See Motion for Preliminary Injunction, Wash.
Cattlemen's Ass'n v. EPA, No. 19-00569 (W.D. Wash. June 14, 2019).
C. Executive Order 13778 and the ``Step One'' Notice of Proposed
Rulemaking and Supplemental Notice of Proposed Rulemaking
On February 28, 2017, the President issued Executive Order 13778
entitled ``Restoring the Rule of Law, Federalism, and Economic Growth
by Reviewing the `Waters of the United States' Rule.'' Section 1 of the
Executive Order states, ``[i]t is in the national interest to ensure
the Nation's navigable waters are kept free from pollution, while at
the same time promoting economic growth, minimizing regulatory
uncertainty, and showing due regard for the roles of the Congress and
the States under the Constitution.'' The Executive Order directs the
EPA and the Department of the Army to review the 2015 Rule for
consistency with the policy outlined in Section 1 of the Order and to
issue a proposed rule rescinding or revising the 2015 Rule as
appropriate and consistent with law (Section 2). The Executive Order
also directs the agencies to ``consider interpreting the term
`navigable waters' . . . in a manner consistent with'' Justice Scalia's
plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006)
(Section 3).
On March 6, 2017, the agencies published a notice of intent to
review the 2015 Rule and provide notice of a forthcoming proposed
rulemaking consistent with the Executive Order. 82 FR 12532. Shortly
thereafter, the agencies announced that they would implement the
Executive Order in a two-step approach. On July 27, 2017, the agencies
published the ``Step One'' NPRM (82 FR 34899) that proposed to repeal
the 2015 Rule and recodify the regulatory text that governed prior to
the promulgation of the 2015 Rule, consistent with Supreme Court
decisions and informed by applicable guidance documents and
longstanding agency practice. The agencies invited comment on the NPRM
over a 62-day period. On July 12, 2018, the agencies published a
supplemental notice of proposed rulemaking to clarify, supplement, and
seek additional comment on the Step One notice of proposed rulemaking.
83 FR 32227. The agencies invited comment on the SNPRM over a 30-day
period.
In developing this final rule, the agencies reviewed approximately
690,000 public comments received on the NPRM and approximately 80,000
comments received on the SNPRM from a broad spectrum of interested
parties. With the NPRM and SNPRM the agencies sought comment on the
repeal of the 2015 Rule, the recodification of the prior regulations,
the considerations and agencies' reasons for the proposal, and proposed
conclusions that the agencies exceeded their authority under the CWA.
In addition, the public could comment on all aspects of the NPRM, the
economic analysis for the NPRM, and the SNPRM. Some commenters
expressed support for the agencies' proposal to repeal the 2015 Rule,
stating, among other things, that the 2015 Rule exceeds the agencies'
statutory authority. Other commenters opposed the proposal, stating,
among other things, that repealing the 2015 Rule will increase
regulatory uncertainty and adversely impact water quality. A complete
response to comment document is available in the docket for this final
rule at Docket ID No. EPA-HQ-OW-2017-0203.
D. The Applicability Date Rule
On November 22, 2017, the agencies published and solicited public
comment on a proposal to establish an applicability date for the 2015
Rule that would be two years from the date of any final rule. 82 FR
55542. On February 6, 2018, the agencies issued a final rule, 83 FR
5200, adding an applicability date to the 2015 Rule. The applicability
date was established as February 6, 2020. When adding an applicability
date to the 2015 Rule, the agencies clarified that they would continue
to implement nationwide the previous regulatory definition of ``waters
of the United States,'' consistent with the practice and procedures the
agencies implemented long before and immediately following the 2015
Rule pursuant to the preliminary injunction issued by the District of
North Dakota and the nationwide stay issued by the Sixth Circuit. The
agencies further explained that the final applicability date rule would
ensure regulatory certainty and consistent implementation of the CWA
nationwide while the agencies reconsider the 2015 Rule and pursue
further rulemaking to develop a new definition of ``waters of the
United States.''
The applicability date rule was challenged in a number of district
courts by States and environmental organizations. On August 16, 2018,
the U.S. District Court for the District of South Carolina granted
summary judgment in favor of the plaintiffs and enjoined the
applicability date rule nationwide. South Carolina Coastal Conservation
League, et al., v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. Aug. 16, 2018).
In addition, on November 26, 2018, the U.S. District Court for the
Western District of Washington vacated the applicability date rule
nationwide. Puget Soundkeeper Alliance, et al. v.
[[Page 56631]]
Andrew Wheeler, et al., No. C15-1342-JCC (W.D. Wash. Nov. 26, 2018). As
a result, the 2015 Rule is now in effect in 22 States.\13\ The 2015
Rule continues to be subject to preliminary injunctions issued by the
U.S. District Court for the District of North Dakota, the U.S. District
Court for the District of Oregon, the U.S. District Court for the
Southern District of Georgia, and the U.S. District Court for the
Southern District of Texas in a total of 27 States.\14\
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\13\ To assist the public in keeping up with the changing
regulatory landscape of federal jurisdiction under the CWA, the EPA
has posted a map of current effective regulation by state online at
https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update.
\14\ The agencies filed a motion seeking clarification of the
applicability of the North Dakota district court's preliminary
injunction to New Mexico. See supra note 10. That motion remains
pending before the court as of the time of signature of this final
rule.
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III. Basis for Repealing the 2015 Rule
A. Legal Authority To Repeal
The agencies' ability to repeal an existing regulation through
notice-and-comment rulemaking is well-grounded in the law. The APA
defines ``rule making'' to mean ``agency process for formulating,
amending, or repealing a rule.'' 5 U.S.C. 551(5). The CWA complements
this authority by providing the Administrator with broad authority to
``prescribe such regulations as are necessary to carry out the
functions under this Act.'' 33 U.S.C. 1361(a). This broad authority
includes issuing regulations that repeal or revise CWA implementing
regulations promulgated by a prior administration.
As discussed in the NPRM and SNPRM, ``agencies are free to change
their existing policies as long as they provide a reasoned explanation
for the change.'' See Encino Motorcars, LLC v. Navarro, 136 S. Ct.
2117, 2125 (2016) (citations omitted); see also 82 FR 34901; 83 FR
32231. Agencies may seek to revise or repeal regulations based on
changes in circumstance or changes in statutory interpretation or
policy judgments. See, e.g., FCC v. Fox Television Stations, Inc., 556
U.S. 502, 514-15 (2009) (``Fox''); Ctr. for Sci. in Pub. Interest v.
Dep't of Treasury, 797 F.2d 995, 998-99 & n.1 (D.C. Cir. 1986). Indeed,
the agencies' interpretation of the statutes they administer, such as
the CWA, are not ``instantly carved in stone''; quite the contrary, the
agencies ``must consider varying interpretations and the wisdom of
[their] policy on a continuing basis, . . . for example, in response to
. . . a change in administrations.'' Nat'l Cable & Telecommc'ns Ass'n
v. Brand X internet Servs., 545 U.S. 967, 981-82 (2005) (``Brand X'')
(internal quotation marks omitted) (quoting Chevron U.S.A., Inc. v.
NRDC, 467 U.S. 837, 863-64 (1984)) (citing Motor Vehicle Mfrs. Ass'n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J.,
concurring in part and dissenting in part)). As such, a revised
rulemaking based ``on a reevaluation of which policy would be better in
light of the facts'' is ``well within an agency's discretion,'' and
``[a] change in administration brought about by the people casting
their votes is a perfectly reasonable basis for an executive agency's
reappraisal'' of its regulations and programs. Nat'l Ass'n of Home
Builders v. EPA, 682 F.3d 1032, 1038 & 1043 (D.C. Cir. 2012)
(``NAHB'').
In providing a reasoned explanation for a change in position, ``an
agency must also be cognizant that longstanding policies may have
engendered serious reliance interests that must be taken into
account.'' Encino Motorcars, 136 S. Ct. at 2126 (internal quotation
marks and citation omitted). In Encino Motorcars, the Supreme Court
held that the Department of Labor issued a regulation without the
necessary ``reasoned explanation'' where the Department ``offered
barely any explanation'' for changing its position despite ``the
significant reliance interests involved.'' Id. The Court found that the
Department ``did not analyze or explain'' why the statute should be
interpreted in the manner reflected in the new rule and ``said almost
nothing'' to explain whether there were ``good reasons for the new
policy.'' Id. at 2127. The Court explained that while a ``summary
discussion may suffice in other circumstances,'' the Department's
explanation was particularly inadequate given the ``decades of industry
reliance on the Department's prior policy.'' Id. at 2126.
The 2015 Rule, unlike the decades-old regulation discussed in
Encino Motorcars, has not engendered significant reliance interests. As
explained in Section II.B, the 2015 Rule has never been in effect
nationwide, and the applicability of the rule has remained in flux due
to a shifting set of preliminary injunctions barring implementation of
the rule in different States across the country. Indeed, over the past
year alone, the number of States subject to the 2015 Rule has changed
multiple times. Regardless, the agencies have provided ample
justification for their change in position. As reflected in this
preamble to the final rule, the agencies have carefully analyzed their
statutory and constitutional authority, along with relevant case law,
and have provided a detailed explanation of their reasons for deciding
to repeal the 2015 Rule and restore the pre-existing regulations.
Some commenters found that the agencies provided a reasoned
explanation to repeal the 2015 Rule given the agencies' concerns that
the 2015 Rule was inconsistent with the agencies' statutory authority
and Supreme Court precedent. Commenters also found that the agencies
provided good reasons for the change in policy, such as the desire to
balance the objective, goals, and policies of the CWA. Other commenters
asserted that the agencies have not satisfied the legal requirements
for revising an existing regulation. Some of these commenters stated
that the agencies have failed to provide a reasoned explanation to
support this action or the agencies' change in position and noted that
a change in administrations is insufficient, in and of itself, to
support this rule.
As referenced above, the Supreme Court and lower courts have
acknowledged that an agency may repeal regulations promulgated by a
prior administration based on changes in agency policy where ``the
agency adequately explains the reasons for a reversal of policy.''
Brand X, 545 U.S. at 981. The agencies need not demonstrate that the
reasons for a new policy are better than the reasons for the old one
because ``it suffices that the new policy is permissible under the
statute, that there are good reasons for it, and that the agency
believes it to be better, which the conscious change of course
adequately indicates.'' Fox, 556 U.S. at 515. Further, ``[w]hen an
agency changes its existing position, it need not always provide a more
detailed justification than what would suffice for a new policy created
on a blank slate.'' Encino Motorcars, 136 S. Ct. at 2125 (citations and
internal quotation marks omitted).
Consistent with the APA and applicable case law, the agencies have
provided a reasoned explanation for repealing the 2015 Rule and
recodifying the pre-existing regulations, including that the 2015 Rule
exceeded the scope of statutory authority in certain respects. The
agencies acknowledge, as some commenters observed, that certain legal
interpretations and conclusions supporting the agencies' rationale for
this rulemaking are inconsistent with the agencies' prior
administrative findings and previous positions taken by the United
States in legal briefs. However, so long as an agency ``adequately
explains the reasons for a reversal of policy, change is not
[[Page 56632]]
invalidating.'' Fox, 545 U.S. at 981 (citation and internal quotation
marks omitted). Indeed, departing from a prior position is proper
where, as here, the agencies' change in position is based on a
considered evaluation of the relevant factors following a thorough
rulemaking process. Throughout this rulemaking process, the agencies
have clearly identified the issues the agencies were considering in
deciding whether to finalize this action, and the agencies solicited,
received, and considered many comments on those issues. See, e.g., 83
FR 32240-42, 32247-48. The agencies have also thoroughly explained
their rationale in this preamble to the final rule and in the
accompanying response to comments document.
B. Legal Background
1. The Clean Water Act
Congress amended the Federal Water Pollution Control Act (FWPCA),
or Clean Water Act (CWA) as it is commonly called,\15\ in 1972 to
address longstanding concerns regarding the quality of the nation's
waters and the Federal government's ability to address those concerns
under existing law. Prior to 1972, the ability to control and redress
water pollution in the nation's waters largely fell to the U.S. Army
Corps of Engineers (``Corps'') under the Rivers and Harbors Act of 1899
(RHA). While much of that statute focused on restricting obstructions
to navigation on the nation's major waterways, section 13 of the RHA
made it unlawful to discharge refuse ``into any navigable water of the
United States, or into any tributary of any navigable water from which
the same shall float or be washed into such navigable water.'' \16\ 33
U.S.C. 407. Congress had also enacted the Water Pollution Control Act
of 1948, Public Law 80-845, 62 Stat. 1155 (June 30, 1948), to address
interstate water pollution, and subsequently amended that statute in
1956 (giving the statute its current formal name), 1961, and 1965.
These early versions of the CWA promoted the development of pollution
abatement programs, required States to develop water quality standards,
and authorized the Federal government to bring enforcement actions to
abate water pollution.
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\15\ The FWPCA is commonly referred to as the CWA following the
1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566
(1977). For ease of reference, the agencies will generally refer to
the FWPCA in this notice as the CWA or the Act.
\16\ The term ``navigable water of the United States'' is a term
of art used to refer to waters subject to federal jurisdiction under
the RHA. See, e.g., 33 CFR 329.1. The term is not synonymous with
the phrase ``waters of the United States'' under the CWA, see id.,
and the general term ``navigable waters'' has different meanings
depending on the context of the statute in which it is used. See,
e.g., PPL Montana, LLC v. Montana, 132 S. Ct. 1215, 1228 (2012).
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These early statutory efforts, however, proved inadequate to
address the decline in the quality of the nation's waters, see City of
Milwaukee v. Illinois, 451 U.S. 304, 310 (1981), so Congress performed
a ``total restructuring'' and ``complete rewriting'' of the existing
statutory framework in 1972. Id. at 317 (quoting legislative history of
1972 amendments). That restructuring resulted in the enactment of a
comprehensive scheme designed to prevent, reduce, and eliminate
pollution in the nation's waters generally, and to regulate the
discharge of pollutants into navigable waters specifically. See, e.g.,
S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 385 (2006)
(``[T]he Act does not stop at controlling the `addition of pollutants,'
but deals with `pollution' generally[.]'').
The objective of the new statutory scheme was ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' 33 U.S.C. 1251(a). In order to meet that objective,
Congress declared two national goals: (1) ``that the discharge of
pollutants into the navigable waters be eliminated by 1985;'' and (2)
``that wherever attainable, an interim goal of water quality which
provides for the protection and propagation of fish, shellfish, and
wildlife and provides for recreation in and on the water be achieved by
July 1, 1983 . . . .'' Id. at 1251(a)(1)-(2).
Congress established several key policies that direct the work of
the agencies to effectuate those goals. For example, Congress declared
as a national policy ``that the discharge of toxic pollutants in toxic
amounts be prohibited; . . . that Federal financial assistance be
provided to construct publicly owned waste treatment works; . . . that
areawide waste treatment management planning processes be developed and
implemented to assure adequate control of sources of pollutants in each
State; . . . [and] that programs for the control of nonpoint sources of
pollution be developed and implemented in an expeditious manner so as
to enable the goals of this Act to be met through the control of both
point and nonpoint sources of pollution.'' Id. at 1251(a)(3)-(7).
Congress provided a major role for the States in implementing the
CWA, balancing the traditional power of States to regulate land and
water resources within their borders with the need for a national water
quality regulation. For example, the statute highlighted ``the policy
of the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution'' and ``to plan the development and use . . . of land and
water resources . . . .'' Id. at 1251(b). Congress also declared as a
national policy that States manage the major construction grant program
and implement the core permitting programs authorized by the statute,
among other responsibilities. Id. Congress added that ``[e]xcept as
expressly provided in this Act, nothing in this Act shall . . . be
construed as impairing or in any manner affecting any right or
jurisdiction of the States with respect to the waters (including
boundary waters) of such States.'' Id. at 1370.\17\ Congress also
pledged to provide technical support and financial aid to the States
``in connection with the prevention, reduction, and elimination of
pollution.'' Id. at 1251(b).
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\17\ 33 U.S.C. 1370 also prohibits authorized States from
adopting any limitations, prohibitions, or standards that are less
stringent than required by the CWA.
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To carry out these policies, Congress broadly defined ``pollution''
to mean ``the man-made or man-induced alteration of the chemical,
physical, biological, and radiological integrity of water,'' id. at
1362(19), to parallel the broad objective of the Act ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' Id. at 1251(a). Congress then crafted a non-
regulatory statutory framework to provide technical and financial
assistance to the States to prevent, reduce, and eliminate pollution in
the nation's waters generally. For example, section 105 of the Act,
``Grants for research and development,'' authorized EPA ``to make
grants to any State, municipality, or intermunicipal or interstate
agency for the purpose of assisting in the development of any project
which will demonstrate a new or improved method of preventing,
reducing, and eliminating the discharge into any waters of pollutants
from sewers which carry storm water or both storm water and
pollutants.'' 33 U.S.C. 1255(a)(1) (emphasis added). Section 105 also
authorized EPA ``to make grants to any State or States or interstate
agency to demonstrate, in river basins or portions thereof, advanced
treatment and environmental enhancement techniques to control pollution
from all sources . . . including nonpoint sources, . . . [and] . . . to
carry out the purposes of section 301 of this Act . . . for research
and demonstration projects for prevention of pollution of any waters
[[Page 56633]]
by industry including, but not limited to, the prevention, reduction,
and elimination of the discharge of pollutants.'' 33 U.S.C. 1255(b)-(c)
(emphasis added); see also id. at 1256(a) (authorizing EPA to issue
``grants to States and to interstate agencies to assist them in
administering programs for the prevention, reduction, and elimination
of pollution''). Section 108, ``Pollution control in the Great Lakes,''
authorized EPA to enter into agreements with any state to develop plans
for the ``elimination or control of pollution, within all or any part
of the watersheds of the Great Lakes.'' Id. at 1258(a) (emphasis
added); see also id. at 1268(a)(3)(C) (defining the ``Great Lakes
System'' as ``all the streams, rivers, lakes, and other bodies of water
within the drainage basin of the Great Lakes''). Similar broad
pollution control programs were created for other major watersheds,
including, for example, the Chesapeake Bay, see id. at 1267(a)(3), Long
Island Sound, see id. at 1269(c)(2)(D), and Lake Champlain. See id. at
1270(g)(2).
In addition to the Act's non-regulatory measures to control
pollution of the nation's waters generally, Congress created a federal
regulatory permitting program designed to address the discharge of
pollutants into a subset of those waters identified as ``navigable
waters,'' defined as ``the waters of the United States.'' Id. at
1362(7). Section 301 contains the key regulatory mechanism: ``Except as
in compliance with this section and sections 302, 306, 307, 318, 402,
and 404 of this Act, the discharge of any pollutant by any person shall
be unlawful.'' Id. at 1311(a). A ``discharge of a pollutant'' is
defined to include ``any addition of any pollutant to navigable waters
from any point source,'' such as a pipe, ditch or other ``discernible,
confined and discrete conveyance.'' Id. at 1362(12), (14). The term
``pollutant'' means ``dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment,
rock, sand, cellar dirt and industrial, municipal, and agricultural
waste discharged into water.'' Id. at 1362(6). Thus, it is unlawful to
discharge pollutants into waters of the United States from a point
source unless the discharge is in compliance with certain enumerated
sections of the CWA, including obtaining authorizations pursuant to the
section 402 National Pollutant Discharge Elimination System (NPDES)
permit program or the section 404 dredged or fill material permit
program. See id. at 1342 and 1344. Congress therefore hoped to achieve
the Act's objective ``to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters'' by addressing
pollution of all waters via non-regulatory means and federally
regulating the discharge of pollutants to the subset of waters
identified as ``navigable waters.'' \18\
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\18\ Members of Congress were aware when they drafted the 1972
CWA amendments that different types of the Nation's waters would be
subject to different degrees of federal control. For instance, in
House Debate regarding a proposed and ultimately failed amendment to
prohibit the discharge of pollutants to ground waters in addition to
navigable waters, Representative Don H. Clausen stated, ``Mr.
Chairman, in the early deliberations within the committee which
resulted in the introduction of H.R. 11896, a provision for ground
waters . . . was thoroughly reviewed and it was determined by the
committee that there was not sufficient information on ground waters
to justify the types of controls that are required for navigable
waters. I refer the gentleman to the objectives of this act as
stated in section 101(a). The objective of this act is to restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters. I call your attention to the fact that this does
not say the Nation's `navigable waters,' `interstate waters,' or
`intrastate waters.' It just says `waters.' This includes ground
waters.'' 118 Cong. Rec. at 10,667 (daily ed. March 28, 1972).
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Some commenters disagreed that the CWA distinguishes between the
``nation's waters'' and a subset of those waters known as the
``navigable waters.'' Many of these commenters suggested that the
agencies' interpretation is not supported by the text or structure of
the Act and is based instead on selectively quoting from and
mischaracterizing the Act's provisions. Other commenters argued that
the two terms are synonymous under the Act.
Fundamental principles of statutory interpretation support the
agencies' recognition of a distinction between the ``nation's waters''
and ``navigable waters.'' As the Supreme Court has observed, ``[w]e
assume that Congress used two terms because it intended each term to
have a particular, nonsuperfluous meaning.'' Bailey v. United States,
516 U.S. 137, 146 (1995) (recognizing the canon of statutory
construction against superfluity). Further, ``the words of a statute
must be read in their context and with a view to their place in the
overall statutory scheme.'' FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000) (internal quotation marks and citation
omitted); see also United Savings Ass'n v. Timbers of Inwood Forest
Associates, 484 U.S. 365, 371 (``Statutory construction . . . is a
holistic endeavor. A provision that may seem ambiguous in isolation is
often clarified by the remainder of the statutory scheme--because the
same terminology is used elsewhere in a context that makes its meaning
clear[.]'') (citation omitted). Here, the non-regulatory sections of
the CWA reveal Congress' intent to restore and maintain the integrity
of the nation's waters using federal assistance to support State and
local partnerships to control pollution in the nation's waters in
addition to a federal regulatory prohibition on the discharge of
pollutants into the navigable waters.
Under this statutory scheme, the States are responsible for
developing water quality standards for ``waters of the United States''
within their borders and reporting on the condition of those waters to
EPA every two years. 33 U.S.C. 1313, 1315. States must develop total
maximum daily loads (TMDLs) for waters that are not meeting established
water quality standards and must submit those TMDLs to EPA for
approval. Id. at 1313(d). States also have authority to issue water
quality certifications or waive certification for every federal permit
or license issued within their borders that may result in a discharge
to navigable waters. Id. at 1341.
These same regulatory authorities can be assumed by Indian tribes
under section 518 of the CWA, which authorizes the EPA to treat
eligible Indian tribes with reservations in a manner similar to States
for a variety of purposes, including administering each of the
principal CWA regulatory programs. Id. at 1377(e). In addition, States
and Tribes retain authority to protect and manage the use of those
waters that are not navigable waters under the CWA. See, e.g., id. at
1251(b), 1251(g), 1370, 1377(a). At this time, forty-seven States
administer the CWA section 402 permit program for those ``waters of the
United States'' within their boundaries,\19\ and two States (Michigan
and New Jersey) administer the section 404 permit program for those
waters that are assumable by States pursuant to section 404(g). At
present, no Tribes administer the section 402 or 404 programs, although
some are exploring the possibility.
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\19\ Three States (Massachusetts, New Hampshire, and New Mexico)
do not currently administer any part of the CWA section 402 program.
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The agencies have developed regulatory programs designed to ensure
that the full statute is implemented as Congress intended. See, e.g.,
Hibbs v. Winn, 542 U.S. 88, 101 (2004) (``A statute should be construed
so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant.''). This includes
pursuing the overall ``objective'' of the CWA to ``restore and
[[Page 56634]]
maintain the chemical, physical, and biological integrity of the
Nation's waters,'' 33 U.S.C. 1251(a), while implementing the specific
``policy'' directives from Congress to, among other things,
``recognize, preserve, and protect the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution'' and ``to
plan the development and use . . . of land and water resources.'' Id.
at 1251(b); see also Webster's II, New Riverside University Dictionary
(1994) (defining ``policy'' as a ``plan or course of action, as of a
government[,] designed to influence and determine decisions and
actions;'' an ``objective'' is ``something worked toward or aspired to:
Goal'').\20\ The agencies therefore recognize a distinction between the
specific word choices of Congress, including the need to develop
regulatory programs that aim to accomplish the goals of the Act while
implementing the specific policy directives of Congress.\21\ To do so,
the agencies must determine what Congress had in mind when it defined
``navigable waters'' in 1972 as simply ``the waters of the United
States.''
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\20\ The legislative history of the CWA further illuminates the
distinction between the terms ``policy'' and ``objective,'' or
``goal.'' As Congress drafted the 1972 CWA amendments, the Senate
bill set the ``no-discharge of pollutants into the navigable water
by 1985'' provision as a policy whereas the House bill set it as a
goal. The Act was ultimately passed with the ``no-discharge by
1985'' provision established as a goal. See 33 U.S.C 1251(a)(1). In
House consideration of the Conference Report, Congressman Jones
captured the policy versus goal distinction in Section 101(a)(1) as
follows: ``The objective of this legislation is to restore and
preserve for the future the integrity of our Nation's waters. The
bill sets forth as a national goal the complete elimination of all
discharges into our navigable waters by 1985, but . . . the
conference report states clearly that achieving the 1985 target date
is a goal, not a national policy. As such, it serves as a focal
point for long-range planning, and for research and development in
water pollution control technology. . . . While it is our hope that
we can succeed in eliminating all discharge into our waters by 1985,
without unreasonable impact on the national life, we recognized in
this report that too many imponderables exist, some still beyond our
horizons, to prescribe this goal today as a legal requirement.'' 118
Cong. Rec. H. 33749 (daily ed. October 4, 1972).
\21\ See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S.
519, 544, (2012) (``Where Congress uses certain language in one part
of a statute and different language in another, it is generally
presumed that Congress acts intentionally.''); Russello v. United
States, 464 U.S. 16, 23 (1983) (``[Where] Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion
or exclusion.''); see also Crandon v. United States, 494 U.S. 152,
158 (1990) (``In determining the meaning of the statute, we look not
only to the particular statutory language, but to the design of the
statute as a whole and to its object and policy.'') (emphasis
added).
---------------------------------------------------------------------------
Congress' authority to regulate ``navigable waters'' derives from
its power to regulate the ``channels of interstate commerce'' under the
Commerce Clause. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); see
also United States v. Lopez, 514 U.S. 549, 558-59 (1995) (describing
the ``channels of interstate commerce'' as one of three areas of
congressional authority under the Commerce Clause). The Supreme Court
explained in SWANCC that the term ``navigable'' indicates ``what
Congress had in mind as its authority for enacting the Clean Water Act:
Its traditional jurisdiction over waters that were or had been
navigable in fact or which could reasonably be so made.'' 531 U.S. 159,
172 (2001). The Court further explained that nothing in the legislative
history of the Act provides any indication that ``Congress intended to
exert anything more than its commerce power over navigation.'' Id. at
168 n.3. The Supreme Court, however, has recognized that Congress
intended ``to exercise its powers under the Commerce Clause to regulate
at least some waters that would not be deemed `navigable' under the
classical understanding of that term.'' Riverside Bayview, 474 U.S. at
133; see also SWANCC, 531 U.S. at 167.
The classical understanding of the term navigable was first
articulated by the Supreme Court in The Daniel Ball:
Those rivers must be regarded as public navigable rivers in law
which are navigable in fact. And they are navigable in fact when
they are used, or are susceptible of being used, in their ordinary
condition, as highways of commerce, over which trade and travel are
or may be conducted in the customary modes of trade and travel on
water. And they constitute navigable waters of the United States
within the meaning of the Acts of Congress, in contradistinction
from the navigable waters of the States, when they form in their
ordinary condition by themselves, or by uniting with other waters, a
continued highway over which commerce is or may be carried on with
other States or foreign countries in the customary modes in which
such commerce is conducted by water.
77 U.S. (10 Wall.) 557, 563 (1871). Over the years, this traditional
test has been expanded to include waters that had been used in the past
for interstate commerce, see Economy Light & Power Co. v. United
States, 256 U.S. 113, 123 (1921), and waters that are susceptible for
use with reasonable improvement. See United States v. Appalachian Elec.
Power Co., 311 U.S. 377, 407-10 (1940).
By the time the 1972 CWA amendments were enacted, the Supreme Court
had held that Congress' authority over the channels of interstate
commerce was not limited to regulation of the channels themselves but
could extend to activities necessary to protect the channels. See
Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 523
(1941) (``Congress may exercise its control over the non-navigable
stretches of a river in order to preserve or promote commerce on the
navigable portions.''). The Supreme Court also had clarified that
Congress could regulate waterways that formed a part of a channel of
interstate commerce, even if they are not themselves navigable or do
not cross state boundaries. See Utah v. United States, 403 U.S. 9, 11
(1971).
These developments were discussed during the legislative process
leading up to the passage of the 1972 CWA amendments, and certain
members referred to the scope of the amendments as encompassing
waterways that serve as a ``link in the chain'' of interstate commerce
as it flows through various channels of transportation, such as
railroads and highways. See, e.g., 118 Cong. Rec. 33756-57 (1972)
(statement of Rep. Dingell); 118 Cong. Rec. 33699 (Oct. 4, 1972)
(statement of Sen. Muskie).\22\ Other references suggest that
congressional committees at least contemplated applying the ``control
requirements'' of the Act ``to the navigable waters, portions thereof,
and their tributaries.'' S. Rep. No. 92-414, 92nd Cong., 1st Sess. at
77 (1971). And in 1977, when Congress authorized State assumption over
the section 404 dredged or fill material permitting program, Congress
limited the scope of assumable waters by requiring the Corps to retain
permitting authority over Rivers and Harbors Act waters (as identified
by The Daniel Ball test) plus wetlands adjacent to those waters, minus
historic use only waters. See 33 U.S.C. 1344(g)(1).\23\ This suggests
that Congress had in mind a broader scope of waters subject to CWA
jurisdiction than waters traditionally understood as navigable. See
SWANCC, 531 U.S. at 171; Riverside Bayview, 474 U.S. at 138 n.11.
---------------------------------------------------------------------------
\22\ The agencies recognize that individual member statements
are not a substitute for full congressional intent, but they do help
provide context for issues that were discussed during the
legislative debates. For a detailed discussion of the legislative
history of the 1972 CWA amendments, see Albrecht & Nickelsburg,
Could SWANCC Be Right? A New Look at the Legislative History of the
Clean Water Act, 32 ELR 11042 (Sept. 2002).
\23\ For a detailed discussion of the legislative history
supporting the enactment of section 404(g), see Final Report of the
Assumable Waters Subcommittee (May 2017), App. F.
---------------------------------------------------------------------------
Thus, Congress intended to assert federal authority over more than
just waters traditionally understood as navigable, and Congress rooted
that authority in ``its commerce power over navigation.'' SWANCC, 531
U.S. at 168 n.3. However, there must be a limit to that authority and
to what water is
[[Page 56635]]
subject to federal jurisdiction. How the agencies should exercise that
authority has been the subject of dispute for decades, but the Supreme
Court on three occasions has analyzed the issue and provided some
instructional guidance.
2. U.S. Supreme Court Precedent
a. Adjacent Wetlands
In Riverside Bayview, the Supreme Court considered the Corps'
assertion of jurisdiction over ``low-lying, marshy land'' immediately
abutting a water traditionally understood as navigable on the grounds
that it was an ``adjacent wetland'' within the meaning of the Corps'
then-existing regulations. 474 U.S. at 124. The Court addressed the
question whether non-navigable wetlands may be regulated as ``waters of
the United States'' on the basis that they are ``adjacent to''
navigable-in-fact waters and ``inseparably bound up with'' them because
of their ``significant effects on water quality and the aquatic
ecosystem.'' See id. at 131-35 & n.9.
