[Federal Register Volume 90, Number 222 (Thursday, November 20, 2025)]
[Proposed Rules]
[Pages 52498-52546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-20402]
[[Page 52497]]
Vol. 90
Thursday,
No. 222
November 20, 2025
Part II
Department of Defense
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Department of the Army, Corps of Engineers
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Environmental Protection Agency
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33 CFR Part 328
40 CFR Part 120
Updated Definition of ``Waters of the United States''; Proposed Rule
Federal Register / Vol. 90, No. 222 / Thursday, November 20, 2025 /
Proposed Rules
[[Page 52498]]
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 120
[EPA-HQ-OW-2025-0322; FRL 11132.1-01-OW]
RIN 2040-AG44
Updated Definition of ``Waters of the United States''
AGENCY: Department of the Army, Corps of Engineers, Department of
Defense; and Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) and the U.S.
Department of the Army (``the agencies'') are publishing for public
comment a proposed rule revising the regulations defining the scope of
waters federally covered under the Federal Water Pollution Control Act,
as amended, also known as the Clean Water Act, in light of the U.S.
Supreme Court's 2023 decision in Sackett v. Environmental Protection
Agency. With this proposed rule, the agencies intend to provide greater
regulatory certainty and increase Clean Water Act program
predictability and consistency by clarifying the definition of ``waters
of the United States.'' This proposed rule is also intended to
implement the overall objective of the Clean Water Act to restore and
maintain the quality of the Nation's waters while respecting State and
Tribal authority over their own land and water resources.
DATES: Comments must be received on or before January 5, 2026.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2025-0322, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Email: [email protected]. Include Docket ID No. EPA-HQ-OW-
2025-0322 in the subject line of the message.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460.
Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m.,
Monday-Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov, including personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
The agencies will hold two hybrid public meetings, and additional
information can be found at https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities. Refer to the SUPPLEMENTARY
INFORMATION section below for additional information.
FOR FURTHER INFORMATION CONTACT: Stacey Jensen, Oceans, Wetlands and
Communities Division, Office of Water (4504-T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: (202) 566-0657; email address: [email protected], and
Milton Boyd, Office of the Assistant Secretary of the Army for Civil
Works, Department of the Army, 108 Army Pentagon, Washington, DC 20310-
0104; telephone number: (703) 693-3655; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Major Provisions of the Regulatory Action
C. Costs and Benefits
II. Public Participation
A. Written Comments
B. Participation in Virtual and In-Person Public Meetings
III. General Information
A. What action are the Agencies taking?
B. What is the Agencies' authority for taking this action?
C. What are the incremental cost savings and forgone benefits of
this action?
IV. Background
A. Legal Background
1. History of Federal Waterways Regulation
2. The Federal Water Pollution Control Act
3. U.S. Supreme Court Decisions
B. The Agencies' Rules and Regulatory Regimes
1. Pre-2015 Regulatory Regime (Prior to Sackett)
2. The 2020 Navigable Waters Protection Rule
3. January 2023 Rule
4. Conforming Rule
5. Current Applicable Regulatory Regimes
6. March 12, 2025, ``Continuous Surface Connection'' Guidance
C. WOTUS Notice and Summary of Stakeholder Outreach
1. Relatively Permanent Waters
2. Continuous Surface Connection
3. Ditches
4. Implementation
5. Additional Feedback Including Further Exclusions
V. Proposed Revised Definition
A. Basis of the Proposed Rule
B. Interstate Waters
1. Basis for Eliminating as an Independent Basis for
Jurisdiction
C. Relatively Permanent Waters
1. Definition and Scope of ``Relatively Permanent'' Waters
2. Basis for the Proposed Definition
3. Alternative Approaches
4. Definition of ``Tributary''
5. Implementation
a. Implementation of ``Relatively Permanent''
b. Implementation of Tributaries
D. ``Continuous Surface Connection''
1. Definition and Scope of ``Continuous Surface Connection''
2. Basis for the Proposed Definition
3. Alternative Approaches
4. Implementation of Adjacent Wetlands
E. Lakes and Ponds Assessed Under Paragraph (a)(5)
1. Deletion of ``Intrastate''
2. Alternative Approaches
3. Implementation
F. Exclusions From the Definition of ``Waters of the United
States''
1. The Paragraph (b)(1) Waste Treatment System Exclusion and
Paragraph (c)(11) Definition of ``Waste Treatment System''
a. The Agencies' Proposed Revisions to the Waste Treatment
System Exclusion
b. Basis for the Proposed Definition
c. Alternative Approaches
d. Implementation of the Waste Treatment System Exclusion
2. Definition of ``Prior Converted Cropland'' Under Paragraph
(c)(7) and Scope of the (b)(2) Prior Converted Cropland Exclusion
a. Basis for the Proposed Definition
b. Alternative Approaches
c. Implementation of the Prior Converted Cropland Exclusion
3. Definition of ``Ditch'' and Scope of the (b)(3) Ditch
Exclusion
a. Basis for the Proposed Definition
b. Alternative Approaches
c. Implementation of Ditch Exclusion
4. The Paragraph (b)(9) Groundwater Exclusion
a. Basis for the Proposed Exclusion
b. Implementation of Groundwater Exclusion
G. Publicly Available Jurisdictional Information and Permit Data
H. Severability
VI. Supporting Information
A. Regulatory Impact Analysis
B. Children's Health
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order
[[Page 52499]]
13563: Improving Regulation and Regulatory Review
B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risk
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act
I. Executive Summary
A. Purpose of the Regulatory Action
The U.S. Environmental Protection Agency (EPA) and the U.S.