In determining whether to give deference to the Corps' assertion of
jurisdiction over adjacent wetlands, the Court acknowledged the
difficulty in determining where the limits of federal jurisdiction end,
noting that the line is somewhere between open water and dry land:
In determining the limits of its power to regulate discharges
under the Act, the Corps must necessarily choose some point at which
water ends and land begins. Our common experience tells us that this
is often no easy task: the transition from water to solid ground is
not necessarily or even typically an abrupt one. Rather, between
open waters and dry land may lie shallows, marshes, mudflats,
swamps, bogs--in short, a huge array of areas that are not wholly
aquatic but nevertheless fall far short of being dry land. Where on
this continuum to find the limit of ``waters'' is far from obvious.
Id. at 132 (emphasis added). Within this statement, the Supreme Court
identifies a basic principle for adjacent wetlands: The limits of
jurisdiction lie within the ``continuum'' or ``transition'' ``between
open waters and dry land.'' Observing that Congress intended the CWA
``to regulate at least some waters that would not be deemed
`navigable,''' the Court therefore held that it is ``a permissible
interpretation of the Act'' to conclude that ``a wetland that actually
abuts on a navigable waterway'' falls within the ``definition of
`waters of the United States.''' Id. at 133, 135. Thus, a wetland that
abuts a water traditionally understood as navigable is subject to CWA
jurisdiction because it is ``inseparably bound up with the `waters' of
the United States.'' Id. at 134. ``This holds true even for wetlands
that are not the result of flooding or permeation by water having its
source in adjacent bodies of open water.'' Id. The Court also noted
that the agencies can establish categories of jurisdiction for adjacent
wetlands. See id. at 135 n.9.
The Supreme Court in Riverside Bayview declined to decide whether
wetlands that are not adjacent to navigable waters could also be
regulated by the agencies. See id. at 124 n.2 & 131 n.8. In SWANCC a
few years later, however, the Supreme Court analyzed a similar question
but in the context of an abandoned sand and gravel pit located some
distance from a traditional navigable water, with excavation trenches
that ponded--some only seasonally--and served as habitat for migratory
birds. 531 U.S. at 162-64. The Supreme Court rejected the government's
stated rationale for asserting jurisdiction over these ``nonnavigable,
isolated, intrastate waters'' as outside the scope of CWA jurisdiction.
Id. at 171-72. In doing so, the Supreme Court noted that Riverside
Bayview upheld ``jurisdiction over wetlands that actually abutted on a
navigable waterway'' because the wetlands were ``inseparably bound up
with the `waters' of the United States.'' Id. at 167.\24\ As summarized
by the SWANCC majority:
---------------------------------------------------------------------------
\24\ For additional context, at oral argument during Riverside
Bayview, the government attorney characterized the wetland at issue
as ``in fact an adjacent wetland, adjacent--by adjacent, I mean it
is immediately next to, abuts, adjoins, borders, whatever other
adjective you might want to use, navigable waters of the United
States.'' Transcript of Oral Argument at 16, United States v.
Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (No. 84-701).
It was the significant nexus between the wetlands and
``navigable waters'' that informed our reading of the CWA in
Riverside Bayview Homes. Indeed, we did not ``express any opinion''
on the ``question of authority of the Corps to regulate discharges
of fill material into wetlands that are not adjacent to bodies of
open water. . . . In order to rule for [the Corps] here, we would
have to hold that the jurisdiction of the Corps extends to ponds
that are not adjacent to open water. But we conclude that the text
---------------------------------------------------------------------------
of the statute will not allow this.
Id. at 167-68 (citations omitted).
The Court also rejected the argument that the use of the abandoned
ponds by migratory birds fell within the power of Congress to regulate
activities that in the aggregate have a substantial effect on
interstate commerce, or that the CWA regulated the use of the ponds as
a municipal landfill because such use was commercial in nature. Id. at
173. Such arguments, the Court noted, raised ``significant
constitutional questions.'' Id. ``Where an administrative
interpretation of a statute invokes the outer limits of Congress'
power, we expect a clear indication that Congress intended that
result.'' Id. at 172-73 (``Congress does not casually authorize
administrative agencies to interpret a statute to push the limit of
congressional authority.''). This is particularly true ``where the
administrative interpretation alters the federal-state framework by
permitting federal encroachment upon a traditional state power.'' Id.
at 173; see also Atascadero State Hospital v. Scanlon, 473 U.S. 234,
242-43 (1985) (``If Congress intends to alter the `usual constitutional
balance between the States and the Federal Government,' it must make
its intention to do so `unmistakably clear in the language of the
statute[.]'''); Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) (``the
plain statement rule . . . acknowledg[es] that the States retain
substantial sovereign powers under our constitutional scheme, powers
with which Congress does not readily interfere''). ``Rather than
expressing a desire to readjust the federal-state balance in this
manner, Congress chose [in the CWA] to `recognize, preserve, and
protect the primary responsibilities and rights of States . . . to plan
the development and use . . . of land and water resources . . . .''
SWANCC, 531 U.S. at 174 (quoting 33 U.S.C. 1251(b)). The Court found no
clear statement from Congress that it had intended to permit federal
encroachment on traditional State power and construed the CWA to avoid
the significant constitutional questions related to the scope of
federal authority authorized therein. Id.\25\
---------------------------------------------------------------------------
\25\ The agencies note that during oral argument in SWANCC,
Justice Kennedy stated, ``[T]his case, it seems to me, does point up
the problem that petitioner's counsel raised quoting from page 1 of
the blue brief, `it is the primary responsibility of the states to
eliminate pollution and to plan development and use of land' . . .
It seems to me that this illustrates that the way in which the Corps
has promulgated its regulation departs from the design of the
statute.'' (emphasis added). Transcript of Oral Argument at 40,
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001) (No. 99-1178). And several years
later, in oral argument in Rapanos, after U.S. Solicitor General
Clement stated, ``[W]hat Congress recognized in 1972 is that they
had to regulate beyond traditional navigable waters,'' Justice
Kennedy immediately replied, ``But the Congress in 1972 also . . .
said it's a statement of policy to reserve to the States the power
and the responsibility to plan land use and water resources. And
under your definition, I just see that we're giving no scope at all
to that clear statement of the congressional policy.'' Transcript of
Oral Argument at 58, Rapanos v. United States and Carabell v. United
States, 547 U.S. 715 (2006) (Nos. 04-1034, 04-1384).
---------------------------------------------------------------------------
Several years after SWANCC, the Supreme Court considered the
concept
[[Page 56636]]
of adjacency in consolidated cases arising out of the Sixth Circuit.
See Rapanos v. United States, 547 U.S. 715 (2006). In one case, the
Corps had determined that wetlands on three separate sites were subject
to CWA jurisdiction because they were adjacent to ditches or man-made
drains that eventually connected to traditional navigable waters
several miles away through other ditches, drains, creeks, and/or
rivers. Id. at 719-20, 729. In another case, the Corps had asserted
jurisdiction over a wetland separated from a man-made drainage ditch by
a four-foot-wide man-made berm. Id. at 730. The ditch emptied into
another ditch, which then connected to a creek, and eventually
connected to Lake St. Clair, a traditional navigable water,
approximately a mile from the parcel at issue. The berm was largely or
entirely impermeable but may have permitted occasional overflow from
the wetland to the ditch. Id. The Court, in a fractured opinion,
vacated and remanded the Sixth Circuit's decision upholding the Corps'
asserted jurisdiction over the four wetlands at issue, with Justice
Scalia writing for the plurality and Justice Kennedy concurring in the
judgment but on alternate grounds. Id. at 757 (plurality), 787
(Kennedy, J., concurring).
The plurality determined that CWA jurisdiction only extended to
adjacent ``wetlands with a continuous surface connection to bodies that
are `waters of the United States' in their own right, so that there is
no clear demarcation between `waters' and wetlands.'' Id. at 742. The
plurality then concluded that ``establishing . . . wetlands . . .
covered by the Act requires two findings: First, that the adjacent
channel contains a `wate[r] of the United States,' (i.e., a relatively
permanent body of water connected to traditional interstate navigable
waters); and second, that the wetland has a continuous surface
connection with that water, making it difficult to determine where the
`water' ends and the `wetland' begins.'' Id. (alteration in original).
In reaching the adjacency component of the two-part analysis, the
plurality interpreted Riverside Bayview, and its subsequent SWANCC
decision characterizing Riverside Bayview, as authorizing jurisdiction
over wetlands that physically abutted traditional navigable waters. Id.
at 740-42. The plurality focused on the ``inherent ambiguity''
described in Riverside Bayview in determining where on the continuum
between open waters and dry land the scope of federal jurisdiction
should end. Id. at 740. It was ``the inherent difficulties of defining
precise bounds to regulable waters,'' id. at 741 n.10, according to the
plurality, that prompted the Court in Riverside Bayview to defer to the
Corps' inclusion of adjacent wetlands as ``waters'' subject to CWA
jurisdiction based on proximity. Id. at 741 (``When we characterized
the holding of Riverside Bayview in SWANCC, we referred to the close
connection between waters and the wetlands they gradually blend into:
`It was the significant nexus between the wetlands and `navigable
waters' that informed our reading of the CWA in Riverside Bayview
Homes.'''); see also Riverside Bayview, 474 U.S. 134, quoting 42 FR
37128 (July 19, 1977) (``For this reason, the landward limit of Federal
jurisdiction under Section 404 must include any adjacent wetlands that
form the border of or are in reasonable proximity to other waters of
the United States, as these wetlands are part of this aquatic
system.''). The plurality also noted that ``SWANCC rejected the notion
that the ecological considerations upon which the Corps relied in
Riverside Bayview . . . provided an independent basis for including
entities like `wetlands' (or `ephemeral streams') within the phrase
`the waters of the United States.' SWANCC found such ecological
considerations irrelevant to the question whether physically isolated
waters come within the Corps' jurisdiction.'' Id. at 741-42 (original
emphasis).
Justice Kennedy disagreed with the plurality's conclusion that
adjacency requires a ``continuous surface connection'' to covered
waters. Id. at 772. In reading the phrase ``continuous surface
connection'' to mean a continuous ``surface-water connection,'' id. at
776, and interpreting the plurality's standard to include a ``surface-
water-connection requirement,'' id. at 774, Justice Kennedy stated that
``when a surface-water connection is lacking, the plurality forecloses
jurisdiction over wetlands that abut navigable-in-fact waters--even
though such navigable waters were traditionally subject to federal
authority.'' Id. at 776. He noted that the Riverside Bayview Court
``deemed it irrelevant whether `the moisture creating the wetlands . .
. find[s] its source in the adjacent bodies of water.'' Id. at 772
(citations omitted).
The plurality did not directly address the precise distinction
raised by Justice Kennedy. It did note in response that the ``Riverside
Bayview opinion required'' a ``continuous physical connection,'' id. at
751 n.13 (emphasis added), and focused on evaluating adjacency between
a ``water'' and a wetland ``in the sense of possessing a continuous
surface connection that creates the boundary-drawing problem we
addressed in Riverside Bayview.'' Id. at 757. The plurality also
explained that its standard includes a ``physical-connection
requirement'' between wetlands and covered waters. Id. at 751 n.13. In
other words, the plurality appeared to be more focused on the abutting
nature rather than the source of water creating the wetlands at issue
in Riverside Bayview to describe the legal constructs applicable to
adjacent wetlands. See id. at 747; see also Webster's II, New Riverside
University Dictionary (1994) (defining ``abut'' to mean ``to border
on'' or ``to touch at one end or side of something''). The plurality
agreed with Justice Kennedy and the Riverside Bayview Court that ``[a]s
long as the wetland is `adjacent' to covered waters . . . its creation
vel non by inundation is irrelevant.'' Id. at 751 n.13.\26\
---------------------------------------------------------------------------
\26\ The agencies' 2008 Rapanos Guidance recognizes that the
plurality's ``continuous surface connection'' does not refer to a
continuous surface water connection. See, e.g., Rapanos Guidance at
7 n.28 (``A continuous surface connection does not require surface
water to be continuously present between the wetland and the
tributary.'').
---------------------------------------------------------------------------
Because wetlands with a physically remote hydrologic connection do
not raise the same boundary-drawing concerns presented by actually
abutting wetlands, the plurality determined that ``inherent ambiguity
in defining where water ends and abutting (`adjacent') wetlands begin''
upon which Riverside Bayview rests does not apply to such features. Id.
at 742 (``Wetlands with only an intermittent, physically remote
hydrologic connection to `waters of the United States' do not implicate
the boundary-drawing problem of Riverside Bayview, and thus lack the
necessary connection to covered waters that we described as a
`significant nexus' in SWANCC[.]''). The plurality supported this
position by referring to the Court's treatment of certain isolated
waters in SWANCC as non-jurisdictional. Id. 741-42 (``We held that
`nonnavigable, isolated, intrastate waters--which, unlike the wetlands
at issue in Riverside Bayview, did not `actually abu[t] on a navigable
waterway,'--were not included as `waters of the United States.'''). It
interpreted the reasoning of SWANCC to exclude those waters. The
plurality found ``no support for the inclusion of physically
unconnected wetlands as covered `waters''' based on Riverside Bayview's
treatment of the Corps' definition of adjacent. Id. at 747; see also
id. at 746 (``the Corps' definition of `adjacent' . . . has been
extended beyond reason.'').
[[Page 56637]]
Although ultimately concurring in judgment, Justice Kennedy focused
on the ``significant nexus'' between adjacent wetlands and traditional
navigable waters as the basis for determining whether a wetland is
subject to CWA jurisdiction. He quotes the SWANCC decision, which
explains, ``[i]t was the significant nexus between wetlands and
navigable waters . . . that informed our reading of the [Act] in
Riverside Bayview Homes.'' 531 U.S. at 167. Justice Kennedy also
interpreted the reasoning of SWANCC to exclude certain isolated waters.
His opinion notes that: ``Because such a nexus was lacking with respect
to isolated ponds, the Court held that the plain text of the statute
did not permit the Corps' action.'' 547 U.S. at 767 (internal
quotations and citations omitted). Justice Kennedy notes that the
wetlands at issue in Riverside Bayview were ``adjacent to [a]
navigable-in-fact waterway[],'' while the ``ponds and mudflats''
considered in SWANCC ``were isolated in the sense of being unconnected
to other waters covered by the Act.'' Id. at 765-66. ``Taken together,
these cases establish that in some instances, as exemplified by
Riverside Bayview, the connection between a nonnavigable water or
wetland and a navigable water may be so close, or potentially so close,
that the Corps may deem the water or wetland a `navigable water' under
the Act. In other instances, as exemplified by SWANCC, there may be
little or no connection. Absent a significant nexus, jurisdiction under
the Act is lacking.'' Id. at 767.
According to Justice Kennedy, whereas the isolated ponds and
mudflats in SWANCC lack a ``significant nexus'' to navigable waters, it
is the ``conclusive standard for jurisdiction'' based on ``a reasonable
inference of ecological interconnection'' between adjacent wetlands and
navigable-in-fact waters that allows for their categorical inclusion as
``waters of the United States.'' Id. at 780 (``[T]he assertion of
jurisdiction for those wetlands [adjacent to navigable-in-fact waters]
is sustainable under the act by showing adjacency alone.''). Justice
Kennedy surmised that it may be that the same rationale ``without any
inquiry beyond adjacency . . . could apply equally to wetlands adjacent
to certain major tributaries.'' Id. He noted that the Corps could
establish by regulation categories of tributaries based on volume of
flow, proximity to navigable waters, or other relevant factors that
``are significant enough that wetlands adjacent to them are likely, in
the majority of cases, to perform important functions for an aquatic
system incorporating navigable waters.'' Id. at 780-81. However,
``[t]he Corps' existing standard for tributaries'' provided Justice
Kennedy ``no such assurance'' to infer the categorical existence of a
requisite nexus between waters traditionally understood as navigable
and wetlands adjacent to nonnavigable tributaries. Id. at 781. That is
because:
the breadth of [the tributary] standard--which seems to leave wide
room for regulation of drains, ditches, and streams remote from any
navigable-in-fact water and carrying only minor water volumes
towards it--precludes its adoption as the determinative measure of
whether adjacent wetlands are likely to play an important role in
the integrity of an aquatic system comprising navigable waters as
traditionally understood. Indeed, in many cases wetlands adjacent to
tributaries covered by this standard might appear little more
related to navigable-in-fact waters than were the isolated ponds
held to fall beyond the Act's scope in SWANCC.
Id. at 781-82.
To avoid this outcome, Justice Kennedy stated that, absent
development of a more specific regulation and categorical inclusion of
wetlands adjacent to ``certain major'' or even ``minor'' tributaries as
was established in Riverside Bayview, id. at 780-81, the Corps ``must
establish a significant nexus on a case-by-case basis when it seeks to
regulate wetlands based on adjacency to nonnavigable tributaries. Given
the potential overbreadth of the Corps' regulations, this showing is
necessary to avoid unreasonable applications of the statute.'' Id. at
782. Justice Kennedy stated that adjacent ``wetlands possess the
requisite nexus, and thus come within the statutory phrase `navigable
waters,' if the wetlands, either alone or in combination with similarly
situated lands in the region, significantly affect the chemical,
physical, and biological integrity of other covered waters more readily
understood as `navigable.''' Id. at 780. ``Where an adequate nexus is
established for a particular wetland, it may be permissible, as a
matter of administrative convenience or necessity, to presume covered
status for other comparable wetlands in the region.'' Id. at 782.
In establishing this significant nexus test, Justice Kennedy
relied, in part, on the overall objective of the CWA to ``restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' Id. at 779 (quoting 33 U.S.C. 1251(a)). However,
Justice Kennedy also acknowledged that ``environmental concerns provide
no reason to disregard limits in the statutory text.'' Id. at 778. With
respect to wetlands adjacent to nonnavigable tributaries, Justice
Kennedy therefore determined that ``mere adjacency . . . is
insufficient. A more specific inquiry, based on the significant-nexus
standard, is . . . necessary.'' Id. at 786. By not requiring adjacent
wetlands to possess a significant nexus with navigable waters, Justice
Kennedy noted that under the Corps' interpretation, federal regulation
would be permitted ``whenever wetlands lie alongside a ditch or drain,
however remote or insubstantial, that eventually may flow into
traditional navigable waters. The deference owed the Corps'
interpretation of the statute does not extend so far.'' Id. at 778-79.
In summary, although the standards that the plurality and Justice
Kennedy established are not identical, and each standard excludes some
waters that the other standard does not, the standards contain
substantial similarities. The plurality and Justice Kennedy agree in
principle that the determination must be made using a basic two-step
approach that considers: (1) The connection of the wetland to the
tributary; and (2) the status of the tributary with respect to
downstream traditional navigable waters. The plurality and Justice
Kennedy also agree that the connection between the wetland and the
tributary must be close. The plurality refers to that connection as a
``continuous surface connection'' or ``continuous physical
connection,'' as demonstrated in Riverside Bayview. Id. at 742, 751
n.13. Justice Kennedy recognizes that ``the connection between a
nonnavigable water or wetland and a navigable water may be so close, or
potentially so close, that the Corps may deem the water or wetland a
`navigable water' under the Act.'' Id. at 767. The second part of their
common analytical framework is addressed in the next section.
b. Tributaries
The definition of ``tributary'' was not addressed in either
Riverside Bayview or SWANCC. And while the focus of Rapanos was on
whether the Corps could regulate wetlands adjacent to nonnavigable
tributaries far removed from navigable-in-fact waters, the plurality
and concurring opinions do provide guidance as to the scope of CWA
coverage of tributaries to navigable-in-fact waters.
The plurality and Justice Kennedy both recognize that the
jurisdictional scope of the CWA is not restricted to traditional
navigable waters. Rapanos, 547 U.S. at 731 (Scalia, J., plurality)
(``the Act's term `navigable waters' includes something more than
[[Page 56638]]
traditional navigable waters''); id. at 767 (Kennedy, J., concurring)
(``Congress intended to regulate at least some waters that are not
navigable in the traditional sense.''). Both also agree that federal
authority under the Act does have limits. See id. at 731-32
(plurality).
With respect to tributaries specifically, both the plurality and
Justice Kennedy focus in part on a tributary's contribution of flow to
and connection with traditional navigable waters. The plurality would
include as ``waters of the United States'' ``only relatively permanent,
standing or flowing bodies of water'' and would define such ``waters''
as including streams, rivers, oceans, lakes and other bodies of waters
that form geographical features, noting that all such ``terms connote
continuously present, fixed bodies of water . . . .'' Id. at 732-33,
739. The plurality would also require relatively permanent waters to be
connected to traditional navigable waters in order to be
jurisdictional. See id. at 742 (describing a ```wate[r] of the United
States''' as ``i.e., a relatively permanent body of water connected to
traditional interstate navigable waters'') (emphasis added). The
plurality would exclude ephemeral flows and related features, stating
``[n]one of these terms encompasses transitory puddles or ephemeral
flows of water.'' Id. at 733; see also id. at 734 (``In applying the
definition to `ephemeral streams,' . . . the Corps has stretched the
term `waters of the United States' beyond parody. The plain language of
the statute simply does not authorize this `Land Is Waters' approach to
federal jurisdiction.''). Justice Kennedy would appear to exclude some
streams considered jurisdictional under the plurality's test, but he
may include some that would be excluded by the plurality. See id. at
769 (noting that under the plurality's test, ``[t]he merest trickle, if
continuous, would count as a `water' subject to federal regulation,
while torrents thundering at irregular intervals through otherwise dry
channels would not'').
Both the plurality and Justice Kennedy would include some seasonal
or intermittent streams as ``waters of the United States.'' Id. at 733
& n.5, 769. The plurality noted, for example, that its reference to
``relatively permanent'' waters did ``not necessarily exclude streams,
rivers, or lakes that might dry up in extraordinary circumstances, such
as drought,'' or ``seasonal rivers, which contain continuous flow
during some months of the year but no flow during dry months . . . .''
Id. at 732 n.5 (emphasis in original). Neither the plurality nor
Justice Kennedy, however, defined with precision where to draw the
line. The plurality provides that ``navigable waters'' must have ``at a
bare minimum, the ordinary presence of water,'' id. at 734, and Justice
Kennedy notes that the Corps can identify by regulation categories of
tributaries based on ``their volume of flow (either annually or on
average), their proximity to navigable waters, or other relevant
considerations'' that ``are significant enough that wetlands adjacent
to them are likely, in the majority of cases, to perform important
functions for an aquatic system incorporating navigable waters.'' Id.
at 780-81.
Both the plurality and Justice Kennedy also agreed that the Corps'
existing treatment of tributaries raised significant jurisdictional
concerns. For example, the plurality was concerned about the Corps'
broad interpretation of tributaries themselves. See id. at 738
(plurality) (``Even if the term `the waters of the United States' were
ambiguous as applied to channels that sometimes host ephemeral flows of
water (which it is not), we would expect a clearer statement from
Congress to authorize an agency theory of jurisdiction that presses the
envelope of constitutional validity.''). And Justice Kennedy objected
to the categorical assertion of jurisdiction over wetlands adjacent to
the Corps' existing standard for tributaries ``which seems to leave
wide room for regulation of drains, ditches, and streams remote from
any navigable-in-fact water and carrying only minor water volumes
towards it . . . .'' Id. at 781 (Kennedy, J. concurring), see also id.
at 781-82 (``[I]n many cases wetlands adjacent to tributaries covered
by this standard might appear little more related to navigable-in-fact
waters than were the isolated ponds held to fall beyond the Act's scope
in SWANCC.'').
Though some commenters agreed that aspects of the plurality's and
Justice Kennedy's opinions align regarding the limits of federal
jurisdiction under the CWA, other commenters disagreed that the
opinions share important commonalities. These commenters asserted that
the opinions have disparate rationales that cannot be reconciled. While
the agencies acknowledge that the plurality and Justice Kennedy viewed
the question of federal CWA jurisdiction differently, the agencies find
that there are sufficient commonalities between these opinions to help
instruct the agencies on where to draw the line between Federal and
State waters.
3. Principles and Considerations
As discussed in the previous section, a few important principles
emerge that can serve as the basis for the agencies' conclusion that
the agencies exceeded their authority when defining the scope of CWA
jurisdiction under the 2015 Rule. As a threshold matter, the power
conferred on the agencies under the CWA to regulate the ``waters of the
United States'' is grounded in Congress' commerce power over
navigation. The agencies can choose to regulate beyond waters more
traditionally understood as navigable, including some tributaries to
those traditional navigable waters, but must provide a reasonable basis
grounded in the language and structure of the Act for determining the
extent of jurisdiction. The agencies can also choose to regulate
wetlands adjacent to the traditional navigable waters and some
tributaries, if the wetlands are closely connected to the tributaries,
such as in the transitional zone between open waters and dry land. The
Supreme Court's opinion in SWANCC, however, calls into question the
agencies' authority to regulate certain nonnavigable, isolated,
intrastate waters that lack a sufficient connection to traditional
navigable waters. This counsels that the agencies should avoid
regulatory interpretations of the CWA that raise constitutional
questions regarding the scope of their statutory authority. Finally,
the agencies can regulate certain waters by category, which could
improve regulatory predictability and certainty and ease administrative
burden while still effectuating the purposes of the Act.
The agencies also recognize and respect the primary
responsibilities and rights of States to regulate their land and water
resources. See 33 U.S.C. 1251(b), 1370. The oft-quoted objective of the
CWA to ``restore and maintain the chemical, physical, and biological
integrity of the Nation's waters,'' id. at 1251(a), must be implemented
in a manner consistent with Congress' policy directives to the
agencies. The Supreme Court long ago recognized the distinction between
federal waters traditionally understood as navigable and waters
``subject to the control of the States.'' The Daniel Ball, 77 U.S. (10
Wall.) 557, 564-65 (1870). Over a century later, the Supreme Court in
SWANCC reaffirmed the State's ``traditional and primary power over land
and water use.'' 531 U.S. at 174; accord Rapanos, 547 U.S. at 738
(Scalia, J., plurality opinion).
Ensuring that States retain authority over their land and water
resources pursuant to section 101(b) and section 510 helps carry out
the overall objective of the CWA and ensures that the agencies are
giving full effect and consideration to the entire structure and
function of the Act. See, e.g., id. at 755-
[[Page 56639]]
56 (Scalia, J., plurality opinion) (``[C]lean water is not the only
purpose of the statute. So is the preservation of primary state
responsibility for ordinary land-use decisions. 33 U.S.C. 1251(b).'')
(original emphasis). That includes the dozens of non-regulatory grant,
research, nonpoint source, groundwater, and watershed planning programs
that were intended by Congress to assist the States in controlling
pollution in all of the nation's waters, not just its navigable waters.
Controlling all waters using the Act's federal regulatory mechanisms
would significantly reduce the need for the more holistic planning
provisions of the Act and the State partnerships they entail.
Therefore, by recognizing the distinctions between the nation's waters
and the navigable waters and between the overall objective and goals of
the CWA and the specific policy directives from Congress, the agencies
can fully implement the entire structure of the Act while respecting
the specific word choices of Congress. See, e.g., Bailey v. United
States, 516 U.S. at 146; Nat'l Fed'n of Indep. Bus. v. Sebelius, 567
U.S. at 544.
Further, the agencies are cognizant that the ``Clean Water Act
imposes substantial criminal and civil penalties for discharging any
pollutant into waters covered by the Act without a permit . . . .''
U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1812
(2016). As Justice Kennedy observed in 2016, ``the reach and systemic
consequences of the Clean Water Act remain a cause for concern'' and
``continues to raise troubling questions regarding the Government's
power to cast doubt on the full use and enjoyment of private property
throughout the Nation . . . .''). Id. at 1816-17 (Kennedy, J.,
concurring). The agencies recognize that the 2015 Rule and subsequent
litigation challenging the legality of core components of that rule
have added to the questions regarding the appropriate scope of the
Federal government's regulatory power and power over private property,
and that currently the scope of those powers varies based on State
line.
C. Reasons for Repeal
The agencies are repealing the 2015 Rule for four primary reasons.
First, the agencies have concluded that the 2015 Rule misapplied
Justice Kennedy's significant nexus standard despite identifying that
standard as its touchstone. The 2015 Rule adopted an interpretation of
the significant nexus standard that impermissibly expanded the scope of
federal jurisdiction, resulting in the regulation of waters beyond what
Congress intended. The rule did so by misapplying Justice Kennedy's
standard to broaden the meaning and application of the terms
``tributary,'' ``adjacent,'' and ``significant nexus'' while
reinterpreting the phrase ``similarly situated lands in the region'' to
support the potential assertion of federal regulation over nearly all
waters within large watersheds. The agencies are repealing the 2015
Rule because the agencies have now concluded that the 2015 Rule
exceeded the legal limits on the scope of the agencies' jurisdiction
under the CWA as intended by Congress and as reflected in Supreme Court
cases, including Justice Kennedy's articulation of the significant
nexus standard in Rapanos.\27\
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\27\ The agencies are not taking a position in this rulemaking
regarding whether Justice Kennedy's concurring opinion in Rapanos is
or should be the controlling authority regarding the scope of
federal jurisdiction under the CWA. See, e.g., Rapanos, 547 U.S. at
758 (Roberts, C.J., concurring). The agencies used Justice Kennedy's
significant nexus standard as the touchstone for the 2015 Rule, and
for the reasons described herein, the agencies are repealing the
2015 Rule because it exceeded the scope of authority described in
that standard. The agencies requested comment regarding whether
Justice Kennedy's concurring opinion ``must be a mandatory component
of any future definition of `waters of the United States' '' as part
of the rulemaking on a proposed revised definition. See 84 FR 4154,
4167, 4177 (Feb. 14, 2019).
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Second, the agencies have concluded that the 2015 Rule did not
adequately consider and accord due weight to the express congressional
policy in CWA section 101(b) to ``recognize, preserve, and protect the
primary responsibilities and rights of States to prevent, reduce and
eliminate pollution'' and ``to plan the development and use . . . of
land and water resources.'' 33 U.S.C. 1251(b). The CWA balances
preservation of the traditional power of States to regulate land and
water resources within their borders with federal water quality
regulation and oversight to protect the ``waters of the United
States.'' The agencies now conclude that in promulgating the 2015 Rule,
they did not accord due weight to that balance. The 2015 Rule expanded
jurisdiction over the pre-existing regulatory regime in a manner that
encroached on traditional State land-use regulation and the authority
of States to regulate State waters, and it altered Federal, State,
tribal, and local government relationships in implementing CWA programs
without a clear statement from Congress. By repealing the 2015 Rule,
the agencies are reversing that encroachment on State authority and
restoring those pre-existing relationships.
Third, given the errors in applying Justice Kennedy's significant
nexus standard to assert an expanded theory of federal jurisdiction and
the failure to adequately consider and accord due weight to the policy
direction from Congress to respect the roles and responsibilities of
the Federal government and States in implementing the full suite of
regulatory and non-regulatory programs in the CWA, the agencies have
concluded that the 2015 Rule, like the application of the Corps'
regulations in SWANCC, ``raise[s] significant questions of Commerce
Clause authority and encroach[es] on traditional state land-use
regulation.'' Rapanos, 547 U.S. at 776 (Kennedy, J., concurring); see
also Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at *23 (S.D.
Ga. Aug. 21, 2019) (finding the 2015 Rule ``unlawful'' given its
``significant intrusion on traditional state authority'' without ``any
clear or manifest statement to authorize intrusion into that
traditional state power''). Given the absence of a ``clear indication''
that Congress intended to invoke the outer limits of its power, see 531
U.S. at 172-73, the agencies are repealing the 2015 Rule to avoid
interpretations of the CWA that push the envelope of their
constitutional and statutory authority, consistent with principles of
constitutional avoidance.
Lastly, the agencies also recognize that the 2015 Rule has been
remanded by the U.S. District Court for the Southern District of Texas
for failing to comply with the APA. That court found that the distance-
based limitations in the final rule were not a logical outgrowth of the
proposal in violation of the APA's public notice and comment
requirements. See Texas v. EPA, No. 3:15-cv-162, 2019 WL 2272464 (S.D.
Tex. May 28, 2019). The court found this error ``significant'' because
the specific distance-based limitations ``alter[ed] the jurisdictional
scope of the Act.'' Id. at *5. The agencies are also aware that
litigants challenging the 2015 Rule alleged other APA deficiencies,
including the lack of record support for the distance-based limitations
inserted into the final rule without adequate notice. Several
commenters on the proposed repeal of the 2015 Rule raised similar
concerns, arguing that the 2015 Rule was arbitrary and capricious
because of the lack of record support for those limitations. The
agencies recognize that the Federal government, in prior briefing, has
defended the procedural steps the agencies took to develop and support
the 2015 Rule. Having considered the public comments and relevant
litigation positions, and the decision of the Southern District of
Texas on related arguments, the agencies now conclude that the
[[Page 56640]]
administrative record for the 2015 Rule did not contain sufficient
record support for the distance-based limitations that appeared for the
first time in the final rule. This conclusion is further supported by
similar findings of the U.S. District Court for the Southern District
of Georgia, which remanded the 2015 Rule to the agencies in August 2019
after identifying substantive and procedural errors with respect to
numerous provisions, including the rule's distance limitations. Georgia
v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019).
By repealing the 2015 Rule for the reasons stated herein, the agencies
are remedying the procedural defects underlying the 2015 Rule and
responding to these court orders remanding the 2015 Rule.
In reaching this decision, the agencies considered the public
comments received in response to the NPRM and SNPRM. The agencies also
carefully reviewed their statutory and constitutional authority, as
well as court rulings interpreting the CWA and others arising from
litigation challenging the 2015 Rule. Some courts issuing preliminary
injunctions to stay implementation of the 2015 Rule have suggested that
the agencies' interpretation of the ``significant nexus'' standard, as
applied in the 2015 Rule, may not have implemented the limits of
federal CWA jurisdiction reflected in decisions of the Supreme Court.
See, e.g., North Dakota v. EPA, 127 F. Supp. 3d 1047, 1055-56 (D.N.D.
2015). The agencies now agree with the rationale of those decisions as
they appropriately recognize the limits of the agencies' authority
under the CWA. Moreover, the agencies find that the court rulings
issued thus far against the 2015 Rule corroborate the agencies'
concerns regarding the scope and legal basis of the rule.
1. The 2015 Rule Misapplied and Inappropriately Expanded the
Significant Nexus Standard
When promulgating the 2015 Rule, the agencies did not properly
apply Justice Kennedy's significant nexus standard as a limiting test
in a manner that would avoid unreasonable applications of the CWA.
Having reconsidered the relevant Supreme Court opinions, the agencies
now conclude that the significant nexus standard is indeed a limiting
test necessarily constraining overly broad applications of the statute.
In Rapanos, Justice Kennedy concluded that the CWA covers only ``waters
that are or were navigable in fact or that could reasonably be so
made'' as well as waters with a ``significant nexus'' to navigable
waters in the traditional sense. 547 U.S. at 779 (Kennedy, J.,
concurring). Specifically, Justice Kennedy found that ``wetlands
possess the requisite nexus'' if they ``either alone or in combination
with similarly situated lands in the region, significantly affect the
chemical, physical, and biological integrity of'' navigable-in-fact
waters. Id. at 780. In contrast, according to Justice Kennedy, the CWA
does not regulate wetlands with ``speculative or insubstantial''
effects on the integrity of navigable waters. Id.
In promulgating the 2015 Rule, the agencies sought to interpret
``the scope of the `waters of the United States' for the CWA using the
goals, objectives, and policies of the statute, the Supreme Court case
law, the relevant and available science, and the agencies' technical
expertise and experience as support.'' 80 FR 37056. In particular, the
agencies focused on the significant nexus standard in defining the
scope of CWA jurisdiction. Id. at 37060 (``The key to the agencies'
interpretation of the CWA is the significant nexus standard, as
established and refined in Supreme Court opinions.'').
After careful review of the 2015 Rule and the public comments
received in response to the notices proposing to repeal the 2015 Rule,
the agencies now conclude that the rule misconstrued the significant
nexus standard described by Justice Kennedy in Rapanos. Key provisions
of the rule were at odds with Justice Kennedy's understanding of the
phrase ``significant nexus'' because they permitted ``applications . .
. that appeared likely . . . to raise constitutional difficulties and
federalism concerns,'' 547 U.S. at 776 (Kennedy, J., concurring),\28\
including the categorical assertion of jurisdiction over certain
wetlands and waters that ``lie alongside a ditch or drain, however
remote and insubstantial.'' See id. at 778-79. The agencies'
misapplication of the significant nexus standard also ran counter to
principles articulated by the Supreme Court in SWANCC, as the 2015 Rule
permitted federal jurisdiction over certain nonnavigable, isolated,
intrastate waters similar to the ponds and mudflats that ``raise[d]
significant constitutional questions'' in that case. 531 U.S. at 173-
74; see also Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at
*23 (S.D. Ga. Aug. 21, 2019). The agencies' misapplication of the
significant nexus standard in the 2015 Rule also resulted in a
definition of ``waters of the United States'' that did not give
sufficient effect to the word ``navigable'' within the phrase
``navigable waters'' in a manner consistent with Supreme Court
precedent. Ultimately, the fundamental and systemic broad
interpretation and misapplication of the significant nexus standard in
the 2015 Rule resulted in a ``close-to-the-edge expansion of [the
agencies'] own powers'' with a ``theory of jurisdiction that presse[d]
the envelope of constitutional validity.'' 547 U.S. at 738, 756
(Scalia, J., plurality). For these reasons, described in detail below,
the agencies misconstrued the limits of the CWA and are repealing the
2015 Rule.
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\28\ Although not central to the agencies' decision to repeal
the 2015 Rule, the agencies also conclude that the 2015 Rule's
regulatory definition of ``significant nexus'' was incompatible with
the Rapanos plurality's interpretation of ``significant nexus.'' See
547 U.S. at 755 (Scalia, J., plurality) (``Our interpretation of the
phrase [`significant nexus'] is both consistent with [Riverside
Bayview and SWANCC] and compatible with what the Act does establish
as the jurisdictional criterion: `waters of the United States.'
Wetlands are `waters of the United States' if they bear the
`significant nexus' of physical connection, which makes them as a
practical matter indistinguishable from waters of the United States.
What other nexus could conceivably cause them to be `waters of the
United States'?'' (original emphasis)).
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a. The 2015 Rule Failed to Properly Consider and Adopt the Limits of
the ``Significant Nexus'' Standard as First Established in SWANCC
The phrase ``significant nexus'' first appeared in SWANCC wherein
Chief Justice Rehnquist, joined by Justice Kennedy and other Justices,
described the holding of the Court in Riverside Bayview: ``It was the
significant nexus between the wetlands and `navigable waters' that
informed our reading of the CWA in Riverside Bayview Homes.'' 531 U.S.
at 167. While the Riverside Bayview Court did not ``express any
opinion'' on the ``question of the authority of the Corps to regulate
discharges of fill material into wetlands that are not adjacent to
bodies of open water,'' 474 U.S. at 131-32 n.8, the SWANCC Court
``conclude[d] that the text of the statute will not allow''
jurisdiction of the Corps to ``extend[ ] to ponds that are not adjacent
to open water.'' 531 U.S. at 168.
In describing the significant nexus standard in Rapanos, Justice
Kennedy recognized that ``in some instances, as exemplified by
Riverside Bayview, the connection between a nonnavigable water or
wetland and a navigable water may be so close, or potentially so close,
that the Corps may deem the water or wetland a `navigable water' under
the Act. In other instances, as exemplified by SWANCC, there may be
little or no connection.'' 547 U.S. at 767 (Kennedy, J., concurring).
Justice Kennedy
[[Page 56641]]
explained his interpretation of the meaning and import of SWANCC:
``Because such a [significant] nexus was lacking with respect to
isolated ponds, the Court held that the plain text of the statute did
not permit'' the Corps to assert jurisdiction over the isolated ponds
and mudflats at issue in SWANCC. Id.; see also id. at 774 (describing
``SWANCC's holding'' to mean that ```nonnavigable, isolated, intrastate
waters,' are not `navigable waters.' '' (quoting SWANCC, 531 U.S. at
171)); id. at 781-82 (``[I]n many cases wetlands adjacent to
tributaries covered by [the Corps' existing tributary] standard might
appear little more related to navigable-in-fact waters than were the
isolated ponds held to fall beyond the Act's scope in SWANCC.''). The
Rapanos plurality recognized the same jurisdictional limits articulated
in SWANCC. See 547 U.S. at 726 (``Observing that `[i]t was the
significant nexus between the wetlands and `navigable waters' that
informed our reading of the CWA in Riverside Bayview,' we held that
Riverside Bayview did not establish `that the jurisdiction of the Corps
extends to ponds that are not adjacent to open water.' '' (citations
and emphasis omitted)). And Justice Stevens, writing for four Justices
in dissent in Rapanos, also recognized this principle. See id. at 795
(Stevens, J., dissenting) (``The Court [in SWANCC] rejected [the Corps'
exercise of jurisdiction] since these isolated pools, unlike the
wetlands at issue in Riverside Bayview, had no `significant nexus' to
traditionally navigable waters.''); id. at 796 (Stevens, J.,
dissenting) (``[T]he Corps has reasonably interpreted its jurisdiction
to cover nonisolated wetlands.'' (emphasis added)).
In the SNPRM, the agencies specifically requested comment and
additional information on ``whether the water features at issue in
SWANCC or other similar water features could be deemed jurisdictional
under the 2015 Rule,'' and whether such a determination would be
``consistent with or otherwise well-within the agencies' statutory
authority.'' 83 FR 32249. The agencies now conclude that in formulating
the significant nexus test in the 2015 Rule, the agencies failed to
properly consider or adopt the limits of the significant nexus standard
established in SWANCC--the very case in which the phrase ``significant
nexus'' originated--and Justice Kennedy's opinion in Rapanos. The
preamble to the 2015 Rule stated that ``[t]he agencies utilize[d] the
significant nexus standard, as articulated by Justice Kennedy's opinion
[in Rapanos] and informed by the unanimous opinion in Riverside Bayview
and the plurality opinion in Rapanos.'' 80 FR 37061. But the rule did
not properly consider the limits of the significant nexus standard as
first described in SWANCC and subsequently relied upon by Justice
Kennedy in Rapanos, nor was it adequately informed by the unanimous
opinion in Riverside Bayview.
For example, applying the 2015 Rule to the waters at issue in
SWANCC demonstrates that the 2015 Rule did not comport with the limits
of the CWA as interpreted in that decision. The ``seasonally ponded,
abandoned gravel mining depressions'' at issue in SWANCC were within
4,000 feet of Poplar Creek--a ``tributary'' under the 2015 Rule which
leads to the Fox River and in turn flows into the Illinois and
Mississippi Rivers. Based on this information, the SWANCC ponds and
mudflats would have been subject to a case-specific significant nexus
analysis under the 2015 Rule's (a)(8) provision. See 80 FR 37105.\29\
Considering the nine functions relevant to a significant nexus
evaluation as defined in the 2015 Rule, including ``runoff storage''
and ``sediment trapping,'' id. at 37067, as well as the descriptions of
the site available to the agencies, the SWANCC ponds and mudflats would
almost certainly have a ``significant nexus'' under the 2015 Rule
because they could be found to retain ``stormwater volumes and
associated sediment coming off the landfill'' that would otherwise
reach a navigable water. See Brief of Dr. Gene Likens et al. as Amici
Curiae in Support of Respondent at 6-28, SWANCC, 531 U.S. 159 (No. 99-
1178) [hereinafter Scientists' Brief] (quoting Decision Document A.R.
15645-47); see also id. (``[The SWANCC site] holds enough water to fill
the Pentagon four feet deep. . . . Absent strict controls, this water
could easily end up directly or indirectly in the Fox River, . . .
which in turn flows into the navigable Illinois and Mississippi
Rivers.''); Rapanos, 547 U.S. at 749 (Scalia, J., plurality) (``[T]he
ponds at issue in SWANCC could . . . offer nesting, spawning, rearing
and resting sites for aquatic or land species, and serve as valuable
storage areas for storm and flood waters[.]'' (internal quotation marks
and citations omitted)). In fact, given this evidence, were the Corps
not to find jurisdiction over the SWANCC ponds under the 2015 Rule's
(a)(8) provision, the agencies are cognizant that the Corps could be
subject to allegations that such a finding would be an arbitrary and
capricious application of that provision. And yet, with this
information before it,\30\ the majority of the SWANCC Court concluded
that the nonnavigable, isolated, intrastate waters at issue in SWANCC
fell beyond the scope of federal CWA jurisdiction. See SWANCC, 531 U.S.
at 174 (``[W]e find nothing approaching a clear statement from Congress
that it intended Sec. 404(a) to reach an abandoned sand and gravel pit
such as we have here.'').
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\29\ The ``seasonally ponded, abandoned gravel mining
depressions located on the [SWANCC] project site,'' 531 U.S. at 164,
would not have been covered by the 2015 Rule's exclusion for water-
filled depressions created incidental to mining activity. See e.g.,
33 CFR 328.3(b)(4)(v). While the text of the 2015 Rule is not clear
on this point, the earlier regulatory preambles that this exclusion
is based on and the 2015 Rule Response to Comments (RTC) document
confirm that this exclusion ceases to apply if the mining activities
that created the waters are abandoned. See 53 FR 20764, 20765 (June
6, 1988) (``we generally do not consider the following waters to be
`waters of the United States' . . . [w]ater-filled 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'') (emphasis added); see also 2015 Rule
RTC, Topic 7 at 209 (``The exclusion applies to pits excavated in
dry land for obtaining fill, sand, or gravel. The rule does not
change the agencies' existing practice that these features could be
found to be jurisdictional once the construction or mining activity
is completed or abandoned and the water feature remains.'').
\30\ This information, along with other ecological functions of
isolated waters, was submitted to the SWANCC Court in amicus briefs
filed in support of the Corps by ecologists and several States. See
Scientists' Brief; Brief of the States of California et al. as Amici
Curiae in Support of Respondents, SWANCC, 531 U.S. 159 (No. 99-
1178). Additionally, in oral argument during SWANCC, U.S. Deputy
Solicitor General Wallace stated, ``The waters here . . . serve as
storage for what would otherwise be flood waters during periods of
heavy rain that would cause overflow. That was part of what the
Corps had to deal with in dealing with this [permit] application.''
Transcript of Oral Argument at 39, Solid Waste Agency of Northern
Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)
(No. 99-1187).
---------------------------------------------------------------------------
The agencies have solicited comment on the proper scope and
interpretation of the SWANCC decision as part of their effort to
propose a revised definition of ``waters of the United States''
pursuant to Executive Order 13778. See 84 FR 4165. In that proposal,
the agencies noted that the Federal government historically has applied
a more narrow reading of SWANCC when determining jurisdiction over
individual water features,\31\ while simultaneously
[[Page 56642]]
applying a broader reading of Justice Kennedy's concurring opinion in
Rapanos. Id. at 4167, 4177. While the agencies consider comments as to
the appropriateness of that dichotomy as part of their separate
rulemaking, the agencies continue to agree with their express statement
in the 2008 Rapanos Guidance regarding the jurisdictional limitations
articulated in SWANCC as interpreted by Justice Kennedy:
---------------------------------------------------------------------------
\31\ But see Transcript of Oral Argument at 41, Rapanos v.
United States and Carabell v. United States, 547 U.S. 715 (2006)
(Nos. 04-1034, 04-1384) where U.S. Solicitor General Clement stated
that after SWANCC ``the Corps and the EPA's view of wetlands would
cover about 80 percent of the wetlands in the country. And that
shows that the impact of this Court's decision in SWANCC was real
and substantial because about 20 percent of the Nation's wetlands
are isolated.'' (emphasis added).
When applying the significant nexus standard to tributaries and
wetlands, it is important to apply it within the limits of
jurisdiction articulated in SWANCC. Justice Kennedy cites SWANCC
with approval and asserts that the significant nexus standard,
rather than being articulated for the first time in Rapanos, was
established in SWANCC. 126 S. Ct. at 2246 (describing SWANCC as
``interpreting the Act to require a significant nexus with navigable
waters''). It is clear, therefore, that Justice Kennedy did not
intend for the significant nexus standard to be applied in a manner
that would result in assertion of jurisdiction over waters that he
and the other justices determined were not jurisdictional in SWANCC.
Nothing in this guidance should be interpreted as providing
authority to assert jurisdiction over waters deemed non-
---------------------------------------------------------------------------
jurisdictional by SWANCC.
2008 Rapanos Guidance at 9 n.32.\32\ The agencies continue to utilize
the 2008 Rapanos Guidance in those States where the pre-2015
regulations are in place, and upon reconsideration reiterate and agree
``that Justice Kennedy did not intend for the significant nexus
standard to be applied in a manner that would result in assertion of
jurisdiction over waters that he and the other justices determined were
not jurisdictional in SWANCC.'' Id.
---------------------------------------------------------------------------
\32\ The agencies also recognize that Justice Stevens
interpreted the SWANCC majority opinion to apply beyond the
Migratory Bird Rule and the specific ponds at issue in SWANCC,
stating the decision ``invalidates the 1986 migratory bird
regulation as well as the Corps' assertion of jurisdiction over all
waters except for actually navigable waters, their tributaries, and
wetlands adjacent to each.'' 531 U.S. at 176-77 (Stevens, J.,
dissenting) (emphasis added).
---------------------------------------------------------------------------
In the 2015 Rule, and in particular the (a)(8) provision, the
agencies reinterpreted their understanding of the limits of
jurisdiction set by Justice Kennedy's significant nexus test as
described in the 2008 Rapanos Guidance. Thus, under the 2015 Rule's
(a)(8) category for waters subject to case-specific significant nexus
analyses, the 2015 Rule could have swept ``ponds that are not adjacent
to open water,'' 531 U.S. at 168, along with other non-adjacent waters
and wetlands into the scope of federal jurisdiction under the CWA. It
did so by applying the nine functions described at 80 FR 37067, only
one of which--provided its effect on the nearest primary water, either
alone or in combination with other similarly situated waters in the
watershed, was more than speculative or insubstantial--was necessary to
subject a non-adjacent water or wetland to federal jurisdiction under
the 2015 Rule. See id. at 37091. Under this formulation of the
significant nexus standard, the very ponds at issue in SWANCC would be
subject to federal review under the (a)(8) category of the 2015 Rule,
and, as described above, would almost certainly be found to have a
significant nexus under the 2015 Rule.
Some commenters identified a narrow interpretation of SWANCC that
they suggested would not conflict with the 2015 Rule's (a)(8) category
of jurisdictional waters: While the SWANCC ponds may not be
jurisdictional based on the use of those waters as habitat for
migratory birds, they could be jurisdictional nonetheless if they
satisfy one of the functions listed at 80 FR 37067 (e.g., sediment
trapping, runoff storage). Similarly, noting that Justice Kennedy had
characterized the SWANCC ponds as ``bearing no evident connection to
navigable-in-fact waters,'' some commenters suggested that it would be
appropriate to assert federal jurisdiction over the SWANCC ponds if the
agencies established that such features satisfy the significant nexus
test and thus have an ``evident connection'' to downstream navigable
waters. Other commenters asserted that finding the SWANCC ponds
jurisdictional under the 2015 Rule would be inconsistent with Justice
Kennedy's understanding of the scope of federal jurisdiction under the
Act.
As noted above, the agencies believe that Justice Kennedy did not
intend for the significant nexus standard to be applied in a manner
that would result in the assertion of jurisdiction over waters that he
and the other justices determined were not jurisdictional in SWANCC.
The text of SWANCC supports this interpretation. The SWANCC majority
specifically concluded that the ``text of the statute will not allow''
the assertion of CWA jurisdiction over the ponds at issue in that case.
531 U.S. at 168. Thus, the agencies could not develop a formulation of
a case-specific significant nexus test that the Supreme Court
specifically rejected.\33\
---------------------------------------------------------------------------
\33\ These same defects apply to the 2015 Rule's (a)(7)
category. The preamble to the 2015 Rule stated, ``a water [or
wetland] that does not meet the definition of `adjacent waters' may
be determined to be a `water of the United States' on a case-
specific basis under paragraph (a)(8) of the rule,'' 80 FR 37080,
and the 2015 Rule subjected (a)(7) waters to the same case-specific
significant nexus analysis that it applied to (a)(8) waters, only
without the distance-based limitations used in the (a)(8) category.
See id. (``[W]aters may be determined to have a significant nexus on
a case-specific basis under paragraph (a)(7) or (a)(8).'') (emphasis
added).
---------------------------------------------------------------------------
For these reasons, the agencies now find that the 2015 Rule
departed from and conflicted with the agencies' prior interpretation of
SWANCC without adequate notice and a reasoned explanation for the
change in interpretation. See FCC v. Fox Television Stations, Inc., 556
U.S. 502, 515-16 (2009) (``Fox''). In promulgating the 2015 Rule, the
agencies acknowledged potential differences between their legal
interpretations underlying the rule and the 2008 Rapanos Guidance. See,
e.g., Technical Support Document for the Clean Water Rule: Definition
of Waters of the United States at 79-83. The agencies failed to
identify or acknowledge, however, that the 2015 Rule could regulate
that which the Supreme Court rejected in SWANCC, a clear departure from
their opposite position in the 2008 Rapanos Guidance. In this regard,
the agencies recognize that their reinterpretation of Rapanos, SWANCC,
and Justice Kennedy's significant nexus test was inconsistent with
those cases.
After reconsidering this issue, the agencies conclude that they
lack statutory authority to promulgate a rule that would result in
assertion of jurisdiction over waters that the Supreme Court determined
were not jurisdictional in SWANCC, and that Justice Kennedy did not
intend for the significant nexus standard he articulated in Rapanos to
be applied in such a manner. In finalizing the 2015 Rule, the agencies
therefore improperly departed from their prior position regarding this
key element of the 2008 Rapanos Guidance.
In returning to an interpretation of Justice Kennedy's decision
that comports with the 2008 Rapanos Guidance, the agencies recognize
the SWANCC Court's admonition to avoid constructions of the statute
that raise significant constitutional questions related to the scope of
federal authority authorized therein. 531 U.S. at 174; see also Section
III.C.3, infra. By interpreting Justice Kennedy's significant nexus
standard to regulate the very same or similar waters the Supreme Court
ruled the text of the statute would not allow, the agencies pushed the
boundaries of statutory interpretation. The 2015 Rule also raised
questions regarding whether there is any meaning to the limits of
[[Page 56643]]
jurisdiction articulated by a unanimous Supreme Court in Riverside
Bayview, which found that ``[i]n determining the limits of [their]
power to regulate discharges under the Act,'' the agencies ``must
necessarily choose some point at which water ends and land begins.''
474 U.S. at 132 (``[B]etween 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.''). By allowing federal jurisdiction to reach certain isolated
ponds, such as those at issue in SWANCC, and certain physically remote
wetlands that ``do not implicate the boundary-drawing problem of
Riverside Bayview,'' the 2015 Rule asserted federal control over some
features that ``lack the necessary connection to covered waters . . .
described as a `significant nexus' in SWANCC[.]'' 547 U.S. at 742
(Scalia, J., plurality); \34\ see also Hawkes, 136 S. Ct. at 1817
(Kennedy, J., concurring) (``[T]he reach and systemic consequences of
the Clean Water Act remain a cause for concern.'' (emphasis added)).
---------------------------------------------------------------------------
\34\ While the agencies acknowledged being informed by the
Rapanos plurality in developing the 2015 Rule, see 80 FR 37061, the
regulation of non-adjacent waters as jurisdictional via the (a)(7)
and (a)(8) categories is inconsistent with that opinion. See
Rapanos, 547 U.S. at 742 (Scalia, J., plurality) (``[O]nly those
wetlands with a continuous surface connection to bodies that are
`waters of the United States' in their own right, so that there is
no clear demarcation between `waters' and wetlands, are `adjacent
to' such waters and covered by the Act.'' (emphasis omitted)); see
also id. at 748 (``If isolated permanent and seasonal ponds of
varying size and depth, which, after all, might at least be
described as `waters' in their own right--did not constitute `waters
of the United States,' a fortiori, isolated swampy lands do not
constitute `waters of the United States.' '') (original emphasis)
(internal quotation marks and citations omitted).
---------------------------------------------------------------------------
Given the 2015 Rule permitted federal jurisdiction over certain
physically disconnected waters and wetlands like those at issue in
SWANCC--either categorically as ``adjacent'' waters or on a case-
specific basis according to an expanded significant nexus test--the
agencies now conclude for this and other reasons that the 2015 Rule
exceeded the agencies' statutory authority as interpreted in SWANCC and
Justice Kennedy's concurrence in Rapanos. The agencies may not exceed
the authority of the statutes they are charged with administering, see
5 U.S.C. 706(2)(C) (prohibiting agency actions ``in excess of statutory
jurisdiction, authority, or limitations''), and must avoid
interpretations of the statutes they administer that push
constitutional boundaries. See Section III.C.3, supra. In contrast to
the 2008 Rapanos Guidance, the 2015 Rule failed to respect the limits
of the significant nexus standard established in SWANCC and the
foundation for Justice Kennedy's significant nexus standard in Rapanos.
For these reasons, the agencies repeal the 2015 Rule.
b. The 2015 Rule's Interpretation and Application of the Significant
Nexus Standard Did Not Respect the Limits of Federal Jurisdiction
Reflected in Justice Kennedy's Opinion in Rapanos
In the SNPRM, the agencies ``propose[d] to conclude that the 2015
Rule exceeded the agencies' authority under the CWA'' by adopting an
``expansive'' interpretation of Justice Kennedy's significant nexus
standard that was ``inconsistent with important aspects of that
opinion'' and resulted in a rule that ``cover[ed] waters outside the
scope of the Act.'' 83 FR 32228, 32240. The agencies have considered
the many comments received discussing these issues and now conclude
that, in contrast to the limiting nature of the significant nexus
standard first described in SWANCC and elaborated on by Justice Kennedy
in Rapanos, the agencies' interpretation of the significant nexus
standard in the 2015 Rule was overly expansive and did not comport with
or respect the limits of jurisdiction reflected in the CWA and
decisions of the Supreme Court.
The agencies' broader interpretation of the significant nexus
standard served as a fundamental basis of the 2015 Rule and informed
the development of the definitions of the categorically jurisdictional
and case-specific waters under the rule. See 80 FR 37060 (``The key to
the agencies' interpretation of the CWA is the significant nexus
standard, as established and refined in Supreme Court opinions.''). In
applying this broad standard, the agencies established an expansive
definition of jurisdictional ``tributaries,'' which in turn provided
for per se jurisdictional ``adjacent'' (including ``neighboring'')
waters and wetlands within specific distance and geographic limits of
those tributaries and from which even farther-reaching case-specific
significant nexus analyses could be conducted for isolated waters and
wetlands not already meeting the broad jurisdictional-by-rule
definitions. The result was a compounding of errors that subjected the
vast majority of water features in the United States to the
jurisdictional purview of the Federal government.\35\ This outcome is
incompatible with the significant nexus standard and the limits of
jurisdiction described in SWANCC and by Justice Kennedy in Rapanos.
---------------------------------------------------------------------------
\35\ The agencies noted in 2015 ``that the vast majority of the
nation's water features are located within 4,000 feet of a covered
tributary, traditional navigable water, interstate water, or
territorial sea.'' 2015 Rule Economic Analysis at 11.
---------------------------------------------------------------------------
To be sure, the agencies enjoy discretion in setting the
jurisdictional limits of the Act. See Rapanos, 547 U.S. at 758
(Roberts, C.J., concurring); but see id. at 757 (noting that the Corps'
``boundless view'' of its authority in SWANCC ``was inconsistent with
the limiting terms Congress had used in the Act''). However, that
discretion is not unbridled. It must remain within the confines of the
Act's text and the Supreme Court's interpretations of the outer bounds
of jurisdiction. The agencies exercised this discretion in an
impermissible manner in 2015 by codifying a regulatory test for
jurisdiction that exceeded the agencies' authority under the Act.
Whereas ``the significant-nexus test itself prevents problematic
applications of the statute,'' 547 U.S. at 783 (Kennedy, J.,
concurring) (emphasis added), the 2015 Rule misapplied the standard to
create them.
i. The 2015 Rule's Definition of ``Significant Nexus'' Was Inconsistent
With the Limiting Nature of Justice Kennedy's Significant Nexus
Standard
In Rapanos, Justice Kennedy found that adjacent ``wetlands possess
the requisite nexus, and thus come within the statutory phrase
`navigable waters,' if the wetlands, either alone or in combination
with similarly situated lands in the region, significantly affect the
chemical, physical, and biological integrity of other covered waters
more readily understood as `navigable.' '' Id. at 780 (Kennedy, J.,
concurring). Justice Kennedy articulated this significant nexus
standard to limit federal jurisdiction under the CWA to avoid
``problematic'' or ``unreasonable'' applications of the statute arising
from the breadth of the Corps' then-existing standard for tributaries.
See id. at 783, 782. Pursuant to Justice Kennedy's opinion, if a water
lacks a ``significant nexus,'' it is not jurisdictional under the Act.
See id. at 767.
After reviewing the public comments received on this rulemaking,
the agencies conclude that the 2015 Rule's definition of ``significant
nexus'' was inconsistent with the limiting nature of Justice Kennedy's
significant nexus standard, resulting in a definition of ``waters of
the United States'' that exceeded the scope of federal jurisdiction
under the Act. In particular, the agencies now find that the 2015
[[Page 56644]]
Rule's interpretation of the phrase ``similarly situated lands in the
region'' contravened the limiting principles inherent in Justice
Kennedy's articulation of the significant nexus test. The significant
change in the agencies' understanding of the meaning of Justice
Kennedy's opinion and reasons for reinterpreting it was not explained
and led to a compounding of errors in the agencies' misapplication of
the significant nexus test.
Justice Kennedy did not expressly define the phrase ``similarly
situated lands in the region.'' His opinion, nevertheless, provides
indications of the intended meaning of this phrase. The agencies
expressed their understanding of this phrase in the 2008 Rapanos
Guidance (at 8), stating that the phrase includes a tributary and all
wetlands adjacent to that tributary. The guidance describes a
``tributary'' as ``the entire reach of the stream that is of the same
order (i.e., from the point of confluence, where two lower order
streams meet to form the tributary, downstream to the point such
tributary enters a higher order stream).'' Id. at 10. Thus, under the
agencies' 2008 guidance:
[W]here evaluating significant nexus for an adjacent wetland,
the agencies will consider the flow characteristics and functions
performed by the tributary to which the wetland is adjacent along
with the functions performed by the wetland and all other wetlands
adjacent to that tributary. This approach reflects the agencies'
interpretation of Justice Kennedy's term ``similarly situated'' to
include all wetlands adjacent to the same tributary. . . .
Interpreting the phrase ``similarly situated'' to include all
wetlands adjacent to the same tributary is reasonable because such
wetlands are physically located in a like manner (i.e., lying
adjacent to the same tributary).
Id.
In the 2015 Rule, the agencies reinterpreted the phrase ``similarly
situated lands in the region'' by defining ``(1) which waters are
`similarly situated,' and thus should be analyzed in combination, in
(2) the `region,' for purposes of a significant nexus analysis.'' 80 FR
37065. This approach departed from the agencies' interpretation in the
2008 Rapanos Guidance by splitting the phrase into two separate,
expansive concepts (``similarly situated'' and ``in the region''). The
agencies considered waters to be ``similarly situated'' in the 2015
Rule when they ``function alike and are sufficiently close to function
together in affecting downstream waters.'' 80 FR 37106. The preamble of
the 2015 Rule further explained the concept of ``sufficiently close'':
Similarly situated waters can be identified as sufficiently
close together for purposes of this paragraph of the regulation when
they are within a contiguous area of land with relatively
homogeneous soils, vegetation, and landform (e.g., plain, mountain,
valley, etc.). In general, it would be inappropriate, for example,
to consider waters as ``similarly situated'' under paragraph (a)(8)
if these waters are located in different landforms, have different
elevation profiles, or have different soil and vegetation
characteristics, unless the waters perform similar functions and are
located sufficiently close to a ``water of the United States'' to
allow them to consistently and collectively function together to
affect a traditional navigable water, interstate water, or the
territorial seas. In determining whether waters under paragraph
(a)(8) are sufficiently close to each other the agencies will also
consider hydrologic connectivity to each other or a jurisdictional
water.
80 FR 37092 (emphasis added). The 2015 Rule preamble also established
that ``under paragraph (a)(8), waters do not need to be of the same
type (as they do in paragraph (a)(7)) to be considered similarly
situated. As described above, waters are similarly situated under
paragraph (a)(8) where they perform similar functions or are located
sufficiently close to each other, regardless of type.'' Id. (emphasis
added). The agencies explained that this interpretation was based in
part on ``one of the main conclusions of the [Connectivity Report] . .
. that the incremental contributions of 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.'' Id. at 37066. The agencies
then defined ``in the region'' within the 2015 Rule's regulatory
definition of ``significant nexus'' to mean ``the watershed that drains
to the nearest'' primary water (i.e., categories (a)(1)-(3)).\36\
---------------------------------------------------------------------------
\36\ The preamble of the 2015 Rule, however, created an
exception for the codified definition of ``in the region'' in the
Arid West in ``situations where the single point of entry watershed
is very large.'' See 80 FR 37092 (``[In those situations] it may be
reasonable to evaluate all similarly situated waters in a smaller
watershed. Under those circumstances, the agencies may demarcate
adjoining catchments surrounding the water to be evaluated that,
together, are generally no smaller than a typical 10-digit
hydrologic unit code (HUC-10) watershed in the same area. The area
identified by this combination of catchments would be the `region'
used for conducting a significant nexus evaluation under paragraphs
(a)(7) or (a)(8) under those situations. The basis for such an
approach in very large single point of entry watersheds in the arid
West should be documented in the jurisdictional determination.'').
The agencies now conclude that this exception, included in the final
rule preamble without adequate notice, was at odds with the
regulatory text of the 2015 Rule and created further confusion as to
the application of the 2015 Rule's ``significant nexus'' test and
the scope of aggregation for purposes of a significant nexus inquiry
under the rule.
---------------------------------------------------------------------------
The agencies acknowledged this change in position from the 2008
Rapanos Guidance by explaining: ``The functions of the contributing
waters are inextricably linked and have a cumulative effect on the
integrity of the downstream traditional navigable water, interstate
water, or the territorial sea. For these reasons, it is more
appropriate to conduct a significant nexus analysis at the watershed
scale than to focus on a specific site, such as an individual stream
segment.'' Id. at 37066. As expressed in the 2008 Rapanos Guidance, the
agencies previously understood the phrase ``similarly situated lands in
the region'' to include all wetlands adjacent to the same tributary.
The 2008 Rapanos Guidance states that ``[a] tributary . . . is the
entire reach of the stream that is of the same order[.]'' 2008 Rapanos
Guidance at 10.
The 2015 Rule also departed from the 2008 Rapanos Guidance by
applying the concept of ``similarly situated lands in the region'' to
other waters, not only wetlands, across the entire watershed of the
nearest primary water. See id. at 37066 (``A single point of entry
watershed is the drainage basin within whose boundaries all
precipitation ultimately flows to the nearest single traditional
navigable water, interstate water, or the territorial sea. . . . The
watershed includes all streams, wetlands, lakes, and open waters within
its boundaries.''). In essence, the agencies determined that not only
do ``wetlands possess the requisite nexus . . . if the wetlands, either
alone or in combination with similarly situated lands in the region,
significantly affect the chemical, physical, and biological integrity
of other covered waters more readily understood as `navigable,' '' 547
U.S. at 780 (Kennedy, J., concurring) (emphasis added), but also
``[tributaries] possess the requisite nexus, and thus come within the
statutory phrase `navigable waters,' if the [tributaries], either alone
or in combination with similarly situated [tributaries] in the region,
significantly affect the chemical, physical, and biological integrity
of other covered waters more readily understood as `navigable.' '' 80
FR 37068 (``[W]aters meeting the definition of `tributary' in a single
point of entry watershed are similarly situated and have a significant
nexus because they significantly affect the chemical, physical, or
biological integrity of traditional navigable waters, interstate
waters, and the territorial seas.'').
[[Page 56645]]
As a result of the agencies' reinterpretation of a Supreme Court
Justice's opinion referencing ``similarly situated lands in the
region,'' the 2015 Rule broadened the scope of aggregation for
determining jurisdiction in a ``significant nexus'' analysis relative
to the 2008 Rapanos Guidance, which more closely aligned with what
Justice Kennedy intended for that test. In the SNPRM, the agencies
solicited comment on whether the 2015 Rule's approach to the phrase
``similarly situated lands in the region'' relied on the scientific
literature ``without due regard for the restraints imposed by the
statute and case law.'' 83 FR 32240. Multiple commenters expressed
concern that the 2015 Rule's interpretation of the phrase was
inconsistent with Justice Kennedy's opinion. In particular, these
commenters suggested that the 2015 Rule's approach of aggregating the
contributions of all streams or all wetlands within an entire watershed
impermissibly lowered the bar for establishing a significant nexus.
Other commenters asserted that the 2015 Rule's approach was consistent
with Justice Kennedy's opinion because the agencies found, in reliance
on the Connectivity Report, that waters aggregated at a watershed scale
have a connection to and impact downstream traditional navigable
waters.
The agencies now conclude that applying Justice Kennedy's concept
of ``similarly situated lands in the region'' to encompass all
``tributaries'' as broadly defined in the 2015 Rule and potentially all
wetlands in a single point of entry watershed of the nearest primary
water resulted in a regulatory definition that expanded federal
jurisdiction to cover waters outside the scope of the Act, and thus
exceeded the agencies' statutory authority. The agencies' analytical
failure occurred in the first instance in the transition between the
proposed and final versions of the 2015 Rule. For example, potential
inclusion of all of the wetlands or waters in the watershed of the
nearest primary water under the final 2015 Rule significantly expanded
the scope of aggregation that determined jurisdiction in a
``significant nexus'' analysis from the focus in the proposed rule on
waters ``located sufficiently close together or sufficiently close to a
`water of the United States' so that they can be evaluated as a single
landscape unit.'' 79 FR 22263. The proposed rule adhered more closely
to the agencies' position on aggregation in the 2008 Rapanos Guidance
in that wetlands adjacent to the same tributary reach are inherently
located closer together and closer to a ``water of the United States''
than are all non-adjacent wetlands across an entire single point of
entry watershed. But in finalizing the 2015 Rule, the agencies viewed
the scientific literature through a broader lens relative to the
proposed rule. See, e.g., 80 FR 37094. This broader lens, as discussed
in the following subsections, resulted in the per se regulation of a
more expansive class of (a)(5) ``tributaries,'' including categorical
jurisdiction over ephemeral ``tributaries,'' the per se regulation of a
broader range of waters (not just wetlands) considered ``adjacent''
under the (a)(6) category, and case-specific inclusion of waters (not
just wetlands) that are not ``adjacent'' to other waters but
nonetheless could be regulated as ``waters of the United States''
according to the rule's (a)(7) and (a)(8) categories.
The agencies adopted this broader aggregation approach without
proper analysis of whether this approach was consistent with the
statutory limits in the CWA's text and the limits included in Justice
Kennedy's opinion in Rapanos. As explained in Section III.B, Justice
Kennedy articulated the significant nexus standard to limit federal
jurisdiction under the CWA to avoid ``unreasonable'' assertions of
jurisdiction arising from the breadth of the Corps' then-existing
standard for tributaries. As evidenced by the discussion in his
concurrence, Justice Kennedy intended his significant nexus standard to
be a limiting test, cabining the potential overreach of federal CWA
jurisdiction. The agencies now believe that interpreting ``similarly
situated lands in the region'' to encompass all ``tributaries'' as
broadly defined in the 2015 Rule and potentially all wetlands in a
``watershed that drains to the nearest'' primary water was inconsistent
with the application of Justice Kennedy's significant nexus test as a
limiting standard.
For example, the agencies should have considered whether the
aggregated landscape approach swept certain isolated ponds, such as
those at issue in SWANCC, into federal jurisdiction. See Section
III.C.1.a, supra. The SWANCC Court concluded that ``the text of the
statute will not allow'' the Corps to regulate ``ponds that are not
adjacent to open water.'' SWANCC, 531 U.S. at 168. And in Rapanos,
Justice Kennedy even questioned the dissent's conclusion ``that the
ambiguity in the phrase `navigable waters' allows the Corps to construe
the statute as reaching all `non-isolated wetlands[.]' '' 547 U.S. at
780 (emphasis added) (stating that this position ``seems incorrect'').
Similarly, Justice Kennedy did not subscribe to the Rapanos dissent's
position that ``would permit federal regulation whenever wetlands lie
alongside a ditch or drain, however remote and insubstantial, that
eventually may flow into traditional navigable waters.'' Id. at 778.
``The deference owed to the Corps' interpretation of the statute,''
Justice Kennedy wrote, ``does not extend so far.'' Id. at 778-79.
The 2015 Rule also permitted the agencies to find a ``significant
nexus'' based on ``just one function,'' 80 FR 37068, such as
``provision of life cycle dependent aquatic habitat'' for species found
in primary waters. Id. at 37106. For an effect to be significant, the
rule required that it must be more than speculative or insubstantial.
Id. The rule allowed for jurisdiction when a water significantly
affects ``aquatic habitats through wind- and animal-mediated
dispersal'' of ``[a]nimals and other organisms,'' id. at 37072,
including when ``[p]lants and invertebrates'' `` `hitchik[e]' on
waterfowl'' ``to and from prairie potholes'' anywhere across an entire
watershed. Connectivity Report at 5-5. Yet if, as the SWANCC Court
held, the use of isolated ponds by migratory birds themselves was an
insufficient basis upon which to establish jurisdiction, it cannot
stand to reason that the seeds and critters clinging to their feathers
can constitute a ``significant nexus.'' See 547 U.S. at 749 (Scalia,
J., plurality) (``This [strictly ecological] reasoning would swiftly
overwhelm SWANCC altogether[.]'').
Several federal courts have now questioned the 2015 Rule's
interpretation of Justice Kennedy's significant nexus standard in
Rapanos. The U.S. District Court for the District of North Dakota found
``[t]he Rule . . . likely fails to meet [Justice Kennedy's significant
nexus] standard'' and ``allows EPA regulation of waters that do not
bear any effect on the `chemical, physical, and biological integrity'
of any navigable-in-fact water.'' North Dakota v. EPA, 127 F. Supp. 3d
1047, 1056 (D.N.D. 2015). Likewise, the Sixth Circuit stated in
response to petitioners' ``claim that the [2015] Rule's treatment of
tributaries, `adjacent waters,' and waters having a `significant nexus'
to navigable waters is at odds with the Supreme Court's ruling in
Rapanos'' that ``[e]ven assuming, for present purposes, as the parties
do, that Justice Kennedy's opinion in Rapanos represents the best
instruction on the permissible parameters of `waters of the United
States' as used in the Clean Water Act, it is far from clear that the
new Rule's distance limitations are harmonious with the instruction.''
In re EPA, 803 F.3d at 807 & n.3 (noting that
[[Page 56646]]
``[t]here are real questions regarding the collective meaning of the
[Supreme] Court's fragmented opinions in Rapanos''). The agencies
recognize these deficiencies in the 2015 Rule and agree with the
concerns raised by these courts.
As explained in the following sections, the agencies find that the
application of an overly broad significant nexus standard in the 2015
Rule resulted in a regulatory definition of ``waters of the United
States'' that did not comport with Justice Kennedy's understanding of
the limits of federal CWA jurisdiction and exceeded the agencies'
statutory authority. Moreover, the agencies find that while Justice
Kennedy noted ``the significant-nexus test itself prevents problematic
applications of the statute,'' 547 U.S. at 783 (Kennedy, J.,
concurring), including asserting jurisdiction over waters or wetlands
like those at issue in SWANCC having ``little or no connection'' to
navigable waters, id. at 767, the 2015 Rule's broad significant nexus
standard would have led to similar unreasonable applications of the CWA
that the SWANCC Court and Justice Kennedy both sought to prevent. See
Section III.C.3, infra.
ii. The 2015 Rule's Definition of (a)(5) Waters Exceeded the Scope of
CWA Jurisdiction Envisioned in Justice Kennedy's Significant Nexus Test
The agencies' misinterpretation of Justice Kennedy's significant
nexus standard resulted in the categorical assertion of per se
jurisdiction over an expansive ``tributary'' network. The 2015 Rule
defined ``tributary'' as a water that contributes flow, either directly
or through another water, to a primary water and that is characterized
by the presence of the ``physical indicators'' of a bed and banks and
an ordinary high water mark. ``These physical indicators demonstrate
there is volume, frequency, and duration of flow sufficient to create a
bed and banks and an ordinary high water mark, and thus to qualify as a
tributary.'' 80 FR 37105. The 2015 Rule's ``tributary'' definition
included channels that flow ``only in response to precipitation
events,'' id. at 37076-77, and features that may be dry for months or
many years \37\ as long as they contribute flow, however minimal,
infrequent, or indirect to a primary water, and exhibit physical
indicators of a bed, bank, and an ordinary high water mark.
---------------------------------------------------------------------------
\37\ A study by the U.S. Army Corps of Engineers in the Arid
West, for example, revealed flood recurrence intervals for the field
ordinary high water mark ranged from <1 to 15.5 years. See U.S. Army
Corps of Engineers Engineer Research and Development Centers. ERDC/
CRREL TR-11-12. Ordinary High Flows and the Stage-Discharge
Relationship in the Arid West Region. Curtis, K.E., R.W. Lichvar,
L.E. Dixon. (July 2011) at Table 4, available at http://www.spk.usace.army.mil/Portals/12/documents/regulatory/pdf/TR11-12_gage.pdf (hereafter, ``Ordinary High Flows in the Arid West'').
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Coupling the 2015 Rule's expansive definition of ``significant
nexus'' with the findings of the Connectivity Report, the agencies
concluded at that time that features meeting the rule's ``tributary''
definition ``provide many common vital functions important to the
chemical, physical, and biological integrity of downstream waters'' and
``function together to affect downstream waters'' such that all
features that satisfied the ``tributary'' definition could be
considered ``similarly situated'' and thus assessed together in a
significant nexus analysis. 80 FR 37066. Because of this aggregate
approach, the agencies found that all (a)(5) ``tributaries'' could be
considered categorically jurisdictional because any covered tributary,
either alone or when considered in combination with other covered
tributaries in the watershed, had a significant nexus to primary
waters. 80 FR 37058.
Though some commenters found that the agencies properly relied on
the 2015 Rule's scientific record to conclude that features meeting the
``tributary'' definition possess the requisite significant nexus and
are thus categorically jurisdictional, other commenters expressed
concern with the agencies' categorical assertion of jurisdiction over
covered tributaries. These commenters suggested that the rule's
``tributary'' definition was too broad and would extend federal
jurisdiction to features with remote proximity and tenuous connections
to traditional navigable waters, contrary to the limits of CWA
authority recognized in Justice Kennedy's Rapanos concurrence.
The agencies now conclude that the 2015 Rule's ``tributary''
definition exceeded the jurisdictional limits envisioned in Justice
Kennedy's significant nexus standard. Under the 2015 Rule's definition
of ``tributary,'' the agencies determined that the mere contribution of
flow to primary waters--however minimal, infrequent, or indirect--and
the presence of ``physical indicators'' of a bed and banks and an
ordinary high water mark were sufficient to support the categorical
assertion of jurisdiction over features (including individual features)
meeting the definition of ``tributary'' because the agencies determined
that such features, in the aggregate, would possess a significant nexus
to navigable waters. See 80 FR 37076. Yet, Justice Kennedy found that
``[a]bsent some measure of the significance of the connection for
downstream water quality,'' a ``mere hydrologic connection'' is ``too
uncertain'' and ``should not suffice in all cases'' as ``the connection
may be too insubstantial . . . to establish the required nexus'' with
``navigable waters as traditionally understood.'' 547 U.S. at 784-85
(Kennedy, J., concurring). Moreover, while Justice Kennedy questioned
jurisdiction over features with ``[t]he merest trickle [even] if
continuous'' as potentially lacking a significant nexus to navigable
waters, id. at 769, the 2015 Rule's definition of ``tributary''
categorically includes the merest trickle--whether continuous or
discontinuous--so long as it contributes flow at some unspecified time,
directly or indirectly, to downstream navigable-in-fact waters, has the
requisite physical indicators, and is not covered by an exclusion. Such
an interpretation of ``tributary'' is, at the very least, in
significant tension with Justice Kennedy's standard.
The agencies also conclude that the categorical assertion of
jurisdiction over features meeting the 2015 Rule's ``tributary''
definition, particularly ephemeral features, was inconsistent with
Justice Kennedy's significant nexus standard. Because ephemeral streams
were not categorically jurisdictional under the pre-2015 regulations as
informed by the agencies' applicable guidance, see 2008 Rapanos
Guidance at 7 (`` `[R]elatively permanent' waters do not include
ephemeral tributaries which flow only in response to precipitation. . .
. CWA jurisdiction over these waters will be evaluated under the
significant nexus standard[.]''), the 2015 Rule's ``tributary''
definition expanded the scope of federal CWA jurisdiction over such
features without subjecting them to a case-specific significant nexus
evaluation. The agencies expect that the extent of this change might
have been greater in portions of the country where non-relatively
permanent (i.e., non-seasonal intermittent and ephemeral) streams are
more prevalent (e.g., the arid West), relative to other parts of the
country. The agencies now conclude that this change in the scope of
federal CWA jurisdiction due to the categorical inclusion of ephemeral
streams meeting the rule's ``tributary'' definition encroached too far
into the realm of traditional State land use authority by asserting per
se federal control over certain waters more appropriately left to the
jurisdiction of the States, such as
[[Page 56647]]
ephemeral streams distant or far-removed from navigable-in-fact waters.
This intrusion into State authority does not align with Justice
Kennedy's significant nexus standard, as it gives rise to the type of
federalism concerns and ``problematic applications of the statute''
that Justice Kennedy's significant nexus test was intended to prevent.
See 547 U.S. at 783 (Kennedy, J., concurring) (``[T]he significant-
nexus test itself prevents problematic applications of the
statute[.]''). Though the agencies had found it appropriate to
categorically include (a)(5) ``tributaries'' due to the ``science-based
conclusion'' that such waters, either individually or collectively,
possess the requisite significant nexus, the agencies now find that
this approach was flawed, as the agencies relied on scientific
information about the aggregate effects of (a)(5) ``tributaries''
without due regard for the limits on federal CWA jurisdiction reflected
in Justice Kennedy's Rapanos concurrence. See 80 FR 37079; 2015 Rule
Response to Comments--Topic 8: Tributaries at 140; see also Section
III.C.1.d, infra.
The agencies' concerns regarding the breadth of the 2015 Rule's
``tributary'' definition are echoed in the U.S. District Court for the
Southern District of Georgia's remand order. Georgia v. Wheeler, No.
2:15-cv-079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019). There, the court
found that the categorical assertion of jurisdiction over features
meeting the 2015 Rule's ``tributary'' standard ``is an impermissible
construction of the CWA,'' as it could cover waters that lack the
requisite significant nexus, particularly in the Arid West. Id. at *13-
15.
The agencies also conclude that the 2015 Rule's ``tributary''
definition failed to properly account for Justice Kennedy's concerns,
explained in Rapanos, regarding the use of a broad ``tributary''
standard as the ``determinative measure'' of whether adjacent wetlands
possess the requisite significant nexus. 547 U.S. at 781. Before
Rapanos, the Corps deemed a water a jurisdictional tributary if it fed
into a traditional navigable water (or a tributary thereof) and
possessed ``an ordinary high-water mark,'' defined as a ``line on the
shore established by the fluctuations of water and indicated by
[certain] physical characteristics.'' Id. Justice Kennedy found that
this tributary concept ``may well provide a reasonable measure of
whether specific minor tributaries bear a sufficient nexus with other
regulated waters to constitute `navigable waters' under the Act'' if it
``is subject to reasonably consistent application.'' Id. (citing a 2004
GAO Report ``noting variation in results among Corps district
offices''). ``Yet,'' as Justice Kennedy stated, ``the breadth of this
standard--which seems to leave wide room for regulation of drains,
ditches, and streams remote from any navigable-in-fact water and
carrying only minor volumes towards it--precludes its adoption as the
determinative measure of whether adjacent wetlands are likely to play
an important role in the integrity of an aquatic system comprising
navigable waters as traditionally understood.'' Id. ``[M]ere adjacency
to a tributary of this sort is insufficient; a similar ditch could just
as well be located many miles from any navigable-in-fact water and
carry only insubstantial flow towards it. A more specific inquiry,
based on the significant-nexus standard, is therefore necessary.'' Id.
at 786. Justice Kennedy's discussion focused on adjacent wetlands
because the facts of Rapanos presented the question of jurisdiction
over wetlands. However, his concern that the agencies' ``tributary''
definition giving rise to the Rapanos dispute may be overly expansive--
such that federal jurisdiction over wetlands adjacent to those
tributaries may exceed the scope of the CWA--is relevant to the
agencies' consideration of the ``tributary'' definition in the 2015
Rule.
Justice Kennedy stated that ``[t]hrough regulations or
adjudication, the Corps may choose to identify categories of
tributaries that, due to their volume of flow (either annually or on
average), their proximity to navigable waters, or other relevant
considerations, are significant enough that wetlands adjacent to them
are likely, in the majority of cases, to perform important functions
for an aquatic system incorporating navigable waters,'' id. at 780-81,
but the 2015 Rule did not properly consider those factors. Under the
2015 Rule, many minor ditches and ephemeral ``tributaries'' would be
considered ``navigable waters'' categorically, regardless of their
distance to traditional navigable waters or whether the downstream
water quality effects of such individual features are ``speculative or
insubstantial.'' 547 U.S. at 780 (Kennedy, J., concurring). As such,
the agencies conclude that the 2015 Rule's ``tributary'' definition
would have swept in ``drains, ditches, and streams remote from any
navigable-in-fact water and carrying only minor water volumes towards
it'' such that it could not be ``the determinative measure of whether
adjacent wetlands [to such features] are likely to play an important
role in the integrity of an aquatic system.'' See id. at 781 (Kennedy,
J., concurring); see also id. at 738 (plurality).\38\
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\38\ Courts that have considered the merits of challenges to the
2015 Rule at the preliminary injunction stage similarly observed
that the rule may conflict with Justice Kennedy's opinion in
Rapanos, particularly the rule's definition of ``tributary.'' The
District of North Dakota found that the definitions in the 2015 Rule
raise ``precisely the concern Justice Kennedy had in Rapanos, and
indeed the general definition of tributary [in the 2015 Rule] is
strikingly similar'' to the standard for tributaries that concerned
Justice Kennedy in Rapanos. North Dakota, 127 F. Supp. 3d at 1056.
The Southern District of Georgia also found that ``[t]he same fatal
defects that plagued the definition of tributaries in Rapanos plague
the [2015 Rule] here.'' Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL
3949922, at *16 (S.D. Ga. Aug. 21, 2019).
---------------------------------------------------------------------------
The agencies now conclude that the 2015 Rule inappropriately
established per se jurisdiction over features that Justice Kennedy
characterized as ``drains, ditches, and streams remote from any
navigable-in-fact water and carrying only minor water volumes toward
it.'' Id. at 781 (Kennedy, J., concurring). The rule then used those
``tributaries'' as the starting point from which to establish its
category of jurisdictional-by-rule ``adjacent'' and ``neighboring''
waters and wetlands and the baseline from which to extend distance
limits of up to 4,000 feet to determine the jurisdictional status of
those waters and wetlands based on a case-specific significant nexus
test. In doing so (as described in the next two subsections), the
agencies now find that they compounded their error and cast an even
wider net of federal jurisdiction in contravention of Justice Kennedy's
concurrence in Rapanos.
iii. The 2015 Rule's Definition of (a)(6) Waters Exceeded the Scope of
CWA Jurisdiction Envisioned in Justice Kennedy's Significant Nexus Test
Under category (a)(6), the 2015 Rule asserted jurisdiction-by-rule
over ``all waters adjacent to a water identified in paragraphs (a)(1)
through (5) of this section, including wetlands, ponds, lakes, oxbows,
impoundments, and similar waters.'' 80 FR 37104. The agencies did not
expressly amend the longstanding definition of ``adjacent'' (defined as
``bordering, contiguous, or neighboring''), but effectively broadened
the definition by adding a definition of ``neighboring'' that impacted
the interpretation of ``adjacent.'' The 2015 Rule defined
``neighboring'' to encompass all waters located within 100 feet of the
ordinary high water mark of a category (1) through (5) ``jurisdictional
by rule'' water; all waters located within the 100-year floodplain of a
category (1) through (5) ``jurisdictional by rule'' water and not more
than 1,500 feet from the ordinary high water mark of such
[[Page 56648]]
water; all waters located within 1,500 feet of the high tide line of a
category (1) though (3) ``jurisdictional by rule'' water; and all
waters within 1,500 feet of the ordinary high water mark of the Great
Lakes. 80 FR 37105. The entire water was considered neighboring if any
portion of it lies within one of these zones. See id. The agencies'
2014 proposed rule did not include these distance limitations on the
definition of ``adjacent'' or ``neighboring.''
The agencies received many comments on the NPRM and SNPRM
discussing the 2015 Rule's approach to ``adjacent'' waters. Many
commenters asserted that the rule's definition of ``adjacent'' waters
could cover waters adjacent to remote tributaries, resulting in the
assertion of jurisdiction over the same type of waters that Justice
Kennedy suggested did not fall within the scope of CWA jurisdiction.
Other commenters stated that the 2015 Rule's ``adjacent'' waters
definition was consistent with Justice Kennedy's significant nexus
standard because they stated that the scientific record for the 2015
Rule supported the agencies' finding at that time that such waters had
a significant nexus to downstream navigable-in-fact waters. After
considering the public comments, the agencies now find that the 2015
Rule's treatment of ``adjacent'' exceeded the agencies' statutory
authority and ran afoul of Justice Kennedy's significant nexus test in
Rapanos.
As a threshold matter, because the definition of (a)(6) waters in
the 2015 Rule was keyed to waters ``adjacent'' to (a)(1) through (a)(5)
waters, the definition of (a)(6) waters rests on tenuous jurisdictional
footing for the reasons discussed in the (a)(5) ``tributaries'' section
above. In addition, the rule's definition of (a)(6) waters did not
comport with Justice Kennedy's significant nexus test.
In Rapanos, Justice Kennedy's analysis of the agencies'
jurisdictional test clearly distinguished between ``wetlands adjacent
to navigable-in-fact waters,'' which can be regulated based on
adjacency alone, and wetlands adjacent ``to nonnavigable tributaries,''
for which ``the Corps must establish a significant nexus on a case-by-
case basis'' should it seek to regulate them, ``[a]bsent more specific
regulations.'' 547 U.S. at 782 (Kennedy, J., concurring). Justice
Kennedy found this individualized significant nexus determination
``necessary to avoid unreasonable applications of the statute'' in the
face of ``the potential overbreadth of the Corps' regulations.'' Id.
Specifically, Justice Kennedy expressed concern that the breadth of the
Corps' then-existing tributary standard ``precludes its adoption as the
determinative measure of whether adjacent wetlands are likely to play
an important role in the integrity of an aquatic system comprising
navigable waters as traditionally understood.'' Id. at 781.
The agencies now conclude that the 2015 Rule did just that--adopted
a categorically jurisdictional rule for all adjacent wetlands (and
waters) tied to a similarly broad ``tributary'' standard that did not
adequately respond to Justice Kennedy's concerns about ``insubstantial
flow'' and remoteness. Id. at 786. The agencies now find that the 2015
Rule codified the very test that Justice Kennedy rejected and for which
the dissenting Justices in Rapanos advocated. Justice Stevens, writing
for himself and three other Justices in dissent, did not share Justice
Kennedy's concerns with the breadth of the Corps' then-existing
tributary standard and with it serving as the basis for determining
adjacency. Indeed, Justice Stevens would have held that the significant
nexus test ``is categorically satisfied as to wetlands adjacent to
navigable waters or their tributaries'' because ``it [is] clear that
wetlands adjacent to tributaries of navigable waters generally have a
`significant nexus' with the traditionally navigable waters
downstream.'' 547 U.S. at 807 (Stevens, J., dissenting) (emphasis
added). Although the agencies sought to implement the significant nexus
test articulated by Justice Kennedy in Rapanos when finalizing the 2015
Rule, the agencies now conclude that by failing to address Justice
Kennedy's concerns as to the breadth of the ``tributary'' definition to
which the ``adjacent'' definition was tied, the agencies erroneously
adopted and codified a test more like Justice Stevens's categorical
test for adjacent waters under the guise of promulgating ``more
specific regulations.'' Id. at 782 (Kennedy, J., concurring).
In remanding the 2015 Rule to the agencies, the U.S. District Court
for the Southern District of Georgia also found that the rule's
``adjacent'' waters definition relied on an impermissibly broad
``tributary'' standard. Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL
3949922, at *15-17 (S.D. Ga. Aug. 21, 2019). There, the court explained
that though the 2015 Rule's ``tributary'' definition contained the
additional requirement of a bed and banks, the rule's definition was
``functionally the same as the definition in Rapanos,'' as the court
found ``no evidence demonstrating how the addition of bed and banks . .
. does anything to further limit the definition of tributaries so as to
alleviate Justice Kennedy's concerns of over-breadth in Rapanos.'' Id.
at *16-17. The court held that as a result, the ``adjacent'' waters
provision ``could include `remote' waters . . . that have only a
`speculative or insubstantial' effect on the quality of navigable in
fact waters,'' contrary to the significant nexus standard in Justice
Kennedy's opinion. Id. (quoting Rapanos, 547 U.S. at 778-81 (Kennedy,
J., concurring)).
Upon further reflection, including consideration of arguments made
in the subsequent litigation expressing certain concerns that litigants
were unable to make during the notice and comment period, as well as
the decisions of those courts that have preliminarily or finally
reviewed the 2015 Rule, the agencies now believe that Justice Kennedy
would not have endorsed the agencies' approach in the 2015 Rule, just
as he did not join the dissenting Justices in Rapanos. For the agencies
to conclude otherwise in the 2015 Rule was an error, requiring its
repeal.
In addition, the agencies find that the 2015 Rule's definition of
``adjacent'' also exceeded the agencies' authority to regulate
``navigable waters'' under the CWA. Under the 2015 Rule, the agencies
determined that all waters and wetlands meeting the ``adjacent''
definition categorically possessed a significant nexus, either alone or
in combination with similarly situated waters, and thus were
jurisdictional. 80 FR 37058. The agencies justified this approach
through heavy reliance on the findings of the Connectivity Report, see
80 FR 37066, and a reinterpretation of the phrase ``similarly situated
lands in the region.'' See Section III.C.1.b.i, supra. Under the 2008
Rapanos Guidance, which the agencies now believe hews closer to Justice
Kennedy's opinion in that case, only wetlands adjacent to the ``reach
of the stream that is of the same order'' of a non-navigable tributary
that is not relatively permanent or wetlands adjacent to but that do
not directly abut a relatively permanent non-navigable tributary were
aggregated for the purposes of a significant nexus analysis. 2008
Rapanos Guidance at 1. In contrast, under the 2015 Rule, these same
wetlands were per se jurisdictional as ``adjacent waters.'' The 2015
Rule also expanded the scope of aggregation for its case-specific
significant nexus analysis to non-adjacent wetlands and waters alone or
in combination with similarly situated wetlands and waters across an
entire single point of entry watershed that drains to the nearest
primary water. The agencies now conclude that this approach was
inconsistent with the
[[Page 56649]]
agencies' CWA authority as envisioned by Justice Kennedy's concurring
opinion in Rapanos.
While the 2015 Rule asserted categorical jurisdiction over ``all
waters [and wetlands] located within 100 feet of the ordinary high
water mark'' of even the most remote and minor channel meeting the
rule's definition of ``tributary,'' Justice Kennedy stated that ``[t]he
deference owed to the Corps' interpretation of the statute does not
extend'' to ``wetlands'' that ``lie alongside a ditch or drain, however
remote or insubstantial, that eventually may flow into traditional
navigable waters.'' Rapanos, 547 U.S. at 778-79 (Kennedy, J.,
concurring). Justice Kennedy also stated that ``[t]he Corps' theory of
jurisdiction'' in Rapanos and Carabell--that being ``adjacency to
tributaries, however remote and insubstantial''--``raises concerns.''
Id. at 780. In fact, Justice Kennedy took issue with the dissent's
conclusion in Rapanos that ``the ambiguity in the phrase `navigable
waters' allows the Corps to construe the statute as reaching all `non-
isolated wetlands,' '' noting that this position ``seems incorrect.''
Id. Further, with respect to wetlands adjacent to nonnavigable
tributaries, Justice Kennedy determined that ``mere adjacency . . . is
insufficient. A more specific inquiry, based on the significant-nexus
standard, is . . . necessary.'' Id. at 786; see also id. at 774 (``As
Riverside Bayview recognizes, the Corps' adjacency standard is
reasonable in some of its applications.'') (emphasis added). Yet, under
the 2015 Rule's expansive ``adjacent'' waters definition, the agencies
established that adjacency alone was sufficient and reasonable in all
of its applications--including situations where any portion of a
physically disconnected wetland lay within 100 feet of a remote drain
meeting the rule's broad ``tributary'' definition.
The agencies also find that the 2015 Rule's per se coverage under
the definition of ``adjacent'' of all waters and wetlands located
within the 100-year floodplain and within 1,500 feet of the ordinary
high water mark of a primary water, jurisdictional impoundment, or
tributary was not consistent with the limits of federal jurisdiction
under the CWA as interpreted by Justice Kennedy. Pursuant to that
provision, the rule extended federal jurisdiction to certain isolated
ponds, wetlands, and ditches categorically simply because they might
have a hydrologic connection with such waters during a storm event with
a low probability of occurring in any given year. The agencies now
conclude that this categorical inclusion was inconsistent with Justice
Kennedy's significant nexus standard in Rapanos, which requires beyond
``speculat[ion]'' that a water or wetland ``significantly affect[s] the
chemical, physical, and biological integrity of other covered waters
more readily understood as `navigable.' '' Id. at 780. Indeed, Justice
Kennedy stated that a ``mere hydrologic connection should not suffice
in all cases'' because it ``may be too insubstantial for the hydrologic
linkage to establish the required nexus with navigable waters as
traditionally understood.'' Id. at 784-85 (emphasis added). As applied
to the facts of Carabell, Justice Kennedy believed that ``possible
flooding'' was an unduly speculative basis for a jurisdictional
connection between wetlands and other jurisdictional waters. Id. at 786
(Kennedy, J., concurring). The Rapanos plurality similarly questioned
the Corps' broad interpretation of its regulatory authority to include
wetlands `` `adjacent' to covered waters . . . if they lie within the
100-year floodplain of a body of water.'' Id. at 728 (Scalia, J.,
plurality) (internal quotation marks and citations omitted). Thus, the
agencies find that a once in a 100-year hydrologic connection between
otherwise physically disconnected waters, which satisfied the
definition of ``neighboring'' in the 2015 Rule, is too insubstantial to
justify a categorical finding of a ``significant nexus'' with
navigable-in-fact waters under Rapanos. See also Georgia v. Wheeler,
No. 2:15-cv-079, 2019 WL 3949922, at *18 (S.D. Ga. Aug. 21, 2019)
(finding that the 2015 Rule failed to show that the majority of waters
within the 100-year floodplain have a significant nexus to navigable
waters). To be sure, certain waters that meet the definition of
``neighboring'' in the 2015 Rule would meet Justice Kennedy's
``significant nexus'' test; however, other features that would not meet
Justice Kennedy's test would nonetheless meet the definition of
``neighboring'' in the 2015 Rule and thus be jurisdictional per se.
The agencies therefore find that their interpretation of
``adjacent'' and ``neighboring'' exceeded the limits of federal CWA
jurisdiction described by Justice Kennedy and ignored his intention
that the significant nexus test be used to prevent categorical
assertion of jurisdiction over all wetlands adjacent to all
tributaries, broadly defined. The 2015 Rule misconstrued Justice
Kennedy's significant nexus standard to do exactly the opposite--permit
categorical assertion of jurisdiction over all wetlands and waters
``adjacent'' or ``neighboring'' all ``tributaries.'' For the foregoing
reasons, the agencies conclude that the 2015 Rule's definition of
(a)(6) waters exceeded their statutory authority.
iv. The 2015 Rule's Inclusion of (a)(7) and (a)(8) Waters That Could Be
Jurisdictional Under a Case-Specific Significant Nexus Analysis
Exceeded the Scope of CWA Jurisdiction Envisioned in Justice Kennedy's
Significant Nexus Test
The 2015 Rule established two types of jurisdictional waters
``found after a case-specific analysis to have a significant nexus to
traditional navigable waters, interstate waters, or the territorial
seas, either alone or in combination with similarly situated waters in
the region.'' 80 FR 37058. The first category, (a)(7) waters, consists
of five specific types of waters in specific regions of the country:
Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal
pools in California, and Texas coastal prairie wetlands. Id. at 37105.
The second category, (a)(8) waters, consists of all waters located
within the 100-year floodplain of any category (1) through (3)
``jurisdictional by rule'' water and all waters located within 4,000
feet of the high tide line or ordinary high water mark of any category
(1) through (5) ``jurisdictional by rule'' water. Id. The rule
established no distance limitation for the (a)(7) waters, id. at 37093,
and the distance-based limitations for the (a)(8) waters were adopted
without adequate notice in violation of the APA. See Texas v. EPA, No.
3:15-cv-162, 2019 WL 2272464, at *5 (S.D. Tex. May 28, 2019).\39\
---------------------------------------------------------------------------
\39\ The agencies also note that the distance limitations in the
2015 Rule were included without sufficient record support.
---------------------------------------------------------------------------
The 2015 Rule defined ``significant nexus'' to mean a water,
including wetlands, that either alone or in combination with other
similarly situated waters in the region, significantly affects the
chemical, physical, or biological integrity of a primary water. 80 FR
37106. Under the 2015 Rule, to determine whether a water, alone or in
combination with similarly situated waters across a watershed, had a
``significant nexus,'' the agencies considered nine functions such as
sediment trapping, runoff storage, provision of life cycle dependent
aquatic habitat, among others. Id. Under the rule, it was sufficient
for determining whether a water has a significant nexus if any single
function performed by the water, alone or together with similarly
situated
[[Page 56650]]
waters in the watershed of the nearest primary water, contributed
significantly to the chemical, physical, or biological integrity of the
nearest primary water. Id.
The agencies conclude that the 2015 Rule's categories of (a)(7) and
(a)(8) waters exceeded the agencies' CWA authority for several
independent reasons. As described in Section III.C.1.a, certain waters
that fall within the scope of category (a)(8) are beyond the limits of
federal authority. By establishing a jurisdictional category for (a)(8)
waters to which the 2015 Rule's case-specific significant nexus test
applied, the rule would have swept certain ``ponds that are not
adjacent to open water''--like those isolated ponds and mudflats at
issue in SWANCC--into the federal regulatory net despite the SWANCC
Court's conclusion that ``the text of the statute will not allow
this.'' 531 U.S. at 168. Moreover, like the agencies' interpretation of
(a)(6) ``adjacent'' waters in the 2015 Rule, the baseline for
determining if a water was subject to a case-specific significant nexus
analysis under the 2015 Rule's (a)(8) category was established, among
other means, according to specified distances keyed to the definition
of (a)(5) ``tributaries.'' The agencies established a distance up to
4,000 feet from the ordinary high water mark of even the most remote
and insubstantial ``tributary'' within which all waters and wetlands
would be subject to a case-specific significant nexus analysis based in
large part on the expanded aggregation theory discussed in Section
III.C.1.b.i.\40\
---------------------------------------------------------------------------
\40\ The 2015 Rule placed no distance limits on the scope of a
significant nexus inquiry for waters within the 100-year floodplain
of a primary water. See 80 FR 37088.
---------------------------------------------------------------------------
Further, while the 2008 Rapanos Guidance (at 1) limited the case-
specific significant nexus inquiry to (1) non-navigable tributaries
that are not relatively permanent, (2) wetlands adjacent to non-
navigable tributaries that are not relatively permanent, and (3)
wetlands adjacent to but that do not directly abut a relatively
permanent nonnavigable tributary, the 2015 Rule asserted jurisdiction
over such tributaries and adjacent wetlands categorically and then
expanded the scope of the case-specific significant nexus test to non-
adjacent waters and wetlands alone or in combination with ``similarly
situated'' waters and wetlands anywhere within the same single point of
entry watershed. In other words, the (a)(7) and (a)(8) categories were
designed to capture waters that fall outside the 2015 Rule's broad
``adjacent'' waters (a)(6) category. See 80 FR 37080. Given the
agencies' conclusion that the categorical assertion of jurisdiction
over features meeting the 2015 Rule's definitions of ``tributary'' and
``adjacent'' contravened the limits of federal jurisdiction reflected
in Justice Kennedy's opinion, it necessarily follows that the 2015
Rule's (a)(7) and (a)(8) categories--which apply to certain waters
located outside the scope of those jurisdictional-by-rule categories--
similarly exceeded the scope of the agencies' statutory authority. See
Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at *20 (S.D. Ga.
Aug. 21, 2019) (finding that the 2015 Rule's (a)(8) provision would
``extend federal jurisdiction beyond the limits allowed under the
CWA''). For example, because of the expansive significant nexus test in
the 2015 Rule coupled with the breadth of certain key concepts and
terms (e.g., ``tributaries,'' ``adjacent,'' and ``neighboring'')
relative to the prior regulatory regime, the agencies now conclude that
the 2015 Rule's (a)(7) and (a)(8) categories would have permitted
federal jurisdiction over waters and wetlands appearing ``little more
related to navigable-in-fact waters than were the isolated ponds held
to fall beyond the Act's scope in SWANCC.'' 547 U.S. at 781-82
(Kennedy, J., concurring).
Relying on the concurring opinion of Justice Kennedy,\41\ the 2015
Rule misapplied the significant nexus standard to subject similarly-
situated waters (including small streams, ephemeral ``tributaries,''
non-adjacent wetlands, and small lakes and ponds) across entire
watersheds that were not already jurisdictional categorically under
another provision of the 2015 Rule to federal purview. Indeed, taken
together, the enumeration of the nine functions relevant to the
``significant nexus'' analysis and the more expansive interpretation of
``similarly situated'' and ``in the region'' in the 2015 Rule meant
that the vast majority of water features in the United States would be
per se jurisdictional or could come within the jurisdictional purview
of the Federal government pursuant to the rule's (a)(7) and (a)(8)
provisions for case-specific waters.\42\ As discussed in Section
III.C.1.b.i, such a result is inconsistent with the limiting nature of
Justice Kennedy's significant nexus test.
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\41\ The agencies note that they requested comment on the
appropriate scope and application of Justice Kennedy's concurring
opinion as part of their proposed new definition of ``waters of the
United States,'' including whether it is the controlling opinion
from Rapanos, the application of the significant nexus standard to
tributaries in addition to adjacent wetlands, and related topics.
See 84 FR 4167, 4177. The agencies are evaluating comments submitted
in response to that request and need not take positions on those
questions to support or resolve the issues raised in this
rulemaking.
\42\ The agencies noted in 2015 ``that the vast majority of the
nation's water features are located within 4,000 feet of a covered
tributary, traditional navigable water, interstate water, or
territorial sea.'' 2015 Rule Economic Analysis at 11. As such, the
agencies' attempts to mitigate the expansive reach of (a)(8) waters
through this distance limitation was illusory.
---------------------------------------------------------------------------
Justice Kennedy also stated that ``[a]bsent more specific
regulations . . . the Corps must establish a significant nexus on a
case-by-case basis when it seeks to regulate wetlands based on
adjacency to nonnavigable tributaries. Given the potential overbreadth
of the Corps' regulations, this showing is necessary to avoid
unreasonable applications of the statute.'' Id. at 782 (emphasis
added). In the 2015 Rule, the agencies provided more specific
regulations for ``tributaries'' and ``adjacent'' waters and wetlands,
both of which were based upon their misinterpretation of Justice
Kennedy's significant nexus standard. But the agencies then applied
their overbroad interpretation of significant nexus to the evaluation
of (a)(7) and (a)(8) waters on case-specific basis. The agencies are
concerned that there is nothing in Justice Kennedy's concurring opinion
in Rapanos that indicates he envisioned a case-specific approach to
establish adjacency-based jurisdiction after more specific regulations
have been established that purported to establish the categorical
limits of adjacency. And while the 2015 Rule preamble properly
characterized Justice Kennedy's acknowledgment that ``the agencies
could establish more specific regulations or establish a significant
nexus on a case-by-case basis,'' 80 FR 37058 (emphasis added), the 2015
Rule nevertheless ``continue[d] to assess significant nexus on a case-
specific basis'' for (a)(7) and (a)(8) waters. Id.
The 2015 Rule also established different scopes of inquiry for
determining whether an (a)(7) or (a)(8) water has a significant nexus
to a primary water. ``For practical administrative purposes, the rule
[did] not require evaluation of all similarly situated waters under
paragraph (a)(7) or (a)(8) when concluding that those waters have a
significant nexus'' to a primary water. 80 FR at 37094. ``When a 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 unnecessarily
require time and resources to locate and analyze all
[[Page 56651]]
similarly situated waters in the entire point of entry watershed.'' Id.
In contrast, ``[a] conclusion that significant nexus is lacking may not
be based on consideration of a 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
downstream water.'' Id. (emphasis added). In other words, under the
2015 Rule, a significant nexus inquiry for (a)(7) and (a)(8) waters may
be inconclusive until all similarly situated waters across the entire
single point of entry watershed are analyzed and it is determined that
such features do not have a significant nexus, when considered in
combination, to the nearest downstream primary water. The agencies are
concerned that the potential requirement for an analysis of all broadly
defined ``similarly situated waters in the region'' until the agencies
can determine that a feature does not possess a significant nexus to a
primary water ``raise[s] troubling questions regarding the Government's
power to cast doubt on the full use and enjoyment of private property
throughout the Nation.'' Hawkes, 136 S. Ct. 1807, 1812, 1816-17
(Kennedy, J., concurring). As a result, the agencies are concerned that
the 2015 Rule potentially leaves ``people in the dark,'' Sessions v.
Dimaya, No. 15-1498, 2018 U.S. LEXIS 2497, at *39, 42-43 (S. Ct. Apr.
17, 2018) (Gorsuch, J., concurring in part and concurring in judgment),
about the jurisdictional status of individual isolated ponds and
wetlands within their property boundaries until every last similarly
situated feature within the watershed boundary of the nearest primary
water is analyzed by the Federal government. The agencies find that
these concerns provide further support for the agencies' decision to
repeal the 2015 Rule.
In summary, the agencies conclude that the significant nexus test
articulated in the 2015 Rule and the systemic problems associated with
its use to justify the definition of ``tributary'' (which formed the
baseline from which to extend the limits of ``adjacent'' waters and the
scope of case-specific significant nexus analyses) resulted in a
definition of ``waters of the United States'' that failed to respect
the limits of the ``significant nexus'' standard articulated in SWANCC
and Justice Kennedy's Rapanos concurrence. The agencies' conclusion is
also supported by reasoning that has been adopted by various district
courts reviewing requests for preliminary injunctions of the 2015 Rule
and ruling on the merits of the 2015 Rule. The U.S. District Court for
the District of North Dakota, for example, found that ``[t]he Rule . .
. likely fails to meet [Justice Kennedy's significant nexus] standard''
and ``allows EPA regulation of waters that do not bear any effect on
the `chemical, physical, and biological integrity' of any navigable-in-
fact water.'' North Dakota v. EPA, 127 F. Supp. 3d 1047, 1056 (D.N.D.
2015). And the U.S. District Court for the Southern District of Georgia
found that multiple provisions in the 2015 Rule were inconsistent with
Justice Kennedy's significant nexus standard, including the rule's
``tributary'' definition, which the court held extended federal CWA
jurisdiction ``well beyond what is allowed under Justice Kennedy's
interpretation of the CWA,'' and the rule's ``adjacent'' waters
provision, which the court found ``could include `remote' waters . . .
that have only a `speculative or insubstantial' effect on the quality
of navigable in fact waters.'' Georgia v. Wheeler, No. 2:15-cv-079,
2019 WL 3949922, at *14, 17 (S.D. Ga. Aug. 21, 2019) (quoting Rapanos,
547 U.S. at 778-81 (Kennedy, J., concurring)). Further, as discussed in
Section III.C.3, the agencies find that the 2015 Rule leads to similar
unreasonable applications of the CWA that SWANCC and Justice Kennedy
both sought to prevent. The agencies now conclude that the 2015 Rule
was flawed due to the systemic misapplication of the significant nexus
standard, and the agencies therefore repeal the 2015 Rule in its
entirety to ``avoid the significant constitutional and federalism
questions'' it raises. 531 U.S. at 174.
c. The 2015 Rule's Expansive Interpretation of the Significant Nexus
Standard Failed To Give the Word ``Navigable'' in the CWA Sufficient
Effect
By applying an expansive interpretation of the significant nexus
standard within the definitions and treatment of ``tributaries,''
``adjacent'' waters, and waters subject to a case-specific
``significant nexus'' test, the agencies now believe and conclude that
the 2015 Rule did not give the word ``navigable'' within the phrase
``navigable waters'' sufficient effect. The CWA grants the agencies
jurisdiction over ``navigable waters,'' 33 U.S.C. 1311(a), defined as
``the waters of the United States.'' Id. at 1362(7). ``Congress'
separate definitional use of the phrase `waters of the United States'
[does not] constitute[ ] a basis for reading the term `navigable
waters' out of the statute.'' SWANCC, 531 U.S. at 172. Indeed,
navigability was ``what Congress had in mind as its authority for
enacting the CWA.'' Id.
As described in Section III.B.1, Congress intended to assert
federal authority over more than just waters traditionally understood
as navigable but rooted that authority in ``its commerce power over
navigation.'' Id. at 168 n.3. Therefore, there must necessarily be a
limit to that authority and to what waters are subject to federal
jurisdiction. See, e.g., 547 U.S. at 779 (Kennedy, J., concurring)
(``[T]he word `navigable' in the Act must be given some effect.''); see
also id. at 734 (Scalia, J., plurality) (``As we noted in SWANCC, the
traditional term `navigable waters'--even though defined as `the waters
of the United States'--carries some of its original substance: `[I]t is
one thing to give a word limited effect and quite another to give it no
effect whatever.' 531 U.S., at 172.'').
The agencies find that in defining ``tributary,'' ``adjacent,''
``neighboring,'' and ``significant nexus'' broadly so as to sweep
within federal jurisdiction many ephemeral ``tributaries'' as defined
in the 2015 Rule, certain remote ditches, and certain isolated ponds
and wetlands that, like the isolated ponds and mudflats at issue in
SWANCC, ``bear[ ] no evident connection to navigable-in-fact waters,''
547 U.S. at 779 (Kennedy, J., concurring), the 2015 Rule did not give
sufficient effect to the term ``navigable'' in the CWA. See South
Carolina v. Catawba Indian Tribe, 476 U.S. 498, 510 n.22 (1986) (``It
is our duty to give effect, if possible, to every clause and word of a
statute[.]'' (quoting United States v. Menasche, 348 U.S. 528, 538-39
(1955)) (internal quotations omitted)). Many commenters expressed a
similar concern. Other commenters asserted that the 2015 Rule did give
sufficient effect to the term ``navigable.''
Justice Kennedy's concurring opinion in Rapanos, which the 2015
Rule sought to implement, recognized it is a ``central requirement'' of
the Act that ``the word `navigable' in `navigable waters' be given some
importance.'' 547 U.S at 778 (Kennedy, J., concurring). If the word
``navigable'' has any meaning, the CWA cannot be interpreted to
``permit federal regulation whenever wetlands lie along a ditch or
drain, however remote and insubstantial, that eventually may flow into
traditional navigable waters.'' Id. at 778-79 (Kennedy, J.,
concurring). Yet the agencies find that the 2015 Rule did just that in
certain cases, including sweeping the SWANCC ponds and similarly-
situated waters within federal purview. See Section III.C.1.a, supra.
The agencies conclude, therefore, that the 2015 Rule did not give
sufficient effect to the word ``navigable'' in the
[[Page 56652]]
phrase ``navigable waters'' in a manner consistent with SWANCC, Justice
Kennedy's concurring opinion in Rapanos, or the text of the CWA.
d. Because the 2015 Rule Misinterpreted the Significant Nexus Standard,
it Misapplied the Findings of the Connectivity Report To Assert
Jurisdiction Over Waters Beyond the Limits of Federal Authority
The 2015 Rule relied on a scientific literature review--the
Connectivity Report--to support exerting federal jurisdiction over
certain waters. See 80 FR 37065 (``[T]he agencies interpret the scope
of `waters of the United States' protected under the CWA based on the
information and conclusions in the [Connectivity] Report.''). The
report notes that connectivity ``occur[s] on a continuum or gradient
from highly connected to highly isolated,'' and ``[t]hese variations in
the degree of connectivity are a critical consideration to the
ecological integrity and sustainability of downstream waters.'' Id. at
37057. The conclusions in this report, while informative, cannot be
dispositive in interpreting the statutory reach of ``waters of the
United States.'' The definition of ``waters of the United States'' must
be grounded in a legal analysis of the limits on CWA jurisdiction that
Congress intended by use of the term ``navigable waters,'' and a
faithful understanding and application of the limits expressed in
Supreme Court opinions interpreting that term.
In its review of a draft version of the Connectivity Report, EPA's
Science Advisory Board (``SAB'') noted, ``[s]patial proximity is one
important determinant of the magnitude, frequency and duration of
connections between wetlands and streams that will ultimately influence
the fluxes of water, materials and biota between wetlands and
downstream waters.'' \43\ ``Wetlands that are situated alongside rivers
and their tributaries are likely to be connected to those waters
through the exchange of water, biota and chemicals. As the distance
between a wetland and a flowing water system increases, these
connections become less obvious.'' \44\ The Connectivity Report also
recognizes that ``areas that are closer to rivers and streams have a
higher probability of being connected than areas farther away.''
Connectivity Report at ES-4.
---------------------------------------------------------------------------
\43\ Science Advisory Board, U.S. EPA. Review of the EPA Water
Body Connectivity Report at 60 (Oct. 17, 2014).
\44\ Id. at 55.
---------------------------------------------------------------------------
Yet, as the SAB observed, ``[t]he Report is a science, not policy,
document that was written to summarize the current understanding of
connectivity or isolation of streams and wetlands relative to large
water bodies such as rivers, lakes, estuaries, and oceans.'' \45\ ``The
SAB also recommended that the agencies clarify in the preamble to the
final rule that `significant nexus' is a legal term, not a scientific
one.'' 80 FR 37065. And in issuing the 2015 Rule, the agencies stated,
``the science does not provide a precise point along the continuum at
which waters provide only speculative or insubstantial functions to
downstream waters.'' Id. at 37090. Although the agencies acknowledged
that science cannot dictate where to draw the line of federal
jurisdiction, see, e.g., 80 FR 37060, notwithstanding that qualifier,
the agencies relied on the Connectivity Report extensively in
establishing the 2015 Rule's definition of ``waters of the United
States.'' See id. at 37057 (``The [Connectivity] Report provides much
of the technical basis for [the] rule.'').
---------------------------------------------------------------------------
\45\ Id. at 2.
---------------------------------------------------------------------------
In promulgating the 2015 Rule, the agencies stated that the science
documented in the Connectivity Report showed that Justice Kennedy's
significant nexus standard was satisfied by the rule's expansive
definition of ``water of the United States.'' See, e.g., 80 FR 37058
(`` `[T]ributaries' and `adjacent' waters, are jurisdictional by rule,
as defined, because the science confirms that they have a significant
nexus to traditional navigable waters, interstate waters, or
territorial seas.'' (emphasis added)). Yet, as described previously,
the definition failed to properly implement the fundamental limits of
Justice Kennedy's test. In doing so the agencies focused too heavily on
the nexus component of the significant nexus test to define the scope
of CWA jurisdiction without appropriate regard to the significance of
that nexus. While this approach and the Connectivity Report correctly
recognize that upstream waters are connected to downstream waters, the
agencies now find that the approach failed to acknowledge that
``[a]bsent some measure of the significance of the connection for
downstream water quality, this standard [is] too uncertain'' and ``mere
hydrologic connection should not suffice in all cases; the connection
may be too insubstantial for the hydrologic linkage to establish the
required nexus with navigable waters as traditionally understood.''
Rapanos, 547 U.S. at 784-85 (Kennedy, J., concurring). By adopting an
aggregated watershed-scale approach to CWA jurisdiction, as further
described in Section III.C.1.b.i, the 2015 Rule interpreted too broadly
a key element of Justice Kennedy's significant nexus standard and
greatly increased the scope of federal regulation.
A number of commenters expressed the view that the agencies relied
too heavily on scientific principles in interpreting ``significant
nexus'' in the 2015 Rule and did not adequately consider the legal
constraints on federal jurisdiction inherent in the CWA's statutory
text and Supreme Court precedent. Commenters noted that the
Connectivity Report did not provide the agencies with any ``bright
lines'' as to where federal CWA jurisdiction begins and ends and that
the report did not provide any guidance on how to apply Justice
Kennedy's significant nexus test to a waterbody. Other commenters
suggested that the agencies appropriately relied on the Connectivity
Report and the SAB's review of its findings in developing the 2015
Rule's significant nexus standard. Several commenters, in fact, argued
that the science underlying the Connectivity Report should drive the
limits of federal jurisdiction under the CWA.
The agencies conclude that in establishing the limits of federal
regulatory authority under the CWA in the 2015 Rule, the agencies
placed too much emphasis on the information and conclusions of the
Connectivity Report at the expense of the limits on federal
jurisdiction reflected in the statutory text and decisions of the
Supreme Court. According to the 2015 Rule, the Connectivity Report and
the SAB review confirmed that:
Tributary streams, including perennial, intermittent, and
ephemeral streams, are chemically, physically, and biologically
connected to downstream waters, and influence the integrity of
downstream waters. Wetlands and open waters in floodplains and
riparian areas are chemically, physically, and biologically
connected with downstream waters and influence the ecological
integrity of such waters. Non-floodplain wetlands and open waters
provide many functions that benefit downstream water quality and
ecological integrity, but their effects on downstream waters are
difficult to assess based solely on the available science.
80 FR 37057. Thus, despite Justice Kennedy's description of the extent
of ``[t]he deference owed the Corps' interpretation of the statute,''
547 U.S. at 778-79 (Kennedy, J., concurring), the agencies concluded
that the Connectivity Report supported a ``tributary'' definition that
included certain ``remote and insubstantial'' channels ``that
eventually may flow into traditional navigable waters,'' id. at 778, an
``adjacent'' waters definition that
[[Page 56653]]
included all ``wetlands [and waters that] lie alongside'' such
channels, id., and a case-specific significant nexus test that applied
to non-adjacent waters and wetlands, either alone or in combination,
within 4,000 feet of those channels. These aspects of the 2015 Rule, at
a minimum, created substantial tension with Justice Kennedy's opinion
in Rapanos.
Of particular concern to the agencies today is the 2015 Rule's
broad application of Justice Kennedy's phrase ``similarly situated
lands in the region.'' As discussed in Section III.C.1.b.i, the
agencies took an expansive reading of this phrase, in part based on
``one of the main conclusions of the [Connectivity Report] . . . that
the incremental contributions of 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.'' 80 FR 37066. Yet, Justice Kennedy
observed in Rapanos that what constitutes a ``significant nexus'' is
not a solely scientific question and that it cannot be determined by
environmental effects alone. See, e.g., 547 U.S. at 777-78 (noting that
although ``[s]cientific evidence indicates that wetlands play a
critical role in controlling and filtering runoff . . . environmental
concerns provide no reason to disregard limits in the statutory text''
(citations omitted) (emphasis added)); see also Rodriguez v. United
States, 480 U.S. 522 (1987) (``[N]o legislation pursues its purposes at
all costs.''). The 2015 Rule's treatment of the phrase ``similarly
situated'' to mean ``waters that function alike and are sufficiently
close to function together in affecting downstream waters'' and ``in
the region'' to mean ``the watershed that drains to the nearest''
primary water together expanded the potential jurisdictional purview of
the Federal government to include the vast majority of the nation's
waters and contravened the limiting nature of Justice Kennedy's
description of the significant nexus standard. As a consequence, the
2015 Rule's aggregation method for purposes of its significant nexus
inquiry ``raise[d] significant constitutional questions'' similar to
the Corps' assertion of jurisdiction over the abandoned ponds at issue
in SWANCC. See Section III.C.3, infra (addressing these constitutional
questions in further detail).
The agencies also find that the 2015 Rule placed insufficient
weight on the direction of the Court in Riverside Bayview regarding the
limits of federal jurisdiction and instead relied heavily on the
Connectivity Report to support its assertion of jurisdiction.\46\ The
2015 Rule stated, ``it is the agencies' task to determine where along
[the] gradient [of connectivity] to draw lines of jurisdiction under
the CWA,'' 80 FR 37057, yet in establishing those lines, the agencies
did not appropriately consider the Riverside Bayview Court's discussion
regarding the limits of jurisdiction lying within the ``continuum'' or
``transition'' ``between open waters and dry land.'' 474 U.S. at 132.
Instead, the agencies appeared to follow the advice of the SAB \47\ and
issued a definition of ``waters of the United States'' that went far
beyond that continuum to reach physically disconnected waters and
wetlands under categories (a)(7) and (a)(8).
---------------------------------------------------------------------------
\46\ The agencies also note that the 2015 Rule was remanded back
to the agencies because the final Connectivity Report, which served
as the scientific foundation for the rule, was not made available to
the public for review and comment. See Texas v. EPA, No. 3:15-cv-
162, 2019 WL 2272464 (S.D. Tex. May 28, 2019).
\47\ See, e.g., 80 FR 37064, citing SAB Consideration of the
Adequacy of the Scientific and Technical Basis of the EPA's Proposed
Rule titled ``Definition of Waters of the United States under the
Clean Water Act,'' U.S. EPA (2014) (In promulgating the 2015 Rule,
the agencies noted that the SAB ``expressed support for the proposed
rule's . . . inclusion of `other waters' on a case-specific basis''
and that the SAB ``found it `appropriate to define `other waters' as
waters of the United States on a case-by-case basis, either alone or
in combination with similarly situated waters in the same region.'
'').
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2. The 2015 Rule Did Not Adequately Consider and Accord Due Weight to
Clean Water Act Section 101(b)
When Congress passed the CWA in 1972, it established the objective
``to restore and maintain the chemical, physical, and biological
integrity of the Nation's waters.'' 33 U.S.C. 1251(a). In order to meet
that objective, Congress provided a major role for the States in
implementing the CWA and recognized the importance of preserving the
States' independent authority and responsibility in this area. See 33
U.S.C 1251(b) and 1370. As the Supreme Court has explained, 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.' '' Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992) (emphasis
added).
The CWA balances the traditional power of States to regulate land
and water resources within their borders with the need for federal
water quality regulation to protect the ``navigable waters'' defined as
``the waters of the United States, including the territorial seas.'' 33
U.S.C. 1362(7). Section 101(b) of the Act establishes ``the policy of
the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution'' and ``to plan the development and use . . . of land and
water resources . . . . '' Id. at 1251(b). Congress also declared as a
national policy that States manage the major construction grant program
and implement the core permitting programs authorized by the statute,
among other responsibilities. Id. The policy statement of 101(b) ``was
included in the Act as enacted in 1972 . . . prior to the addition of
the optional state administration program in the 1977 amendments. Thus,
the policy plainly referred to something beyond the subsequently added
state administration program of 33 U.S.C. 1344(g)-(l).'' 547 U.S. at
737 (Scalia, J., plurality) (citations omitted). Congress further added
that ``[e]xcept as expressly provided in this [Act], nothing in this
Act shall . . . be construed as impairing or in any manner affecting
any right or jurisdiction of the States with respect to the waters
(including boundary waters) of such States.'' 33 U.S.C. 1370. The court
in Georgia v. Wheeler also recognized the important balance between
States and the Federal government that Congress prescribed in the CWA,
explaining that ``[w]hile the CWA allows the federal government to
regulate certain waters for the purposes of protecting the chemical,
physical, and biological integrity of the nation's waters, Congress
also included within that statute a provision which states that the
policy of Congress is 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.' '' Georgia
v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at *22 (S.D. Ga. Aug. 21,
2019) (internal citation omitted).
The agencies must develop regulatory programs designed to ensure
that the full statute is implemented as Congress intended. See, e.g.,
Hibbs v. Winn, 542 U.S. 88, 101 (2004) (``A statute should be construed
so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant''). This includes
pursuing the overall ``objective'' of the CWA to ``restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters,'' 33 U.S.C. 1251(a), while implementing the specific ``policy''
directives from Congress to preserve state authority over their own
[[Page 56654]]
land and water resources. See id. at 1251(b); see also Webster's II,
New Riverside University Dictionary (1994) (defining ``policy'' as a
``plan or course of action, as of a government[,] designed to influence
and determine decisions and actions;'' an ``objective'' is ``something
worked toward or aspired to: Goal''). The agencies therefore must
recognize a distinction between the specific word choices of Congress,
including the need to develop regulatory programs that aim to
accomplish the objective of the Act while implementing the specific
policy directives of Congress. See Section III.B.1 for additional
discussion of this language in the CWA.
In promulgating the 2015 Rule, the agencies conclude that they did
not adequately consider and accord due weight to the policy directive
of the Congress in section 101(b) of the Act. The 2015 Rule
acknowledged the language contained in section 101(b) and the vital
role States and Tribes play in the implementation and enforcement of
the Act, 80 FR 37059, but it did not appropriately recognize the
important policy of 101(b) to preserve the traditional power of States
to regulate land and water resources within their borders or the
utility and independent significance of the Act's non-regulatory
programs.\48\ In fact, the agencies failed to adequately acknowledge
the meaning of perhaps the most important verb in 101(b), the direction
to ``preserve'' existing State authority. That is, Congress recognized
existing State authorities at the time it enacted the 1972 CWA
amendments and directed the agencies to preserve and protect those
authorities, which includes the authority to regulate certain waters as
the States deem appropriate, without mandates from the Federal
government. It is true that the agencies noted that ``States and
federally-recognized tribes, consistent with the CWA, retain full
authority to implement their own programs to more broadly and more
fully protect the waters in their jurisdiction,'' id. at 37060, but the
agencies did not include a discussion in the 2015 Rule preamble of the
meaning and importance of section 101(b) in guiding the choices the
agencies make in setting the outer bounds of CWA jurisdiction. Instead
of considering this aspect of the 101(b) congressional policy
directive, the agencies reduced the number of waters subject solely to
State jurisdiction by broadening their interpretation of ``waters of
the United States.'' Several commenters offered interpretations of
section 101(b) of the Act similar to the interpretation that the
agencies offered in the 2015 Rule and asserted that the import of
section 101(b) is Congress' policy that States implement the Act and
have authority to impose conditions that are more stringent than the
conditions the agencies impose under the Act. As described above,
however, the policy directive from Congress in section 101(b) is not so
limited.
---------------------------------------------------------------------------
\48\ The majority of the agencies' discussion of section 101(b)
in the preamble to the final 2015 Rule focused on the ``particular
importance'' of States and Tribes administering the CWA permitting
programs. 80 FR 37059.
---------------------------------------------------------------------------
The agencies now conclude that, at a minimum, the 2015 Rule's case-
specific significant nexus provisions stretched the bounds of federal
jurisdiction to cover certain waters that more appropriately reside in
the sole jurisdiction of States. In describing those provisions, the
agencies stated that ``the 100-year floodplain and 4,000 foot
boundaries in the rule will sufficiently capture for analysis those
waters that are important to protect to achieve the goals of the Clean
Water Act.'' 80 FR 37090; see also id. at 37091 (``[P]roviding for
case-specific significant nexus analysis for waters that are not
adjacent but within the 4,000 foot distance limit, as well as those
within the 100-year floodplain of a traditional navigable water,
interstate water, or the territorial seas . . . will ensure protection
of the important waters whose protection will advance the goals of the
Clean Water Act . . . .'') (emphasis added). Such statements--and
indeed naming the 2015 Rule the ``Clean Water Rule''--imply that waters
that are not ``waters of the United States'' (i.e., the subset of the
``Nation's waters'' subject solely to State and tribal authority) are
not important to protect to meet the objective of the Act. In other
words, when they finalized the 2015 Rule, the agencies believed the
rule's definition of ``waters of the United States'' covered all waters
necessary for regulation under the CWA in order to meet the objective
of the Act in section 101(a), and in turn neglected to incorporate the
policy of the Congress in section 101(b). And as the plurality warned
in Rapanos, ``the expansive theory [of jurisdiction] advanced by the
Corps, rather than `preserv[ing] the primary rights and
responsibilities of the States,' would have brought virtually all
`plan[ning of] the development and use . . . of land and water
resources' by the States under federal control.'' Rapanos, 547 U.S. at
737 (Scalia, J., plurality). The 2015 Rule generated the same result,
and the agencies now conclude that its definition was ``therefore an
unlikely reading of the phrase `the waters of the United States.''' Id.
The agencies' conclusion is consistent with the court's holding in
Georgia v. Wheeler that the 2015 Rule inappropriately encroached on
traditional state power. The court in that case found that the 2015
Rule increased the scope of federal jurisdiction ``to a significant
degree'' and that this ``significant increase in jurisdiction takes
land and water falling traditionally under the states' authority and
transfers them to federal authority.'' Georgia v. Wheeler, No. 2:15-cv-
079, 2019 WL 3949922, at *23 (S.D. Ga. Aug. 21, 2019) (footnote
omitted).
Several commenters criticized the agencies for not articulating the
precise limits that the agencies understand section 101(b) to impose.
The agencies are not concluding in this rulemaking that section 101(b)
of the Act establishes a precise line between waters that are subject
to Federal and State regulation, on the one hand, and subject to State
regulation only, on the other. Instead, they find that the 2015 Rule
failed to adequately consider and accord due weight to the policy
directive in section 101(b) and, as a result, asserted jurisdiction
over certain waters that are more appropriately left solely in the
jurisdiction of States. For example, as described in Section
III.C.1.b.iii, the 2015 Rule's definition of ``adjacent'' established
per se coverage of all waters and wetlands within the 100-year
floodplain and within 1,500 feet of the ordinary high water mark of a
primary water, jurisdictional impoundment, or tributary. As a result,
the rule extended federal jurisdiction to certain isolated ponds,
wetlands, and ditches categorically simply because they might have a
hydrologic connection with such waters only during an infrequent storm
event. Further, the agencies find that the policy directive from the
Congress in section 101(b) indicates that certain types of isolated
waters are more appropriately left solely under the jurisdiction of
States, including those waters the Supreme Court found beyond the
statute's reach in SWANCC and Rapanos. Leaving these types of waters in
the sole jurisdiction of States will give due regard to the CWA's
numerous non-regulatory programs designed to protect and restore the
Nation's waters, not just its navigable waters, the utility of which
would be diminished if the ``vast majority'' \49\ of the Nation's
waters are subject to federal purview under the 2015 Rule.
---------------------------------------------------------------------------
\49\ 2015 Rule Economic Analysis at 11.
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Finally, the 2015 Rule upset the Federal-State balance of the Act
by
[[Page 56655]]
``mistaken[ly] . . . assum[ing] . . . that whatever might appear to
further the statute's primary objective must be the law.'' Henson v.
Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017); see also
Rapanos, 547 U.S. at 755-56 (Scalia, J., plurality) (``[C]lean water is
not the only purpose of the statute. So is the preservation of primary
State responsibility for ordinary land-use decisions. 33 U.S.C.
1251(b).'') (original emphasis). Several commenters emphasized the
importance of the objective in section 101(a) to ``restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters'' and asserted that the policy directive in section 101(b) does
not supersede that objective. The agencies recognize the importance of
the objective in section 101(a), but they also must recognize the
specific policy directives from Congress in section 101(b).\50\ As the
Supreme Court has explained, ``an administrative agency's power to
regulate in the public interest must always be grounded in a valid
grant of authority from Congress,'' and ``in [its] anxiety to
effectuate the congressional purpose,'' an agency ``must take care not
to extend the scope of the statute beyond the point where Congress
indicated it would stop.'' See FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 161 (2000) (citations omitted).
---------------------------------------------------------------------------
\50\ See, e.g., Transcript of Oral Argument at 58, Rapanos v.
United States and Carabell v. United States, 547 U.S. 715 (2006)
(Nos. 04-1034, 04-1384). (Quoting Justice Kennedy, ``[T]he Congress
in 1972 . . . said it's a statement of policy to reserve to the
States the power and the responsibility to plan land use and water
resources. And under your definition, I just see that we're giving
no scope at all to that clear statement of the congressional
policy.'').
---------------------------------------------------------------------------
The agencies conclude that the 2015 Rule did not fully recognize
the ``partnership between the States and the Federal Government'' in
meeting the ``shared objective'' of the Act. Arkansas v. Oklahoma, 503
U.S. 91, 101 (1992); see also Motor Vehicle Mfrs. Ass'n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (``Normally, an agency rule
would be arbitrary and capricious if the agency has . . . entirely
failed to consider an important aspect of the problem[.]''). As
discussed in more detail below, by over-emphasizing the importance of
CWA section 101(a) while not adequately considering and according due
weight to section 101(b), the agencies extended federal jurisdiction
over waters that ``raise[d] significant constitutional questions,'' 531
U.S. at 173, and ``intru[ded] into traditional state authority''
without ``a `clear and manifest' statement from Congress.'' 547 U.S. at
738 (Scalia, J., plurality) (quoting BFP v. Resolution Trust
Corporation, 511 U.S. 531, 544 (1994)).
3. In Repealing the 2015 Rule, the Agencies Seek To Avoid
Constitutional Questions Relating to the Scope of CWA Authority
The agencies now find that the 2015 Rule raised significant
questions of Commerce Clause authority and encroached on traditional
State land-use regulation without a clear statement from Congress. As
explained in Section III.B.2, the Supreme Court has stated 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.'' SWANCC, 531 U.S. at 172-73. The Court
has further stated that this is particularly true ``where the
administrative interpretation alters the federal-state framework by
permitting federal encroachment upon a traditional state power.'' Id.
at 173; see also Atascadero State Hospital v. Scanlon, 473 U.S. 234,
242-43 (1985) (``If Congress intends to alter the `usual constitutional
balance between the States and the Federal Government,' it must make
its intention to do so `unmistakably clear in the language of the
statute[.]' ''); Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991)
(``the plain statement rule . . . acknowledg[es] that the States retain
substantial sovereign powers under our constitutional scheme, powers
with which Congress does not readily interfere'').
Congress relied on the broad authority of the Commerce Clause when
it enacted the CWA, but it limited the exercise of that authority to
its power over navigation. SWANCC, 531 U.S. at 168 n.3. In doing so,
the Supreme Court has explained that Congress specifically sought to
avoid ``federal encroachment upon a traditional state power.'' Id. at
172. The Court in SWANCC found that ``[r]ather than expressing a desire
to readjust the federal-state balance in this manner, Congress chose
[in the CWA] to `recognize, preserve, and protect the primary
responsibilities and rights of States . . . to plan the development and
use . . . of land and water resources . . .'' Id. at 174 (quoting 33
U.S.C. 1251(b)). The Court found no clear statement from Congress that
it had intended to permit federal encroachment on traditional State
power and construed the CWA to avoid the significant constitutional
questions related to the scope of federal authority authorized therein.
Id. Similarly, the plurality in Rapanos stated that ``[w]e ordinarily
expect a `clear and manifest' statement from Congress to authorize an
unprecedented intrusion into traditional State authority. The phrase
`the waters of the United States' hardly qualifies.'' Rapanos, 547 U.S.
at 737-38 (Scalia, J., plurality) (citations omitted).
In SWANCC, the Court rejected the argument that the use of
nonnavigable, isolated, intrastate waters by migratory birds fell
within the power of Congress to regulate activities that in the
aggregate have a substantial effect on interstate commerce, or that the
targeted use of the ponds at issue as a municipal landfill was
commercial in nature. 531 U.S. at 173. Such arguments, the Court noted,
``raise[d] significant constitutional questions,'' id., and ``would
result in a significant impingement of the States' traditional and
primary power over land and water use.'' Id. at 174. Similarly, in
Rapanos, the plurality applied the clear statement rule when it
rejected the Corps' attempt to extend CWA jurisdiction to the waters at
issue in that case. 547 U.S. at 737-38 (Scalia, J., plurality). The
plurality concluded that any attempt by the Federal government to
regulate such water would not only be ``an unprecedented intrusion into
traditional state authority,'' but would also ``stretch[ ] the outer
limits of Congress' commerce power and raise[ ] difficult questions
about the ultimate scope of that power.'' Id. at 738.
As described in Section III.C.1, and as several commenters noted,
the 2015 Rule extended federal jurisdiction to waters similar to those
at issue in SWANCC. As a result, the agencies conclude that, like the
application of the federal rule giving rise to the SWANCC decision, the
2015 Rule pressed the outer bounds of Congress' Commerce Clause
authority and encroached on traditional State rights without a clear
statement from Congress. Under the 2015 Rule, certain nonnavigable,
isolated, intrastate waters like those at issue in SWANCC would be
deemed federally jurisdictional as ``adjacent'' waters or other waters
found on a case-specific basis to have a ``significant nexus'' with
primary waters. The agencies' expansive interpretation of Justice
Kennedy's significant nexus standard, and in particular the agencies'
broad interpretation of the phrase ``similarly situated lands in the
region,'' resulted in a definition of ``waters of the United States''
that included certain isolated ponds and wetlands nearly a mile from
the nearest ephemeral ``tributary'' or that connect only once in a
century to waters more traditionally understood as navigable, and
thereby pressed the boundaries of federal jurisdiction.
[[Page 56656]]
The 2015 Rule reached so far into the landscape that, as commenters
noted, it is difficult for private property owners to know whether
their lands are subject to federal jurisdiction. This is particularly
evident in the agencies' discussion of the (a)(7) and (a)(8)
categories. For example, the agencies noted in 2015 that it is possible
to assert federal jurisdiction over a single wetland feature if the
agencies determine that a subset of similarly situated waters in the
watershed have, in combination, a significant nexus to the primary
waters. But the agencies expressly rejected the ability to determine
that a single wetland feature is not subject to jurisdiction unless and
until all similarly situated waters in the watershed of the nearest
primary watershed are evaluated. See 80 FR 37094-95 (``A conclusion
that significant nexus is lacking may not be based on consideration of
a 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 downstream waters.''). Effectively,
under the 2015 Rule, a single landowner with an isolated wetland
located within a large watershed could not receive a negative approved
jurisdictional determination unless the Federal government is satisfied
that all ``similarly situated'' wetlands within that watershed do not
significantly affect the integrity of the downstream primary water.
This expansive and uncertain cloud of potential federal regulation
over all or potentially all water features within an entire watershed
raises the very concerns that the constitutional avoidance doctrine and
clear statement rule are designed to address. As Justice Kennedy
observed in 2016, ``the reach and systemic consequences of Clean Water
Act jurisdiction remain a cause for concern'' and ``continues to raise
troubling questions regarding the Government's power to cast doubt on
the full use and enjoyment of private property throughout the Nation.''
Hawkes, 136 S. Ct. at 1816-17 (Kennedy, J., concurring) (also
describing the Act's reach as ``ominous''). The agencies conclude that
the 2015 Rule amplified those concerns by misapplying the significant
nexus standard established in SWANCC and further described by Justice
Kennedy in Rapanos. Just as Justice Kennedy wrote in summary of SWANCC,
the 2015 Rule likewise ``would raise significant questions of Commerce
Clause authority and encroach on traditional state land-use
regulation,'' Rapanos, 547 U.S. at 776 (Kennedy, J., concurring), while
generating ``problematic applications of the statute.'' Id. at 783. The
agencies' conclusion is consistent with the court's holding in Georgia
v. Wheeler. There, the court found that ``like the majority in SWANCC
and the plurality in Rapanos concluded, the [2015] Rule's vast
expansion of jurisdiction over waters and land traditionally within the
states' regulatory authority cannot stand absent a clear statement from
Congress in the CWA. Since no such statement has been made, the [2015
Rule] is unlawful under the CWA.'' Georgia v. Wheeler, No. 2:15-cv-079,
2019 WL 3949922, at *23 (S.D. Ga. Aug. 21, 2019). To avoid questionable
applications of the Act and a ``theory of jurisdiction that presses the
envelope of constitutional validity,'' 547 U.S. at 738 (Scalia, J.,
plurality), the agencies repeal the 2015 Rule in its entirety.
4. The Distance-Based Limitations Were Not a Logical Outgrowth of the
Proposed Rule and Were Not Supported by an Adequate Record
The agencies inserted the distance limitations into the final 2015
Rule for the stated purpose of increasing CWA program predictability
and consistency and reducing the instances in which permitting
authorities would need to make jurisdictional determinations on a case-
specific basis. 80 FR 37054. These distance limitations therefore were
important in achieving the stated purposes of the rulemaking and were
employed in two specific ways. First, the 2015 Rule defined
``neighboring'' to encompass all waters located within 100 feet of the
ordinary high water mark of a category (a)(1) through (a)(5)
``jurisdictional by rule'' water; all waters located within the 100-
year floodplain of a category (a)(1) through (a)(5) ``jurisdictional by
rule'' water and not more than 1,500 feet from the ordinary high water
mark of such water; all waters located within 1,500 feet of the high
tide line of a category (a)(1) through (a)(3) ``jurisdictional by
rule'' water; and all waters within 1,500 feet of the ordinary high
water mark of the Great Lakes. 80 FR 37105. The agencies' proposed rule
did not include these distance limitations in the definition of
``adjacent'' or ``neighboring.'' See 79 FR 22263. By defining
``neighboring'' within (a)(6) ``adjacent'' waters in the final rule to
include these distance limitations, however, the 2015 Rule
categorically defined waters within large swaths of land within the
distance limits as jurisdictional. Second, the 2015 Rule applied
distance limitations when identifying certain waters that would be
subject to a case-specific analysis to determine if they had a
``significant nexus'' to a water that is jurisdictional. 80 FR 37104-
05. Waters in section (a)(8) of the 2015 Rule were subject to a case-
by-case jurisdictional determination if they are located within the
100-year floodplain of any category (a)(1) through (a)(3)
``jurisdictional by rule'' water or within 4,000 feet of the high tide
line or ordinary high water mark of any category (a)(1) through (a)(5)
``jurisdictional by rule'' water. Id. These quantitative measures did
not appear in the proposed rule nor did they have adequate record
support.
In the SNPRM, the agencies requested public comment regarding the
distance-based limitations in the 2015 Rule. 83 FR 32241. The agencies
``solicit[ed] comment on whether these distance-based limitations
mitigated or affected the agencies' change in interpretation of the
similarly situated waters in the 2015 Rule.'' Id. The SNPRM also noted
``the concerns raised by some commenters and the federal courts,'' and
that ``the agencies have reviewed data previously relied upon to
conclude that the 2015 Rule would have no or `marginal at most' impacts
on jurisdictional determinations.'' Id. at 32243. The agencies thus
specifically ``solicit[ed] comment on whether the agencies
appropriately characterized or estimated the potential scope of CWA
jurisdiction that could change under the 2015 Rule, including whether
the documents supporting the 2015 Rule appropriately considered the
data relevant to and were clear in that assessment.'' Id. Furthermore,
the agencies sought comment on ``any other issues that may be relevant
to the agencies' consideration of whether to repeal the 2015 Rule, such
as whether any potential procedural deficiencies limited effective
public participation in the development of the 2015 Rule.'' Id. at
32249.
The agencies received a number of comments in response to the NPRM
and SNPRM regarding the distance-based limitations in the 2015 Rule.
While some commenters suggested that the 2015 Rule's distance-based
limitations were adequately supported and represented a permissible
exercise of agency experience and expertise, other commenters asserted
that the distance-based limitations were arbitrary and lacked support
in the administrative record for the 2015 Rule. Multiple commenters
also expressed concern that the public did not have an opportunity to
comment on the distance limitations used in the 2015 Rule and argued
that those specific measures were not a logical outgrowth of the
proposal. Other commenters disagreed that the 2015
[[Page 56657]]
Rule was not a logical outgrowth of the proposal and suggested that the
agencies had provided adequate notice of the use of distance
limitations in the final rule.
After the public comment period on the SNPRM closed, the U.S.
District Court for the Southern District of Texas remanded the 2015
Rule to the agencies for failing to comply with the APA, and the U.S.
District Court for the Southern District of Georgia remanded the 2015
Rule to the agencies after identifying substantive and procedural
errors with respect to numerous provisions, including the rule's
distance limitations. In response to these remands, this final rule
addresses many of the errors identified by those courts as well as the
concerns raised by some commenters regarding the distance-based
limitations used in the 2015 Rule.
a. The Distance-Based Limitations Were Not a Logical Outgrowth of the
Proposed Rule
The agencies are aware that litigants challenging the 2015 Rule
alleged various APA deficiencies, including allegations that the
distance-based limitations were inserted into the final rule without
adequate notice and that they were not a logical outgrowth of the
proposal. The agencies recognize that the U.S. District Court for the
Southern District of Texas and the U.S. District Court for the Southern
District of Georgia held that the distance-based limitations in the
final rule were not a logical outgrowth of the proposal in violation of
the APA's public notice and comment requirements. See Texas v. EPA, No.
15-cv-162, 2019 WL 2272464 (S.D. Tex. May 28, 2019); Georgia v.
Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at *23 (S.D. Ga. Aug. 21,
2019). The Southern District of Texas found this error ``significant''
because the specific distance-based limitations ``alter[ed] the
jurisdictional scope of the Act.'' Texas, 2019 WL 2272464, at *5. The
agencies recognize that the Federal government, in prior briefing in
Texas, Georgia, and other cases, defended the procedural steps the
agencies took to develop and support the 2015 Rule. Having considered
all of the public comments and relevant litigation positions, and the
decisions of the Southern District of Texas and the Southern District
of Georgia on related arguments, the agencies now agree with the
reasoning of the Southern District of Texas and the Southern District
of Georgia and conclude that the proposal for the 2015 Rule did not
provide adequate notice of the specific distance-based limitations that
appeared for the first time in the final rule. The agencies should have
sought public comment on the distance-based limitations before
including them in the final rule.
b. The Distance-Based Limitations Were Not Supported by an Adequate
Record
The agencies are aware that litigants challenging the 2015 Rule
alleged additional APA deficiencies, such as the lack of record support
for the distance-based limitations inserted into the final rule without
adequate notice. The agencies also recognize that the U.S. District
Court for the Southern District of Georgia held that several provisions
in the 2015 Rule, including certain distance-based limitations, were
arbitrary and capricious in violation of the APA. Georgia v. Wheeler,
No. 2:15-cv-079, 2019 WL 3949922, at *29 (S.D. Ga. Aug. 21, 2019).
Several commenters on the proposed repeal of the 2015 Rule raised
similar concerns, arguing that the 2015 Rule was arbitrary and
capricious because of the lack of record support for those limitations.
Having considered the public comments and relevant litigation
positions, the decisions of the Southern District of Texas and Southern
District of Georgia, and other decisions staying or enjoining the 2015
Rule, the agencies now conclude that the record for the 2015 Rule did
not contain sufficient record support for the distance-based
limitations that appeared for the first time in the final rule.
i. The 100-Year Floodplain Limitation in (a)(6) and (a)(8) Lacked
Adequate Record Support
In the record for the 2015 Rule, the agencies included information
supporting the conclusion that certain waters within a floodplain or
riparian area have a connection to downstream waters. For example, the
agencies stated that ``[t]he body of literature documenting
connectivity and downstream effects was most abundant for perennial and
intermittent streams, and for riparian/floodplain wetlands.'' 2015 TSD
at 104; see also id. at 350. The agencies concluded that ``science is
clear that wetlands and open waters in riparian areas individually and
cumulatively can have a significant effect on the chemical, physical,
or biological integrity of downstream waters.'' 80 FR 37089. The
agencies attempted to substantiate the addition of the 100-year
floodplain interval on these general scientific conclusions and their
desire to ``add the clarity and predictability that some commenters
requested'' to the definition of ``neighboring.'' 2015 TSD at 300.
However, upon review of the record supporting the distance limitations
in the 2015 Rule, the agencies now conclude that the record did not
include adequate support for the specific floodplain interval--the 100-
year floodplain--included in the final rule, even though the agencies
understood that ``identifying the 100-year floodplain is an important
aspect of establishing jurisdiction under the rule.'' 80 FR 37081. The
agencies' conclusion is consistent with the finding of the U.S.
District Court for the Southern District of Georgia that ``the [2015]
Rule's use of the 100-year floodplain based on FEMA flood maps to
define adjacent and case-by-case waters is arbitrary and capricious.''
Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at *30 (S.D. Ga.
Aug. 21, 2019).
In the proposed rule, the agencies referenced the 100-year
floodplain in just one passage, stating:
It should be noted that ``floodplain'' as defined in today's
proposed rule does not necessarily equate to the 100-year floodplain
as defined by the Federal Emergency Management Agency (FEMA).
However, the FEMA defined floodplain may often coincide with the
current definition proposed in this rule. Flood insurance rate maps
are based on the probability of a flood event occurring (e.g., 100-
year floods have a 1% probability of occurring in a given year or
500 year-floods have a 0.2% probability of occurring in a particular
year). Flood insurance rate maps are not based on an ecological
definition of the term ``floodplain,'' and therefore may not be
appropriate for identifying adjacent wetlands and waters for the
purposes of CWA jurisdiction.
79 FR 22236 (emphasis added). Notwithstanding these important
limitations identified in the proposal, in the final rule, the agencies
relied on the availability of FEMA flood insurance rate maps depicting
100-year floodplains to substantiate the use of that interval. 80 FR
37083 (``[T]he agencies chose the 100-year floodplain in part because
FEMA and NRCS together have generally mapped large portions of the
United States, and these maps are publicly available, well-known and
well-understood.''). While the agencies acknowledged the limited
practical import of these maps for setting a floodplain interval in the
rule, given that ``much of the United States has not been mapped by
FEMA and, in some cases, a particular map may be out of date and may
not accurately represent existing circumstances on the ground,'' they
did not grapple with these limitations. 80 FR 37081. In explaining its
finding that the agencies' use of the 100-year floodplain to define
``adjacent'' and ``case-by-case'' jurisdictional waters in the 2015
Rule was arbitrary and capricious, the U.S. District Court for the
Southern District of Georgia similarly noted the deficiencies in the
FEMA floodplain maps, stating that ``the
[[Page 56658]]
Agencies' justification for the 100-year floodplain interval was based
on an incomplete and in some cases inaccurate flood-map scheme.''
Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at *30 (S.D. Ga.
Aug. 21, 2019).
Moreover, the agencies did not adequately explain or provide
adequate record support for why the agencies believed that the 100-year
floodplain interval was more appropriate than another floodplain
interval--for instance, the 10-year floodplain, 50-year floodplain, or
500-year floodplain--in the definition of ``neighboring'' for (a)(6)
and in (a)(8). In the proposal, the agencies indicated that they were
considering a more-frequent flood recurrence interval than the 100-year
flood (and, in turn, a typically smaller floodplain area than the 100-
year floodplain) to implement the proposed ``floodplain'' definition.
79 FR 22209 (``When determining whether a water is located in a
floodplain, the agencies will use best professional judgment to
determine which flood interval to use (for example, 10 to 20 year flood
interval zone).'' (emphasis added)). Upon review of the record, the
agencies now acknowledge that they did not materially explain or
substantiate selection of the 100-year flood interval over, for
example, the 10- to 20-year flood interval, or any other interval.
Additionally, although the agencies' technical support document for the
2015 Rule alluded to ``the scientific literature, the agencies'
technical expertise and experience'' as supporting the inclusion of the
100-year floodplain, 2015 TSD at 301, the agencies provided no further
explanation for why the 100-year floodplain and not another floodplain
interval was appropriate. Nor did the agencies adequately describe why
such an interval was appropriate for setting the threshold for per se
jurisdictional coverage as a ``navigable water,'' rather than a case-
specific coverage. Using a 100-year floodplain interval instead of a
10-year or 50-year interval would typically subject the waters and
wetlands within a larger landmass to per se regulation. The Southern
District of Georgia similarly found that ``[w]hile the [2015] Rule
provides reasons for using floodplains generally to define
jurisdiction, it does not provide any other basis for choosing a 100-
year interval as opposed to a different interval (such as a 50-year or
200-year floodplain).'' Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL
3949922, at *30 (S.D. Ga. Aug. 21, 2019).
The agencies' conclusion today echoes court decisions that have
reviewed the 2015 Rule on the merits and at a preliminary stage. See,
e.g., Id. at *30; In re EPA, 803 F.3d at 807 (``Even assuming, for
present purposes, as the parties do, that Justice Kennedy's opinion in
Rapanos represents the best instruction on the permissible parameters
of `waters of the United States' as used in the Clean Water Act, it is
far from clear that the new Rule's distance limitations are harmonious
with the instruction.'').
ii. The 1,500 Foot Distance Limitation From the Ordinary High Water
Mark of an (a)(1)-(a)(5) Water in (a)(6) Lacked Adequate Record Support
In the 2015 Rule, the agencies concluded as a general matter that
physical proximity between two waters was a critical--if not the most
critical--factor to determine whether those two waters had a nexus.
``The science is clear that a water's proximity to downstream waters
influences its impact on those waters. The Science Report states,
`[s]patial proximity is one important determinant of the magnitude,
frequency and duration of connections between wetlands and streams that
will ultimately influence the fluxes of water, materials and biota
between wetlands and downstream waters.' Generally, waters that are
closer to a jurisdictional water are more likely to be connected to
that water than waters that are farther away.'' 80 FR 37089 (quoting
the Connectivity Report at ES-11). These conclusions formed the
principal record basis for the inclusion of a distance limitation in
the definition of ``neighboring.'' The agencies stated 1,500 feet from
the ordinary high water mark of an (a)(1) through (a)(5) water and
within the 100-year floodplain of such waters would be categorically
jurisdictional ``to protect vitally important waters while at the same
time providing a practical and implementable rule.'' 2015 TSD at 351.
However, the agencies now acknowledge that they did not provide
sufficient record support or an adequate explanation for selecting
1,500 feet, as compared to another distance, from the ordinary high
water mark of an (a)(1) through (a)(5) water, 1,500 feet from the high
tide line of a category (a)(1) through (a)(3) ``jurisdictional by
rule'' water, or 1,500 feet from the ordinary high water mark of the
Great Lakes as the boundary within which all wetlands and waters would
be jurisdictional categorically. Indeed, the agencies did not explain
why the 1,500-foot distance, as compared to 500 feet, 1,000 feet, or
another distance, was the appropriate demarcation between categorically
jurisdictional waters and those waters that could be jurisdictional on
a case-specific basis under the 2015 Rule. The agencies thereby
subjected waters and wetlands within a larger landmass to per se
regulation compared to other smaller distances that may have been
selected. For these reasons, the agencies conclude that this distance
limitation in the 2015 Rule lacked adequate record support. The
agencies' conclusion is consistent with the U.S. District Court for the
Southern District of Georgia's holding that ``the 1,500-foot limit for
adjacent waters is arbitrary and capricious because the Agencies did
not give reasons beyond mere conclusory statements for why this limit
was selected'' and that ``the Agencies failed to give specific reasons
grounded in science and the significant-nexus analysis under the CWA
for why this [1,500-foot] limit was chosen as opposed to any other
distance.'' Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at
*30 (S.D. Ga. Aug. 21, 2019). In concluding that the 1,500-foot
distance limitation in the 2015 Rule lacked adequate record support,
the agencies are not modifying their inherent rulemaking authority to
draw a line between jurisdictional and non-jurisdictional waters on the
``continuum'' ``between open waters and dry land.'' Riverside Bayview,
474 U.S. at 132. Rather, the agencies are simply acknowledging that
their prior rulemaking did not include sufficient record support and
justification to adequately satisfy the procedural mandates of the APA.
iii. The 4,000-Foot Distance Limitation From the High Tide Line or
Ordinary High Water Mark of Any (a)(1) Through (a)(5) Water in (a)(8)
Lacked Adequate Record Support
For waters that were not jurisdictional categorically under the
2015 Rule, the rule required a case-specific significant nexus analysis
if those waters are within 4,000 feet of the high tide line or ordinary
high water mark of any (a)(1) through (a)(5) water. The agencies
supported their selection of the 4,000-foot outer boundary with general
statements about the science, the goals of the Act, and administrative
convenience. See 2015 TSD at 358 (``[D]ue to the many functions that
waters located within 4,000 feet of the high tide line of a traditional
navigable water or the territorial seas provide and their often close
connections to the surrounding navigable in fact waters, science
supports the agencies' determination that such waters are rightfully
evaluated on a case-specific basis for significant nexus to a
traditional navigable water or the
[[Page 56659]]
territorial seas.''); see also id. at 357 (stating that the agencies
concluded that this limitation would ``sufficiently capture for
analysis those waters that are important to protect to achieve the
goals of the Clean Water Act''). The agencies also stated that, in
their experience, ``the vast majority of waters where a significant
nexus has been found, and which are therefore important to protect to
achieve the goals of the Act, are located within the 4,000 foot
boundary.'' 80 FR 37089; see also 2015 EA/FONSI at 22-23 (``[T]he vast
majority of wetlands with a significant nexus are located within the
4,000 foot boundary.''). Upon reconsideration of this part of the 2015
Rule, the agencies now conclude that they did not provide an adequate
record basis or adequate explanation for the selection of the 4,000-
foot distance limitation in (a)(8). Indeed, the agencies provided no
explanation for why 4,000 feet--and not another distance closer to or
farther from a category (a)(1) through (a)(5) water--is the appropriate
limitation for case-specific jurisdictional determinations. The
agencies also provided insufficient explanation for how they determined
that the vast majority of waters where a significant nexus has been
found are located within the 4,000 foot boundary, citing in subsequent
litigation only to general statements about the agencies' experience in
conducting jurisdictional determinations and an analysis of 199
jurisdictional determinations \51\ that was not made available for
public review and comment.\52\ The agencies now conclude that this
distance limitation was procedurally deficient and based on an
insufficient record.
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\51\ U.S. EPA. Supporting Documentation: Analysis of
Jurisdictional Determinations for Economic Analysis and Rule (Docket
ID: EPA-HQ-OW-2011-0880-20877), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20877.
\52\ In the SNPRM, the agencies described and sought comment on
the 199 JD analysis and six case studies drawn from it that were
analyzed as part of the 2015 rulemaking. 83 FR 32244-45. The 199 JD
analysis concluded that, of the JDs analyzed, ``four sites included
wetlands or waters that are located further than 4,000 feet from a
jurisdictional tributary,'' two of which were jurisdictional under
the pre-existing regulatory regime. The agencies also concluded that
all four of these sites would ``not be jurisdictional'' under the
2015 Rule. Upon further review of the 199 JD analysis and the public
comments received, the agencies now conclude that any reliance on
the 199 JD analysis to support setting a distance limit of 4,000
feet was misplaced and provided an insufficient record basis for
this limitation. First, the analysis considered only one distance
limit: 4,000 feet. It made no attempt to determine the change in
jurisdiction that would result if a different numeric limitation had
been selected or to explain why 4,000 feet was more appropriate than
another numeric limitation (e.g., 3,000 feet) for capturing the
majority of waters likely to possess a significant nexus. Second,
the analysis did not involve performing a case-specific review of
jurisdiction under the 2015 Rule, but rather entailed applying the
2015 Rule's parameters to facts contained in existing jurisdictional
determinations conducted under the pre-existing regulatory regime.
The agencies now conclude that this approach limits the utility of
this analysis for determining appropriate distance limits under the
criteria of the 2015 Rule. Third, the agencies considered only the
change in jurisdiction of waters beyond 4,000 feet, even though the
analysis contained certain examples where the agencies concluded
that the 2015 Rule likely modified jurisdiction over waters within
4,000 feet that were deemed not jurisdictional under the pre-
existing regulatory regime. See AR-20877 at 2 (2004-001914); id.
(LRC-2015-31); id. (LRE-1998-1170040-A14); id. at 3 (MVM-2014-460);
id. at 4 (NAE-2012-1813); id. (NAO-2014-2269). The agencies did not
explain the importance, if any, of the estimated increase in
jurisdiction among these six JDs as part of using this analysis.
Lastly, while the agencies explained how this analysis was
conducted, the agencies did not fully explain how they used or
relied upon this analysis. To be sure, in its brief filed in the
U.S. Court of Appeals for the Sixth Circuit, the United States
stated that ``Based on [the 199 JD] analysis and their general
experience implementing the Act since Rapanos, the Agencies
concluded that setting a distance limit of 4,000 feet would
encompass those waters that are most likely to have a significant
nexus while also providing the certainty sought by the public.'' Br.
at 123. But the agencies did not provide an adequate explanation as
to how they used or relied upon this analysis in the 2015 Rule's
preamble, technical support document, response to comments document,
or economic analysis.
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iv. The Agencies Conclude the Lack of Adequate Record Support for the
Distance Limitations Warrants Repeal
The agencies conclude that the procedural errors and lack of
adequate record support associated with the distance-based limitations
described in this section are a sufficient basis, standing alone, to
warrant repeal of the 2015 Rule. The distance limitations were a
central aspect of the 2015 Rule, and necessary for the rule to
accomplish its goal of increasing consistency and predictability. The
agencies have determined that the notice and record deficiencies
associated with the distance limitations are fundamental flaws in
central provisions of the 2015 Rule, and thus the agencies have
concluded that it would not be appropriate to remediate these errors
merely by removing the unsupported limitations, as this approach would
not maintain consistency with the agencies' stated purposes and
findings in the 2015 Rule. The agencies are considering the possible
use of distance limitations in the separate rulemaking to establish a
proposed revised definition of ``waters of the United States.'' See,
e.g., 84 FR 4189 (requesting comment on potential interpretations of
adjacency, such as including a distance limit to establish the
boundaries between Federal and State waters). Pending any final action
on the separate rulemaking, the agencies conclude that this final rule
will 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. For these reasons, and in response to the remand of the
2015 Rule from the U.S. District Court for the Southern District of
Texas, including its concern that the procedural errors altered the
scope of CWA jurisdiction, and the remand of the U.S. District Court
for the Southern District of Georgia, including its concerns with the
substantive and procedural adequacy of the distance-based limitations
in the final rule, the agencies repeal the 2015 Rule.
In summary, the deficiencies of the 2015 Rule stem in part from the
agencies' application of an overly broad significant nexus standard and
their inadequate consideration of section 101(b) of the Act in
developing the 2015 Rule. In particular, the agencies find that the
broad interpretation of Justice Kennedy's significant nexus standard
adopted in the 2015 Rule was a foundational error that propagated
throughout the 2015 Rule, misinforming the rule's definitions of
``significant nexus,'' ``similarly situated,'' ``in the region,''
``tributary,'' ``adjacent,'' and ``neighboring.'' As a result, these
flaws pervaded the 2015 Rule's entire structure and scope and resulted
in a definition of ``waters of the United States'' that covered waters
outside the limits on federal CWA jurisdiction intended by Congress and
reflected in Supreme Court cases, in addition to raising significant
constitutional questions. The agencies have determined that the
substantial problems that are discussed throughout Section III, when
considered collectively in the context of the 2015 Rule, were both
fundamental and systemic and cannot be addressed individually. Instead,
the agencies conclude that the 2015 Rule must be repealed in its
entirety.
IV. Basis for Restoring the Pre-Existing Regulations
In the NPRM and SNPRM, the agencies proposed to recodify the pre-
2015 regulations to provide regulatory certainty for the agencies,
their co-regulators, regulated entities, and the public. See, e.g., 82
FR 34899; 83 FR 32237. The agencies explained that this rulemaking was
``intended to ensure certainty as to the scope of CWA jurisdiction on
an interim basis as the agencies proceed to engage in . . . [a]
substantive review of the appropriate scope of `waters of the United
States.' ''
[[Page 56660]]
82 FR 34901. The agencies expressly sought comment on whether
recodifying the prior regulations would provide for greater regulatory
certainty, see 83 FR 32240, and also solicited comment on ``whether it
is desirable and appropriate to re-codify [the pre-existing
regulations] as an interim first step pending a substantive rulemaking
to reconsider the definition of `waters of the United States.' '' 82 FR
34903.
The agencies received a significant number of comments discussing
the impact of this rulemaking on regulatory certainty. Many commenters
asserted that the 2015 Rule failed to increase predictability and
consistency under the CWA, instead creating confusion and uncertainty.
Some commenters stated that the 2015 Rule broadened the scope of
federal jurisdiction to include waters that were previously not covered
under the CWA, which the commenters argued further contributes to
uncertainty and confusion. Other commenters found that the 2015 Rule
increased regulatory certainty compared to the pre-existing regulatory
regime; these commenters asserted that recodifying the pre-existing
regulations would thus reduce regulatory certainty. After a thorough
review of the comments received on the NPRM and SNPRM, the agencies
conclude that this final rule will provide greater regulatory certainty
and national consistency while the agencies consider public comments on
the proposed revised definition of ``waters of the United States.'' See
84 FR 4154 (Feb. 14, 2019).
This final rule returns implementation of the definition of
``waters of the United States'' under the CWA to the regulatory regime
that existed for many years before the agencies issued the 2015 Rule
and that still exists in more than half the States at the time of the
publication of this final rule. The agencies have maintained separate
regulations defining the statutory term ``waters of the United
States,'' but the text of the regulations have been virtually identical
since the Corps' and the EPA's 1986 and 1988 rulemakings, respectively.
See 51 FR 41206 (Nov. 13, 1986) (revising Corps regulations to align
more closely with EPA regulations defining ``waters of the United
States''); see also 53 FR 20764 (June 6, 1988) (including language from
the preamble to the Corps' 1986 regulations to provide ``clarity and
consistency'' regarding the EPA's regulatory definition of ``waters of
the United States''). Following the promulgation of the 2015 Rule, the
agencies have continued to implement those pre-existing regulations
(commonly referred to as the ``1986 regulations'') in a shifting
patchwork of States subject to federal court stays of and injunctions
against the 2015 Rule. In response to court orders regarding the
agencies' ``waters of the United States'' rulemakings, the EPA has
maintained a web page with a map reflecting which regulatory regime is
applicable in each State (https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update).
For over 30 years, challenges to the agencies' application of the
1986 regulations have yielded a significant body of case law that has
helped to define the scope of the agencies' CWA authority and shaped
the agencies' approach to implementing the pre-2015 regulations. In
particular, the Supreme Court's decisions in SWANCC and Rapanos inform
the agencies' implementation of the 1986 regulations. After those
decisions, the agencies issued interpretive guidance in 2003 and 2008
that is now longstanding and familiar.\53\ As such, though the text of
the 1986 regulations has remained largely unchanged,\54\ the agencies
have refined their application of the 1986 regulatory text consistent
with Supreme Court decisions and informed by the agencies' guidance and
their technical experience implementing the Act pursuant to those pre-
existing regulations.
---------------------------------------------------------------------------
\53\ Joint Memorandum, 68 FR 1991, 1995 (Jan. 15, 2003)
(providing clarifying guidance regarding the SWANCC decision); 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 (Dec. 2, 2008), available at
https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf.
\54\ In 1993, the agencies added an exclusion for prior
converted cropland to the definition of ``waters of the United
States.'' See 58 FR 45008 (Aug. 25, 1993).
---------------------------------------------------------------------------
The agencies have been applying the 1986 regulations consistent
with the Supreme Court's decisions in SWANCC and Rapanos and informed
by the agencies' corresponding guidance for over a decade. The
agencies, their co-regulators, and the regulated community are thus
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. For example, between
June 2007 and August 2019, the Corps issued 220,169 approved
jurisdictional determinations under the pre-2015 Rule regulatory
regime.\55\
---------------------------------------------------------------------------
\55\ Data from the U.S. Army Corps of Engineers' Operation and
Maintenance Business Information Link, Regulatory Module (ORM2)
database, May 2019.
---------------------------------------------------------------------------
While some commenters agreed that returning to the pre-2015 Rule
regulatory regime would promote regulatory certainty, other commenters
asserted that recodifying the pre-existing regulations would reduce
regulatory certainty by reinstating the prior regulatory regime's case-
specific significant nexus analysis for certain jurisdictional
determinations, which the commenters characterized as inconsistent and
burdensome. In addition, some commenters argued that the agencies'
proposal to repeal the 2015 Rule and recodify the pre-existing
regulations disregards the substantial uncertainty, confusion, and
inconsistencies under the prior regime that the agencies had sought to
address in developing the 2015 Rule.
The agencies acknowledge that in issuing the 2015 Rule, the
agencies intended to ``make the process of identifying waters protected
under the CWA easier to understand.'' 80 FR 37054, 37057 (June 29,
2015). Yet, as explained in Section III.C. of this notice, the agencies
find that the 2015 Rule exceeded the agencies' statutory authority and
that the agencies did not adequately consider and accord due weight to
Congress' policy directive in CWA section 101(b) in promulgating the
2015 Rule. The agencies have concluded that, as a result of those
fundamental issues, the 2015 Rule must be repealed. At the same time,
the agencies recognize that the pre-existing regulations pose certain
implementation challenges, particularly because significant nexus
analyses continue to be required for certain waters consistent with the
agencies' still-effective Rapanos Guidance. Following the Supreme
Court's decisions in SWANCC and Rapanos, which the agencies note did
not vacate or remand the 1986 regulations, the Corps published a
guidebook to assist district staff in issuing approved jurisdictional
determinations.\56\ 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.
---------------------------------------------------------------------------
\56\ U.S. Army Corps of Engineers Jurisdictional Determination
(JD) Form Instructional Guidebook, available at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Related-Resources/CWA-Guidance/.
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In May 2019, the U.S. District Court for the Southern District of
Texas remanded the 2015 Rule to the agencies
[[Page 56661]]
on the grounds that the rule violated the APA. Specifically, the court
found that the rule violated the APA's notice and comment requirements
because: (1) The 2015 Rule's definition of ``adjacent'' waters (which
relied on distance-based limitations) was not a ``logical outgrowth''
of the proposal's definition of ``adjacent'' waters (which relied on
ecologic and hydrologic criteria); and (2) the agencies denied
interested parties an opportunity to comment on the final draft of the
Connectivity Report, which served as the technical basis for the final
rule. See Texas v. EPA, No. 3:15-cv-162, 2019 WL 2272464 (S.D. Tex. May
28, 2019). As the court noted, ``the Final Connectivity Report was the
technical basis for the Final Rule and was instrumental in determining
what changes were to be made to the definition of the phrase [`the
waters of the United States'].'' Id. at 12; see also 80 FR 37057
(explaining that the Connectivity Report ``provides much of the
technical basis for [the] [R]ule.''). The court found that, because the
Connectivity Report was an important basis for the 2015 Rule,
interested parties should have had an opportunity to comment on the
final version of the Report. Recodifying the prior regulations restores
a regulatory regime that is not based on the conclusions in the
Connectivity Report and remedies the infirmities that the Southern
District of Texas and the Southern District of Georgia identified in
the 2015 Rule, including the lack of notice for the distance-based
limitations in the definition of ``adjacent'' waters and other
procedural and substantive deficiencies in the rule.
In the agencies' proposed revised definition of ``waters of the
United States,'' the agencies seek to establish a clear and
implementable definition that better effectuates the language,
structure, and purposes of the CWA. See 84 FR 4174. Pending any final
action on that proposed rulemaking, the agencies conclude that this
final rule will 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.
A number of commenters supported repealing the 2015 Rule and
recodifying the prior regulations due to the commenters' concerns that
litigation over the 2015 Rule creates significant regulatory
uncertainty. Commenters noted that the 2015 Rule litigation has led to
different regulatory regimes being in effect in different States,
thereby burdening regulated entities that operate in multiple States.
In contrast, some commenters asserted that regulatory uncertainty
associated with legal challenges to the 2015 Rule is not an adequate
basis for this rulemaking. Several of these commenters argued that the
agencies have failed to consider that this rulemaking could also
generate litigation and contribute to uncertainty.
For periods of time over the last four years, the agencies have
applied different regulatory regimes throughout the country as the
result of preliminary injunctions against the 2015 Rule. By reinstating
the 1986 definition of ``waters of the United States'' nationwide, this
final rule will alleviate inconsistencies, confusion, and uncertainty
arising from the agencies' application of two different regulatory
regimes across the country. The agencies recognize that this final rule
may itself be subject to legal challenges, and that this gives rise to
the possibility of a return to the application of different regulatory
definitions in different States. Yet, the agencies cannot predict the
outcome of any future challenges, and the possibility of courts
enjoining this rule should not preclude the agencies from taking this
final action. At this time, due to preliminary injunctions against the
2015 Rule, it is only by finalizing this rule to codify the pre-
existing regulations that the agencies can return to implementing a
uniform definition of ``waters of the United States'' nationwide.
Though this final rule is intended to be the first step in a
comprehensive, two-step rulemaking process, the agencies acknowledge
that they cannot prejudge the outcome of the separate rulemaking on a
proposed revised definition of ``waters of the United States.''
Regardless of whether the agencies finalize a new definition, the
agencies conclude that restoring the pre-existing regulations is
appropriate because, as implemented, those regulations adhere more
closely than the 2015 Rule to the jurisdictional limits reflected in
the statute and case law. For example, the agencies find that the prior
regulatory regime is consistent with the agencies' view that Justice
Kennedy did not intend for the significant nexus standard to be applied
in a manner that would result in assertion of jurisdiction over waters
deemed non-jurisdictional in SWANCC. Moreover, by leaving certain types
of isolated waters and certain ephemeral streams under the sole
jurisdiction of States, the pre-existing regulatory framework also
provides a more appropriate balancing of CWA sections 101(a) and
101(b). With this final rule, the regulations defining ``waters of the
United States'' will be those portions of 33 CFR part 328 and 40 CFR
parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401 as they
existed immediately prior to the 2015 Rule's amendments.\57\ The
agencies will continue to implement those regulations informed by
applicable agency guidance documents and consistent with Supreme Court
decisions and longstanding agency practice. Given the longstanding
nature of the pre-2015 Rule regulatory framework, its track record of
implementation and extensive body of related case law, and thus its
familiarity to regulators, the regulated community and other
stakeholders, the agencies conclude that this 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.'' See
84 FR 4154.
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\57\ The agencies observe that this final rule to repeal the
2015 Rule and restore the prior regulations is consistent with the
broadly accepted practice of courts to reinstate a prior rule where
the current regulation is invalid. See, e.g., Paulsen v. Daniels,
413 F. 3d 999, 1008 (9th Cir. 2005) (``The effect of invalidating an
agency rule is to reinstate the rule previously in force.''); Action
on Smoking & Health v. Civil Aeronautics Bd., 713 F.2d 795, 797 (DC
Cir. 1983) (``Thus, by vacating or rescinding the [rule], the
judgment of this court had the effect of reinstating the rules
previously in force.''). Indeed, were a court to find the 2015 Rule
unlawful, the presumptive remedy would be to reinstate the pre-
existing regulations. While the agencies recognize and fully
acknowledge that their authority differs from that of a federal
court, the agencies find that this common judicial practice further
illustrates the reasonableness of the agencies' decision to replace
the unlawful 2015 Rule with the prior regulations.
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V. Alternatives to the Final Rule
After thoroughly considering comments received on the NPRM and
SNPRM regarding alternatives to this action, the agencies conclude that
repealing the 2015 Rule and restoring the pre-2015 Rule regulatory
regime is the most effective and efficient way to remedy the
fundamental and systemic flaws of the 2015 Rule, achieve the objectives
of the Act, and provide regulatory certainty as the agencies consider
public comments on a proposed revised definition of ``waters of the
United States.'' See 84 FR 4154.
Under the APA, a reviewing court will ``hold unlawful and set aside
agency action, findings, and conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.'' 5 U.S.C. 706(2)(A). 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 for abandoning those alternatives. Motor Vehicle Mfrs. Ass'n
[[Page 56662]]
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983). Agencies are
not required, however, to consider ``all policy alternatives in
reaching a decision.'' Id. at 50-51. Indeed, an agency rulemaking
``cannot be found wanting simply because the agency failed to include
every alternative device and thought conceivable by the mind of man . .
. regardless of how uncommon or unknown that alternative may have
been.'' Id. (quoting Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.S. 519, 551 (1978)).
The agencies considered alternatives to the final rule throughout
the rulemaking process. In the preamble to the NPRM, the agencies
explained that they considered alternatives to the proposed action,
including simply withdrawing or staying the 2015 Rule, but did not
identify any alternatives that would provide stability as effectively
and efficiently as the proposed action pending the conclusion of the
agencies' two-step rulemaking process. See 82 FR 34899, 34903 (July 27,
2017). Similarly, in the preamble to the SNPRM, the agencies explained
that they considered several alternatives to the proposed action,
including revising specific elements of the 2015 Rule, issuing revised
implementation guidance, and further extending the applicability date
of the 2015 Rule. See 83 FR 32227, 32249 (July 12, 2018). The agencies
then requested comments on ``whether any of these alternative
approaches would fully address and ameliorate potential deficiencies in
and litigation risk associated with the 2015 Rule.'' Id. The agencies
also requested comment on ``whether this proposal is the best and most
efficient approach to address the potential deficiencies [with the 2015
Rule] identified in this notice and to provide the predictability and
regulatory certainty that alternative approaches may not provide.'' Id.
The agencies received comments suggesting four categories of
alternatives to the agencies' proposal to repeal the 2015 Rule and
recodify the pre-existing regulations. Commenters suggested (1)
revising the 2015 Rule; (2) repealing the 2015 Rule and then
maintaining or revising the pre-2015 Rule regulatory regime; (3)
repealing the 2015 Rule but not recodifying the pre-existing
regulations; and (4) pursuing alternative actions to rulemaking.
The agencies find that revising select provisions in the 2015 Rule
would not resolve the fundamental flaws underlying the 2015 Rule and
would result in the 2015 Rule remaining in place beyond the effective
date of this final rule. As described earlier, the agencies conclude
that the 2015 Rule did not implement the legal limits on the scope of
the agencies' authority under the CWA as intended by Congress and
reflected in Supreme Court cases, did not adequately consider and
accord due weight to the policy of the Congress in CWA section 101(b),
pushed the envelope of the agencies' constitutional and statutory
authority absent a clear statement from Congress, and included
distance-based limitations that suffered from procedural errors and a
lack of adequate record support. Conducting rulemaking to revise
specific provisions in the 2015 Rule would not remedy these fundamental
flaws that permeate the rule. The agencies are considering specific
definitional changes in their separate rulemaking on a proposed revised
definition of ``waters of the United States.'' The agencies find that
it is preferable to repeal the 2015 Rule and recodify the pre-existing
regulations, informed by applicable agency guidance documents and
consistent with Supreme Court decisions and longstanding agency
practice, than to leave in place a rule that exceeds the agencies'
statutory authority--especially a rule of this magnitude--pending a
separate rulemaking process.
Similarly, the agencies find that repealing the 2015 Rule,
reinstating the pre-2015 Rule regulatory regime, and either maintaining
that regime or using it as a basis for further rulemaking would provide
less regulatory certainty than the agencies' current two-step
rulemaking approach. The agencies find that reinstating the
longstanding and familiar pre-2015 Rule regulatory regime will provide
regulatory certainty in this interim period, but they also acknowledge
that the pre-existing regulations pose certain implementation
difficulties. The agencies thus find that proceeding through the
agencies' two-step rulemaking process is preferable to maintaining the
``familiar, if imperfect'' pre-existing regulations. See In re EPA, 803
F.3d at 808. If the agencies do not finalize a new definition of
``waters of the United States'' as part of their two-step rulemaking
process or if a new definition is overturned by a court in the future,
it is appropriate for the pre-2015 Rule regulatory regime to remain in
place because, as implemented, it adheres more closely than the 2015
Rule to the limits imposed by the Act and is longstanding and familiar.
The agencies conclude that it is appropriate to codify the pre-existing
regulations as an interim step pending the agencies' separate
rulemaking to establish a definition of ``waters of the United States''
that better effectuates the language, structure, and purposes of the
Act.
The agencies also find that repealing the 2015 Rule without
restoring the pre-2015 Rule regulatory regime would not provide
regulatory certainty to the same extent as the agencies two-step
rulemaking approach. The pre-2015 Rule regulatory regime is imperfect,
but it is longstanding and familiar. As described in Section IV of this
notice, restoring the pre-2015 Rule regime provides regulatory
certainty while the agencies reconsider the proper scope of federal CWA
authority in the agencies' separate rulemaking process.
Finally, the agencies find that relying solely on non-regulatory
actions to clarify the definition of ``waters of the United States''
would not provide sufficient regulatory certainty. The agencies
considered revising current guidance, issuing new guidance, and
developing improved technical tools to assist agency staff, States,
Tribes and the regulated community in implementing the 2015 Rule. The
agencies find, however, that adopting these non-regulatory alternatives
in lieu of regulatory action would provide less regulatory certainty
than the agencies' two-step rulemaking approach and would not remedy
the fundamental flaws that permeate the 2015 Rule. In the proposed
rulemaking to establish a revised definition of ``waters of the United
States,'' however, the agencies are considering additional ways to
improve implementation of the definition of ``waters of the United
States,'' in addition to revising the regulatory definition. See 84 FR
4198-4200.
VI. Economic Analysis
The agencies conducted an economic analysis (EA) for the proposed
rule in 2017 to provide information on the potential changes to the
costs and benefits of various CWA programs that could result from a
change in the number of positive jurisdictional determinations when
repealing the 2015 Rule and recodifying the pre-existing regulations.
The agencies have since updated their analysis for both the proposed
rule to revise the definition of ``waters of the United States'' and
for this final rule. The agencies note that the final decision to
repeal the 2015 Rule and recodify the pre-existing regulations in this
rulemaking is not based on the information in the agencies' economic
analysis. See, e.g., NAHB, 682 F.3d at 1039-40.
Filings in litigation against the 2015 Rule and comments submitted
in response to the 2017 proposed repeal of that rule have critiqued the
methods
[[Page 56663]]
used to estimate the costs and benefits of these actions. After
assessing the input provided, the agencies have concluded that
significant flaws in the economic analyses supporting the 2015 Rule and
the 2017 proposed repeal led to likely overstatements of costs and
benefits. The agencies have therefore made changes to their
methodologies in support of this final rule. As a result of these
changes, the economic analysis for this final rule explores in greater
depth the role the States play in regulating their water resources,
corrects and updates the wetland valuation methodology, and more
clearly acknowledges the uncertainties in the agencies' calculations.
The most significant reason that costs and benefits of the economic
analyses accompanying the 2015 Rule and the 2017 proposed repeal may
have been overestimated is that they did not consider the different
ways in which State governments could react to a change in CWA
jurisdiction. Both analyses assumed that States always adjust
regulatory regimes to match the federal jurisdictional level in
response to a change in federal jurisdiction. The analysis for this
final rule responds to the concerns raised by commenters by
incorporating a more balanced and robust characterization of possible
State responses to a change in jurisdiction and evaluates a series of
scenarios that quantify the sensitivity of the costs and benefits to
varying assumptions about State responses. These changes in analytic
approach build on the agencies' detailed review of State programs and
the literature on environmental federalism.
As described in the EA for this final rule and in the EA for the
``Proposed Revised Definition of `Waters of the United States,'''
December 14, 2018, the agencies' revised analysis indicates that
potential State responses to a change in the definition of a ``water of
the United States'' fall along a continuum and depend on legal and
other constraints. Some States cannot currently regulate a more
expansive set of waters than those subject to the federal CWA
definition of ``waters of the United States.'' In contrast, States that
regulate surface waters and wetlands as broadly or more broadly than
the 2015 Rule, independently of the scope of the federal CWA, may not
be affected by this action. Complete State ``gap-filling'' could result
in no change in compliance costs to the regulated community and no
change in environmental benefits (that is, neither avoided costs nor
forgone benefits would occur), suggesting a zero-net impact in the
long-run, and therefore the costs and benefits presented in the
analyses of the 2015 Rule and its proposed repeal may have been
overstated for those States. States that fall between these extremes
are evaluated by either including or excluding them from the estimates
of cost savings and forgone benefits. In reality some States may
regulate only a subset of affected waters, but the agencies did not
have sufficient information to incorporate that level of detail into
the analysis.
Another potential outcome of a change in CWA jurisdiction is that
State governments may be able to find more efficient ways of managing
local resources than the Federal government, consistent with the theory
of ``fiscal federalism'' as described in the EA for the final rule.
Depending on the value of a newly characterized non-jurisdictional
water, States may or may not choose to regulate that water and the
compliance costs and environmental benefits of its regulation could
increase or decrease, respectively. In either case, however, net
benefits would increase, assuming a State can more efficiently allocate
resources towards environmental protection due to local knowledge of
amenities and constituent preferences. As effective regulation requires
political capital and fiscal resources, however, the likely best
indication of the way in which States will exercise their authority as
the Federal government changes the scope of CWA jurisdiction is the way
in which they have exercised authority in the past and whether the
infrastructure to manage the regulatory programs already exists. In
considering a number of scenarios in which States may retain regulatory
oversight no longer required by the federal regulations implementing
the CWA, the revised analysis lowers the estimated cost savings and
forgone benefits of final rule.
Litigants and commenters on the 2015 Rule and 2017 proposed repeal,
respectively, also identified concerns with the methods the agencies
used for the 2015 Rule to value wetlands which the agencies described
qualitatively in the 2017 proposal. Application of the agencies'
wetlands valuation studies on a national level led to potentially
inflated willingness to pay (WTP) estimates and thus an overestimate of
the expected benefits from the 2015 Rule. The 2015 analysis relied on
estimates of WTP for wetland preservation or expansion from ten
studies, but as discussed in the EA for this final rule, the agencies
have concluded that only five of the ten studies relied upon satisfy
standard benefit transfer selection criteria established in the EPA's
own guidelines.
To correct for the prior use of inappropriate studies and concerns
with benefit transfer methods used for the 2015 Rule, the agencies
developed more appropriate methodologies to estimate the value of
forgone wetland benefits that could arise as a result of this final
rule. For example, the agencies applied a meta-analysis of wetland
valuation studies, which combined and synthesized the results from
multiple valuation studies to estimate a new transfer function. Meta-
analyses control for the confounding attributes of underlying studies,
so this analysis was able to make use of a larger number of studies
than the agencies could use for the unit value benefit transfer in the
analysis supporting the 2015 Rule.
Even after correcting the approaches taken to estimate State
responses and value wetlands, the agencies identified a number of
sources of uncertainty in the economic analyses of the 2015 Rule and
2017 proposed repeal. For example, in assessing categories of waters
that the 2015 Rule made newly jurisdictional, the agencies did not
remove waters subject to that rule's expanded set of exclusions. See
2015 Rule Economic Analysis at 8. The economic analysis in support of
the 2015 Rule and its proposed repeal therefore likely considered the
costs and benefits of regulating waters that would have been subject to
exclusions and consequently likely overestimated the costs and benefits
of the rule.
Similarly, the estimated benefits and costs from the 2015 Rule and
the 2017 proposed repeal may have incorrectly assumed that the
percentage increase in costs and benefits of increased positive
jurisdictional determinations was equal to the percentage increase in
regulated activities. The analyses assumed that the rule would affect
entities regulated under the CWA in direct proportion to the percent
change in positive jurisdictional determinations. This proportional
assumption could have yielded overestimates.
While the agencies have striven to make the economic analysis
supporting this final rule as transparent and accurate as possible,
their goal in doing so is solely for informational purposes. The
agencies are repealing the 2015 Rule to ensure that they do not exceed
their statutory authority, not based on analyses of the economic
impacts of the 2015 Rule. The economic analyses do, however, provide
some helpful information about the 2015 Rule and its repeal. The
agencies developed several scenarios using different assumptions about
potential State regulation of
[[Page 56664]]
waters to provide a range of costs and benefits. Under the scenario
that assumes the fewest number of States regulating newly non-
jurisdictional waters, the agencies estimate the final rule would
produce annual avoided costs ranging between $116 and $174 million and
annual forgone benefits ranging between $69 to $79 million. When
assuming the greatest number of States are already regulating newly
non-jurisdictional waters, the agencies estimate there would be avoided
annual costs ranging from $61 to $104 million and annual forgone
benefits are estimated to be approximately $37 to $39 million. Under
the scenario that assumes no States will regulate newly non-
jurisdictional waters, an outcome the agencies believe would be
unlikely, the agencies estimate the final rule would produce annual
avoided costs ranging from $164 to $345 million and annual forgone
benefits ranging from $138 to $149 million.
VII. The Effect of This Rule and the Agencies' Next Steps
In defining the term ``waters of the United States'' under the CWA,
Congress gave the agencies broad discretion to articulate reasonable
limits on the meaning of that term, consistent with the Act's text and
its policies as set forth in CWA section 101. See, e.g., Rapanos, 547
U.S. at 758 (Roberts, C.J., concurring) (``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 in developing some notion of an outer bound to the
reach of their authority.'') (emphasis in original). In light of the
substantial litigation regarding the 2015 Rule and based on the
agencies' experience and expertise in administering the definition of
``waters of the United States'' under the CWA under the prior
regulations, the agencies proposed to repeal the 2015 Rule and put in
place the pre-existing regulations. This proposal was based on the
concerns articulated in the NPRM and SNPRM, and the agencies' concern
that there may be significant disruption to the implementation of the
Act and to the public, including regulated entities, if the 2015 Rule
were vacated in part. With this final rule, the agencies exercise their
discretion and policy judgment and repeal the 2015 Rule permanently and
in its entirety because the agencies believe that this approach is the
most appropriate means to remedy the deficiencies of the 2015 Rule
identified above, address the extensive litigation surrounding the 2015
Rule, and restore a regulatory process that has been in place for
years.
The 2015 Rule amended longstanding regulations contained in
portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122,
230, 232, 300, 302, and 401 by revising, removing, and re-designating
certain paragraphs and definitions in those regulations. With this
final rule, the agencies repeal the 2015 Rule and restore the
regulations in existence immediately prior to the 2015 Rule. As such,
the regulatory definitions of ``waters of the United States'' in effect
beginning on the effective date of this final rule are those portions
of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232,
300, 302, and 401 as they existed immediately prior to the 2015 Rule's
amendments. See, e.g., API v. EPA, 883 F.3d 918, 923 (D.C. Cir. 2018)
(regulatory criterion in effect immediately before enactment of
criterion that was vacated by the court ``replaces the now-vacated''
criterion); see also supra at note 58.
With this final rule, the agencies recodify the prior regulations
in the CFR, which avoids creating a regulatory vacuum with the repeal
of the 2015 Rule, and the agencies need not consider the potential
consequences of such a regulatory vacuum in light of this. The agencies
will apply the prior definition consistent with Supreme Court decisions
and longstanding practice, as informed by applicable guidance
documents, training, and experience, while the agencies consider public
comments on the proposed revised definition of ``waters of the United
States.'' See 84 FR 4154.
The current regulatory scheme for determining CWA jurisdiction is
``familiar, if imperfect,'' In re EPA, 803 F.3d at 808, and the
agencies and regulated public have significant experience operating
under the longstanding regulations that were replaced by the 2015 Rule.
Apart from a roughly six-week period when the 2015 Rule was in effect
in 37 States and the period since the August 16, 2018 U.S. District
Court for the District of South Carolina decision enjoining the
applicability date rule nationwide, which placed the 2015 Rule into
effect in 26 States (at that time), the District of Columbia, and U.S.
Territories, the agencies have continued to implement the pre-existing
regulatory definitions in more than half of the States.
The agencies acknowledge that the pre-existing regulations have
been criticized and their application has been narrowed by various
legal decisions, including SWANCC and Rapanos; however, the
longstanding nature of the regulatory framework and its track record of
implementation makes it preferable at this time. The agencies believe
that, until a new definition is completed, it is important to retain
the regulations that have been implemented for many years rather than
the 2015 Rule, which has been and continues to be mired in litigation
and recently was remanded back to the agencies for extending the
agencies' delegated authority beyond the limits of the CWA and
violating the APA when promulgating it.
Restoration of the prior regulatory text in the CFR, interpreted in
a manner consistent with Supreme Court decisions, and informed by
applicable agency guidance documents and longstanding practice, will
ensure that the scope of CWA jurisdiction will be administered in the
same manner as it has been in those States where the 2015 Rule has been
enjoined and as it was for many years prior to the promulgation of the
2015 Rule. To be clear, the agencies are not finalizing a revised
definition of ``waters of the United States'' in this specific
rulemaking different from the definition that existed immediately prior
to the 2015 Rule. The agencies also are not finalizing this rule in
order to fill a regulatory gap because no such gap exists today. See 83
FR 5200, 5204. Rather, the agencies solely repeal the 2015 amendments
to the above-referenced portions of the CFR and recodify the pre-
existing regulatory text as it existed immediately prior to the 2015
Rule's amendments.
The agencies recognize that approved jurisdictional determinations
(AJDs) issued under the 2015 Rule could potentially be affected by this
final rule. An AJD is a document issued by the Corps stating the
presence or absence 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 before the expiration date or a District Engineer identifies
specific geographic areas with rapidly changing environmental
conditions that merit re-verification on a more frequent basis. See
U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 05-02,
Sec. 1(a), p. 1 (June 2005) (RGL 05-02). Additionally, the possessor
of a valid AJD may request the Corps reassess a parcel and grant a new
AJD before the five-year expiration date. An AJD constitutes final
agency action pursuant to the agencies' definition of ``waters of the
United States'' at the time of its issuance, see Hawkes, 136 S. Ct. at
1814, and therefore, this final rule does not invalidate an AJD that
was issued under the 2015 Rule. As such, an AJD issued
[[Page 56665]]
under the 2015 Rule will remain valid until its expiration date unless
one of the criteria for revision is met under RGL 05-02, or the
recipient of such an AJD requests a new AJD be issued under the pre-
2015 regulations and guidance pursuant to this final rule. Preliminary
jurisdictional determinations (PJDs), however, are merely advisory in
nature, make no legally binding determination of jurisdiction, and have
no expiration date. See 33 CFR 331.2; see also U.S. Army Corps of
Engineers, Regulatory Guidance Letter No. 16-01 (October 2005). As
such, PJDs are unaffected by this final rule because they do not
definitively state whether there are ``waters of the United States'' on
a parcel. See Hawkes, 136 S. Ct. at 1812. However, as with AJDs, a
recipient of a PJD issued under the 2015 Rule may request a new PJD be
issued under the pre-2015 regulations and guidance.
The agencies note that repealing the 2015 Rule and restoring the
pre-existing regulatory definition of ``waters of the United States''
does not affect the scope of waters that the Corps retains in States
that have assumed the CWA section 404 dredged or fill material permit
program, or the waters the Corps would retain should States and Tribes
assume the program in the future. When States or Tribes assume
administration of the section 404 program, the Corps retains
administration of permits in certain waters. 33 U.S.C. 1344(g). The
scope of CWA jurisdiction as defined by ``waters of the United States''
is entirely distinct from the scope of waters over which the Corps
retains authority following State or tribal assumption of the section
404 program. The retained waters are identified during approval of a
State or tribal section 404 program and any modifications are approved
through a formal EPA process. 40 CFR 233.36. The way in which the Corps
identifies waters to be retained was most recently addressed on July
30, 2018, in a memorandum from R.D. James, Assistant Secretary of the
Army (Civil Works).\58\ The EPA also intends to clarify the issue in a
separate ongoing rulemaking process designed to facilitate State and
tribal assumption of the section 404 program.
---------------------------------------------------------------------------
\58\ The memorandum is available at https://www.army.mil/e2/c/downloads/525981.pdf.
---------------------------------------------------------------------------
The agencies proposed a revised definition of ``waters of the
United States'' on February 14, 2019, see 84 FR 4154, as the second
step of the comprehensive two-step process consistent with the
Executive Order signed on February 28, 2017, ``Restoring the Rule of
Law, Federalism, and Economic Growth by Reviewing the `Waters of the
United States Rule.' '' The agencies proposed to interpret the term
``waters of the United States'' to encompass: Traditional navigable
waters, including the territorial seas; tributaries that contribute
perennial or intermittent flow to such waters; certain ditches; certain
lakes and ponds; impoundments of otherwise jurisdictional waters; and
wetlands adjacent to other jurisdictional waters. The public comment
period for the proposed revised definition of ``waters of the United
States'' closed on April 15, 2019, and the agencies are reviewing and
considering approximately 620,000 comments they received. If finalized,
the revised definition of ``waters of the United States'' will replace
the regulations that the agencies are finalizing in this notice.
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review
This action is an economically significant regulatory action that
was submitted to the Office of Management and Budget (OMB) for review.
Any changes made in response to OMB recommendations have been
documented in the docket.
While the economic analysis is informative in the rulemaking
context, the agencies are not relying on the economic analysis
performed pursuant to Executive Orders 12866 and 13563 and related
procedural requirements as a basis for this final rule. See, e.g.,
NAHB, 682 F.3d at 1039-40 (noting that the quality of an agency's
economic analysis can be tested under the APA if the ``agency decides
to rely on a cost-benefit analysis as part of its rulemaking'').
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Cost
This rule is an Executive Order 13771 deregulatory action. Details
on the estimated cost savings of this rule can be found in the economic
analysis in the docket for this rule.
C. Paperwork Reduction Act
This rule does not impose any new information collection burdens
under the Paperwork Reduction Act.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
conduct a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small governmental jurisdictions.
The repeal of the 2015 Rule and recodification of the prior
regulations is a deregulatory action because the 2015 Rule exceeded the
agencies' statutory authority. This action avoids the imposition of
potentially significant adverse economic impacts on small entities in
the future. Details on the estimated cost savings of this rule can be
found in the economic analysis published with this rule. Accordingly,
after considering the potential economic impacts of the final rule on
small entities, we certify that this action will not have a significant
economic impact on a substantial number of small entities.
E. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), signed into law on March 22, 1995, an agency must prepare a
budgetary impact statement to accompany any proposed or final rule that
includes a federal mandate that may result in estimated cost to State,
local, or tribal governments in the aggregate, or to the private
sector, of $100 million or more. Under section 205 of the UMRA, the
agency must select the most cost-effective and least burdensome
alternative that achieves the objectives of the rule and is consistent
with statutory requirements. Section 203 requires the agency to
establish a plan for informing and advising any small governments that
may be significantly or uniquely impacted by the rule. This action does
not contain any unfunded mandate as described in the UMRA and does not
significantly or uniquely affect small governments. The definition of
``waters of the United States'' applies broadly to CWA programs. The
action imposes no enforceable duty on any State, local, or tribal
governments, or the private sector, and does not contain regulatory
requirements that significantly or uniquely affect small governments.
F. Executive Order 13132: Federalism
Executive Order 13132 requires the agencies to develop an
accountable process to ensure ``meaningful and timely input by state
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct
[[Page 56666]]
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.'' Under
Executive Order 13132, the agencies may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local government, or the agencies consult
with State and local officials early in the process of developing the
proposed regulation. The agencies also may not issue a regulation that
has federalism implications and that preempts state law unless the
agencies consult with State and local officials early in the process of
developing the proposed regulation.
This final rule will not have substantial direct effects on the
States, on the relationship between the national government and States,
or on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
returns the relationship between the Federal government and the States
to the longstanding and familiar distribution of power and
responsibilities established in the CWA for many years prior to the
2015 Rule. Thus, the requirements of section 6 of the Executive Order
do not apply to this final rule.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, Nov. 9, 2000), requires
the agencies to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. This final
rule will not have substantial direct effects on tribal governments, on
the relationship between the Federal government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes, because it returns the relationship
between the Federal government and the Tribes to the longstanding and
familiar distribution of power and responsibilities that existed under
the CWA for many years prior to the 2015 Rule. Thus, Executive Order
13175 does not apply to this final rule. Consistent with Executive
Order 13175, however, the agencies have consulted with tribal
officials, as appropriate, as part of the separate rulemaking on a
proposed revised definition of ``waters of the United States.'' As part
of the tribal consultation process for the proposed revised definition,
some Tribes commented on this rulemaking to repeal the 2015 Rule and
restore the pre-existing regulations, including in letters to the
agencies and during outreach and consultations meetings.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, Apr. 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that an agency has reason to
believe may have a disproportionate effect on children. If the
regulatory action meets both criteria, the agency must evaluate the
environmental health or safety effects of the planned rule on children,
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the agency. This rule is not subject to Executive Order 13045
because it does not involve decisions intended to mitigate
environmental health or safety risks.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy.
J. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
of 1995 requires federal agencies to evaluate existing technical
standards when developing a new regulation. This rule does not involve
technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
This final rule repealing the 2015 Rule and recodifying the pre-
2015 regulations currently in effect in those States where the 2015
Rule is enjoined will maintain the longstanding regulatory framework
that was in place nationwide for many years prior to the promulgation
of the 2015 Rule. The agencies therefore believe that this action does
not have disproportionately high and adverse human health or
environmental effects on minority, low-income populations, and/or
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629,
Feb. 16, 1994).
L. Congressional Review Act (``CRA'')
This action is subject to the CRA, and the agencies will submit a
rule report to each House of the Congress and to the Comptroller
General of the United States. OMB has concluded that it is a ``major
rule'' as defined by 5 U.S.C. 804(2).
List of Subjects
33 CFR Part 328
Environmental protection, Administrative practice and procedure,
Navigation (water), Water pollution control, Waterways.
40 CFR Part 110
Environmental protection, Oil pollution, Reporting and
recordkeeping requirements.
40 CFR Part 112
Environmental protection, Oil pollution, Penalties, Reporting and
recordkeeping requirements.
40 CFR Part 116
Environmental protection, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 117
Environmental protection, Hazardous substances, Penalties,
Reporting and recordkeeping requirements, Water pollution control.
40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 230
Environmental protection, Water pollution control.
40 CFR Part 232
Environmental protection, Intergovernmental relations, Water
pollution control.
[[Page 56667]]
40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Natural resources, Occupational safety and health, Oil pollution,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.
40 CFR Part 302
Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Natural resources, Reporting and recordkeeping requirements, Superfund,
Water pollution control, Water supply.
40 CFR Part 401
Environmental protection, Waste treatment and disposal, Water
pollution control.
Dated: September 12, 2019.
Andrew R. Wheeler,
Administrator, Environmental Protection Agency.
Dated: September 5, 2019.
R.D. James,
Assistant Secretary of the Army (Civil Works).
Title 33--Navigation and Navigable Waters
For the reasons set out in the preamble, title 33, chapter II of
the Code of Federal Regulations is amended as follows:
PART 328--DEFINITION OF WATERS OF THE UNITED STATES
0
1. The authority citation for part 328 is revised to read as follows:
Authority: 33 U.S.C. 1344.
0
2. Section 328.3 is amended by revising paragraphs (a) through (e) and
adding paragraph (f) to read as follows:
Sec. 328.3 Definitions.
* * * * *
(a) The term waters of the United States means
(1) All waters which are currently used, or were used in the past,
or may be susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could affect interstate or
foreign commerce including any such waters:
(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 purpose by
industries in interstate commerce;
(4) All impoundments of waters otherwise defined as waters of the
United States under the definition;
(5) Tributaries of waters identified in paragraphs (a)(1) through
(4) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (a)(1) through (6) of
this section.
(8) Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other Federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
Waste treatment systems, including treatment ponds or lagoons
designed to meet the requirements of 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.
(b) The term wetlands means those areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.
(c) The term adjacent means bordering, contiguous, or neighboring.
Wetlands separated from other waters of the United States by man-made
dikes or barriers, natural river berms, beach dunes and the like are
``adjacent wetlands.''
(d) The term high tide line means the line of intersection of the
land with the water's surface at the maximum height reached by a rising
tide. The high tide line may be determined, in the absence of actual
data, by a line of oil or scum along shore objects, a more or less
continuous deposit of fine shell or debris on the foreshore or berm,
other physical markings or characteristics, vegetation lines, tidal
gages, or other suitable means that delineate the general height
reached by a rising tide. The line encompasses spring high tides and
other high tides that occur with periodic frequency but does not
include storm surges in which there is a departure from the normal or
predicted reach of the tide due to the piling up of water against a
coast by strong winds such as those accompanying a hurricane or other
intense storm.
(e) The term ordinary high water mark means that line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as clear, natural line impressed on the bank,
shelving, changes in the character of soil, destruction of terrestrial
vegetation, the presence of litter and debris, or other appropriate
means that consider the characteristics of the surrounding areas.
(f) The term 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.
Title 40--Protection of Environment
For reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 110--DISCHARGE OF OIL
0
3. The authority citation for part 110 is revised to read as follows:
Authority: 33 U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O.
11735, 38 FR 21243, 3 CFR Parts 1971-1975 Comp., p. 793.
0
4. Section 110.1 is amended by revising the definition of ``Navigable
waters'' and adding the definition of ``Wetlands'' in alphabetical
order to read as follows:
Sec. 110.1 Definitions.
* * * * *
Navigable waters means the waters of the United States, including
the territorial seas. The term includes:
(a) All waters that are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters that are subject to the ebb and flow of the tide;
(b) Interstate waters, including interstate wetlands;
(c) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, and wetlands,
the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce including any such waters:
[[Page 56668]]
(1) That are or could be used by interstate or foreign travelers
for recreational or other purposes;
(2) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce;
(3) That are used or could be used for industrial purposes by
industries in interstate commerce;
(d) All impoundments of waters otherwise defined as navigable
waters under this section;
(e) Tributaries of waters identified in paragraphs (a) through (d)
of this section, including adjacent wetlands; and
(f) Wetlands adjacent to waters identified in paragraphs (a)
through (e) of this section: Provided, That waste treatment systems
(other than cooling ponds meeting the criteria of this paragraph) are
not waters of the United States;
Navigable waters 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.
* * * * *
Wetlands means those areas that are inundated or saturated by
surface or ground water at a frequency or 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 playa lakes, swamps, marshes, bogs and
similar areas such as sloughs, prairie potholes, wet meadows, prairie
river overflows, mudflats, and natural ponds.
PART 112 --OIL POLLUTION PREVENTION
0
5. The authority citation for part 112 is revised to read as follows:
Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.
0
6. Section 112.2 is amended by revising the definition of ``Navigable
waters'' and adding the definition of ``Wetlands'' in alphabetical
order to read as follows:
Sec. 112.2 Definitions.
* * * * *
Navigable waters of the United States means ``navigable waters'' as
defined in section 502(7) of the FWPCA, and includes:
(1) All navigable waters of the United States, as defined in
judicial decisions prior to passage of the 1972 Amendments to the FWPCA
(Pub. L. 92-500), and tributaries of such waters;
(2) Interstate waters;
(3) Intrastate lakes, rivers, and streams which are utilized by
interstate travelers for recreational or other purposes; and
(4) Intrastate lakes, rivers, and streams from which fish or
shellfish are taken and sold in interstate commerce.
* * * * *
Wetlands means those areas that are inundated or saturated by
surface or groundwater at a frequency or 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 playa lakes, swamps, marshes, bogs, and
similar areas such as sloughs, prairie potholes, wet meadows, prairie
river overflows, mudflats, and natural ponds.
* * * * *
PART 116--DESIGNATION OF HAZARDOUS SUBSTANCES
0
7. The authority citation for part 116 is revised to read as follows:
Authority: Secs. 311(b)(2)(A) and 501(a), Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.).
0
8. Section 116.3 is amended by revising the definition of ``Navigable
waters'' to read as follows:
Sec. 116.3 Definitions.
* * * * *
Navigable waters is defined in section 502(7) of the Act to mean
``waters of the United States, including the territorial seas,'' and
includes, but is not limited to:
(1) All waters which are presently used, or were used in the past,
or may be susceptible to use as a means to transport interstate or
foreign commerce, including all waters which are subject to the ebb and
flow of the tide, and including adjacent wetlands; the term wetlands as
used in this regulation shall include 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 prevelance of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs and
similar areas; the term adjacent means bordering, contiguous or
neighboring;
(2) Tributaries of navigable waters of the United States, including
adjacent wetlands;
(3) Interstate waters, including wetlands; and
(4) All other waters of the United States such as intrastate lakes,
rivers, streams, mudflats, sandflats and wetlands, the use, degradation
or destruction of which affect interstate commerce including, but not
limited to:
(i) Intrastate lakes, rivers, streams, and wetlands which are
utilized by interstate travelers for recreational or other purposes;
and
(ii) Intrastate lakes, rivers, streams, and wetlands from which
fish or shellfish are or could be taken and sold in interstate
commerce; and
(iii) Intrastate lakes, rivers, streams, and wetlands which are
utilized for industrial purposes by industries in interstate commerce.
Navigable waters 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.
* * * * *
PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS
SUBSTANCES
0
9. The authority citation for part 117 is revised to read as follows:
Authority: Secs. 311 and 501(a), Federal Water Pollution Control
Act (33 U.S.C. 1251 et seq.), (``the Act'') and Executive Order
11735, superseded by Executive Order 12777, 56 FR 54757.
0
10. Section 117.1 is amended by revising paragraph (i) to read as
follows:
Sec. 117.1 Definitions.
* * * * *
(i) Navigable waters means ``waters of the United States, including
the territorial seas.'' This term includes:
(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) Interstate waters, including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams,
(including intermittent streams), mudflats, sandflats, and wetlands,
the use, degradation or destruction of which would affect 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;
(ii) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce;
[[Page 56669]]
(iii) Which are used or could be used for industrial purposes by
industries in interstate commerce;
(4) All impoundments of waters otherwise defined as navigable
waters under this paragraph;
(5) Tributaries of waters identified in paragraphs (i)(1) through
(4) of this section, including adjacent wetlands; and
(6) Wetlands adjacent to waters identified in paragraphs (i)(1)
through (5) of this section (``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 included playa lakes,
swamps, marshes, bogs, and similar areas such as sloughs, prairie
potholes, wet meadows, prairie river overflows, mudflats, and natural
ponds): Provided, That waste treatment systems (other than cooling
ponds meeting the criteria of this paragraph) are not waters of the
United States.
Navigable waters 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.
* * * * *
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
0
11. The authority citation for part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
0
12. Section 122.2 is amended by:
0
a. Lifting the suspension of the last sentence of the definition of
``Waters of the United States'' published July 21, 1980 (45 FR 48620).
0
b. Revising the definition of ``Waters of the United States''.
0
c. Suspending the last sentence of the definition of ``Waters of the
United States'' published July 21, 1980 (45 FR 48620).
0
d. Adding the definition of ``Wetlands''.
The revision and addition read as follows:
Sec. 122.2 Definitions.
* * * * *
Waters of the United States or waters of the U.S. means:
(a) 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;
(b) All interstate waters, including interstate ``wetlands;''
(c) 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 affect or could
affect interstate or foreign commerce including any such waters:
(1) Which are or could be used by interstate or foreign travelers
for recreational or other purposes;
(2) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
(3) Which are used or could be used for industrial purposes by
industries in interstate commerce;
(d) All impoundments of waters otherwise defined as waters of the
United States under this definition;
(e) Tributaries of waters identified in paragraphs (a) through (d)
of this definition;
(f) The territorial sea; and
(g) ``Wetlands'' adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (a) through (f) of this
definition.
Waste 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. 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. [See Note 1 of this
section.] 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.
Wetlands means those areas that are inundated or saturated by
surface or groundwater at a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas.
* * * * *
PART 230--SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF
DISPOSAL SITES FOR DREDGED OR FILL MATERIAL
0
13. The authority citation for part 230 is revised to read as follows:
Authority: Secs. 404(b) and 501(a) of the Clean Water Act of
1977 (33 U.S.C. 1344(b) and 1361(a)).
0
14. Section 230.3 is amended by:
0
a. Redesignating paragraph (o) as paragraph (s).
0
b. Revising newly redesignated paragraph (s).
0
c. Redesignating paragraph (n) as paragraph (r).
0
d. Redesignating paragraph (m) as paragraph (q-1).
0
e. Redesignating paragraphs (h) through (l) as paragraphs (m) through
(q).
0
f. Redesignating paragraphs (e) and (f) as paragraphs (h) and (i).
0
g. Redesignating paragraph (g) as paragraph (k).
0
h. Redesignating paragraphs (b) through (d) as paragraphs (c) through
(e).
0
i. Adding reserved paragraphs (f), (g), (j), and (l).
0
j. Adding paragraphs (b) and (t).
The revision and additions read as follows:
Sec. 230.3 Definitions.
* * * * *
(b) The term adjacent means bordering, contiguous, or neighboring.
Wetlands separated from other waters of the United States by man-made
dikes or barriers, natural river berms, beach dunes, and the like are
``adjacent wetlands.''
* * * * *
(s) The term waters of the United States means:
(1) All waters which are currently used, or were used in the past,
or may be susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could affect interstate or
foreign commerce including any such waters:
[[Page 56670]]
(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 (s)(1) through
(4) of this section;
(6) The territorial sea;
(7) Wetlands adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (s)(1) through (6) of
this section; waste 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.
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.
(t) The term 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.
PART 232--404 PROGRAMS DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING
404 PERMITS
0
15. The authority citation for part 232 is revised to read as follows:
Authority: 33 U.S.C. 1344.
0
16. Section 232.2 is amended by revising the definition of ``Waters of
the United States'' and adding the definition of ``Wetlands'' to read
as follows:
Sec. 232.2 Definitions.
* * * * *
Waters of the United States means:
All waters which are currently used, were used in the past, or may
be susceptible to us in interstate or foreign commerce, including all
waters which are subject to the ebb and flow of the tide.
All interstate waters including interstate wetlands.
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:
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.
All impoundments of waters otherwise defined as waters of the
United States under this definition;
Tributaries of waters identified in paragraphs (g)(1)-(4) of this
section;
The territorial sea; and
Wetlands adjacent to waters (other than waters that are themselves
wetlands) identified in paragraphs (q)(1)-(6) of this section.
Waste treatment systems, including treatment ponds or lagoons
designed to meet the requirements of the Act (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.
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.
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.
PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION
CONTINGENCY PLAN
0
17. The authority citation for part 300 is revised to read as follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
13626, 77 FR 56749, 3 CFR, 2013 Comp., p.306; E.O. 12777, 56 FR
54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987
Comp., p.193.
0
18. Section 300.5 is amended by revising the definition of ``Navigable
waters'' to read as follows:
Sec. 300.5 Definitions.
* * * * *
Navigable waters as defined by 40 CFR 110.1, means the waters of
the United States, including the territorial seas. The term includes:
(1) All waters that are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters that are subject to the ebb and flow of the tide;
(2) Interstate waters, including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, and wetlands,
the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce including any such waters;
(i) That are or could be used by interstate or foreign travelers
for recreational or other purposes;
(ii) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce;
(iii) That are used or could be used for industrial purposes by
industries in interstate commerce;
(4) All impoundments of waters otherwise defined as navigable
waters under this section;
(5) Tributaries of waters identified in paragraphs (a) through (d)
of this definition, including adjacent wetlands; and
(6) Wetlands adjacent to waters identified in paragraphs (a)
through (e) of this definition: Provided, that waste treatment systems
(other than cooling ponds meeting the criteria of this paragraph) are
not waters of the United States.
(7) 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.
* * * * *
0
19. In appendix E to part 300, section 1.5 is amended by revising the
definition of ``Navigable waters'' to read as follows:
Appendix E to Part 300--Oil Spill Response
* * * * *
[[Page 56671]]
1.5 Definitions. * * *
Navigable waters as defined by 40 CFR 110.1 means the waters of the
United States, including the territorial seas. The term includes:
(a) All waters that are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters that are subject to the ebb and flow of the tide;
(b) Interstate waters, including interstate wetlands;
(c) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, and wetlands,
the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce including any such waters:
(1) That are or could be used by interstate or foreign travelers
for recreational or other purposes;
(2) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; and
(3) That are used or could be used for industrial purposes by
industries in interstate commerce.
(d) All impoundments of waters otherwise defined as navigable
waters under this section;
(e) Tributaries of waters identified in paragraphs (a) through (d)
of this definition, including adjacent wetlands; and
(f) Wetlands adjacent to waters identified in paragraphs (a)
through (e) of this definition: Provided, that waste treatment systems
(other than cooling ponds meeting the criteria of this paragraph) are
not waters of the United States.
(g) 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.
* * * * *
PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION
0
20. The authority citation for part 302 continues to read as follows:
Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and
1361.
0
21. Section 302.3 is amended by revising the definition of ``Navigable
waters'' to read as follows:
Sec. 302.3 Definitions.
* * * * *
Navigable waters or navigable waters of the United States means
waters of the United States, including the territorial seas;
* * * * *
PART 401--GENERAL PROVISIONS
0
22. The authority citation for part 401 is revised to read as follows:
Authority: Secs. 301, 304 (b) and (c), 306 (b) and (c), 307 (b)
and (c) and 316(b) of the Federal Water Pollution Control Act, as
amended (the ``Act''), 33 U.S.C. 1251, 1311, 1314 (b) and (c), 1316
(b) and (c), 1317 (b) and (c) and 1326(c); 86 Stat. 816 et seq.;
Pub. L. 92-500.
0
23. Section 401.11 is amended by revising paragraph (l) to read as
follows:
Sec. 401.11 General definitions.
* * * * *
(l) The term navigable waters includes: All navigable waters of the
United States; tributaries of navigable waters of the United States;
interstate waters; intrastate lakes, rivers, and streams which are
utilized by interstate travelers for recreational or other purposes;
intrastate lakes, rivers, and streams from which fish or shellfish are
taken and sold in interstate commerce; and intrastate lakes, rivers,
and streams which are utilized for industrial purposes by industries in
interstate commerce. Navigable waters 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.
* * * * *
[FR Doc. 2019-20550 Filed 10-21-19; 8:45 am]
BILLING CODE 6560-50-P