Department of the Army (Army) (together, the agencies) are seeking
public comment on a proposed rule that revises key aspects of the
definition of ``waters of the United States'' to clarify the scope of
Federal jurisdiction under the Federal Water Pollution Control Act, as
amended, also known as the Clean Water Act, in light of the U.S.
Supreme Court's May 25, 2023, decision in Sackett v. Environmental
Protection Agency, 598 U.S. 651 (2023).
In September 2023, the agencies issued a final rule without notice
and comment amending the regulations defining ``waters of the United
States'' to conform to the Supreme Court's Sackett decision. ``Revised
Definition of `Waters of the United States'; Conforming,'' 88 FR 61964
(September 8, 2023) (``Conforming Rule''). The agencies refer to the
amended regulations following the Conforming Rule as the ``Amended 2023
Rule'' because the Conforming Rule amended regulations previously
issued on January 18, 2023. See ``Revised Definition of `Waters of the
United States,' '' 88 FR 3004 (January 18, 2023).
The agencies have heard numerous concerns raised by stakeholders
about the Amended 2023 Rule, including that the Amended 2023 Rule does
not adequately comply with the Supreme Court's interpretation in
Sackett of the scope of Federal jurisdiction under the Act as well as
identifying implementation-related issues. With this action, the
agencies are proposing to revise the Amended 2023 Rule to implement the
Sackett decision, provide greater regulatory certainty, and increase
Clean Water Act program predictability and consistency by clarifying
the definition of ``waters of the United States.''
The agencies' fundamental basis for this proposed revised
definition is the text, structure, and history of the Clean Water Act
and Supreme Court precedent, taking into account other relevant
factors. This proposed revision to the definition of ``waters of the
United States'' is intended to adhere faithfully to the Supreme Court's
direction, respect the Act's careful balance between Federal authority
and State responsibilities over waters, and carry out Congress' overall
objectives to restore and maintain the integrity of the Nation's waters
in a manner that preserves the traditional sovereignty of States over
their own land and water resources pursuant to the cooperative
federalism framework predicated by the Act. The agencies believe the
proposed revised definition would also ensure clarity and
predictability for Federal agencies, States, Tribes, the regulated
community, and the public, including by proposing to add definitions of
``relatively permanent'' and ``continuous surface connection'' for the
first time to the agencies' regulations and by re-establishing
definitions for ``ditch,'' ``tributary,'' ``prior converted cropland,''
and ``waste treatment system'' to ensure clear boundaries that indicate
the distinction of Federal versus State and Tribal coverage of waters.
Ultimately, the proposed rule is intended to ensure that the agencies
are operating within the scope of the Federal Government's authority
over navigable waters under the Clean Water Act and the Commerce Clause
of the U.S. Constitution.
B. Summary of the Major Provisions of the Regulatory Action
The agencies are proposing to revise the following categories of
``waters of the United States'' under 33 CFR 328.3 and 40 CFR 120.2
paragraph (a) by deleting the interstate waters category under
paragraph (a)(1)(iii) and deleting ``intrastate'' from the paragraph
(a)(5) category for lakes and ponds. In addition, ministerial changes
are proposed to add in one place and delete in another place an ``or''
from paragraph (a)(1) to conform to the deletion of the interstate
waters category. In addition, the agencies are proposing to revise the
following exclusions: the (b)(1) waste treatment system exclusion, the
(b)(2) prior converted cropland exclusion, and the (b)(3) ditch
exclusion. The agencies are also proposing to add an exclusion for
groundwater at (b)(9). The agencies are also proposing to add
definitions of ``continuous surface connection,'' ``ditch,'' ``prior
converted cropland,'' ``relatively permanent,'' ``tributary,'' ``and
waste treatment system'' in paragraph (c) of their regulations.
C. Costs and Benefits
Potential costs and benefits would be incurred as a result of
actions taken under existing Clean Water Act programs (i.e., sections
303, 311, 401, 402, and 404) that implement and follow this proposed
rulemaking. Entities currently are, and would continue to be, regulated
under these programs that rely on the definition of ``waters of the
United States'' under the Clean Water Act.
The agencies prepared the Regulatory Impact Analysis for the
Proposed Rule Updated Definition of Waters of the United States
(``Regulatory Impact Analysis for the Proposed Rule''), available in
the rulemaking docket, for informational purposes to analyze the
potential cost savings and forgone benefits associated with this
proposed action. The agencies analyzed the potential cost savings and
forgone benefits against the baseline of the Amended 2023 Rule. The
analysis is summarized in section VI of this preamble.
II. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2025-
0322, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at https://www.regulations.gov any information you consider to
be Confidential Business Information (CBI), Proprietary Business
Information (PBI), or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e., on the web, cloud, or
other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA
public comment policy; information about CBI, PBI, or multimedia
submissions; and general guidance on making effective comments.
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B. Participation in Virtual and In-Person Public Meetings
The agencies will hold two in-person public meetings, with an
option for virtual participation. To register to speak at the public
meetings, please visit https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities or contact EPA staff at [email protected]. On the last working day before each meeting, EPA will
post a general agenda for the meeting that will list pre-registered
speakers in approximate order at https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities.
The agencies will make every effort to follow the schedule as
closely as possible on the day of the public meeting; however, please
plan for the meetings to run either ahead of schedule or behind
schedule. Additionally, requests to speak will be taken the day of the
meeting at the meeting registration desk for those participating in-
person and during the speaker waitlist for those participating
virtually. EPA and the Army will make every effort to accommodate all
speakers who arrive and register, although preferences on speaking
times may not be able to be fulfilled.
Each commenter will have three minutes to provide oral testimony.
EPA and the Army encourage commenters to provide the agencies with a
copy of their oral testimony electronically by emailing it to [email protected]. EPA and the Army also recommend submitting the text
of your oral comments as written comments to the rulemaking docket.
The agencies may ask clarifying questions during the oral
presentations but will not respond to the presentations at that time.
Written statements and supporting information submitted during the
comment period will be considered with the same weight as oral comments
and supporting information presented at the public meeting.
Please note that any updates made to any aspect of the public
meetings are posted online at https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities. While EPA and the Army
expect the meetings to go forward as set forth above, please monitor
our website or contact [email protected] to determine if there are
any updates. EPA and the Army do not intend to publish a document in
the Federal Register announcing updates.
The agencies will not provide audiovisual equipment for
presentations unless we receive special requests in advance. Commenters
should notify [email protected] when they pre-register to speak
that they will need specific equipment. If you require the services of
an interpreter or special accommodations such as audio description,
please pre-register for the meeting with [email protected] and
describe your needs by at least one week before the meeting. The
agencies may not be able to arrange accommodations without advance
notice.
III. General Information
A. What action are the Agencies taking?
In this action, the agencies are publishing a proposed rule
revising key aspects of the definition of ``waters of the United
States'' in 33 CFR 328.3 and 40 CFR 120.2.
B. What is the Agencies' authority for taking this action?
The authority for this action is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including sections 301, 304, 311,
401, 402, 404, and 501.
C. What are the incremental cost savings and forgone benefits of this
action?
The Regulatory Impact Analysis for the Proposed Rule assesses the
potential impacts of the changes to the definition of ``waters of the
United States'' based on the potential effects to Clean Water Act
programs that rely on the definition of ``waters of the United
States.'' The Regulatory Impact Analysis is the agencies' qualitative
assessment of the potential effects of the revised definition on the
Federal coverage of waters and water resources, including wetlands,
across the country, as well as the potential effects on Clean Water Act
programs and certain other programs under other Federal statutes. The
Regulatory Impact Analysis also provides snapshots of the applicable
regulatory and legal framework currently in place in States and some
Tribes to provide context for how aquatic resources outside of Federal
jurisdiction are covered under State and Tribal laws and regulations.
The agencies anticipate that the impacts of the proposed rule, as a
result of implementing the Sackett decision, would be most significant
for the Clean Water Act section 404 program, reducing the number of 404
permits issued and acres of wetland impacts mitigated relative to the
baseline. The agencies expect the changes to produce cost savings to
project proponents from avoided permitting and mitigation activities,
as well as potential indirect benefits from long-term reduction in
regulatory burden. The agencies also expect forgone benefits from
avoided impact minimization and mitigation measures. Notably, both the
potential cost savings and forgone benefits are contingent on a number
of factors, including decisions by States with respect to areas that
would fall solely within State or Tribal and local jurisdiction. The
agencies are considering methods to estimate the changes in the number
of 404 permits issued by the U.S. Army Corps of Engineers (Corps) and
the characteristics of the projects, notably the magnitude of wetland
impacts that would no longer be minimized and mitigated, for the final
rule Regulatory Impact Analysis. The agencies welcome input as to how
this could be accomplished, for example, using geospatial analysis and
Corps permit data. To estimate cost savings and forgone benefits for
the final rule, the agencies could use similar methodologies to those
used in previous economic analyses. In addition to direct burden
reductions, small entities may also see benefits from this proposed
rulemaking as the agencies anticipate increased opportunities and
shorter delays for approved jurisdictional determinations (AJDs) for
projects still requiring a permit due to less demand for AJDs and
clearer regulatory language.
The agencies expect the proposed rule to be deregulatory in nature,
and to have cost savings and forgone benefits. However, the agencies
have not quantified cost savings and forgone benefits for the purposes
of this proposed rule (see the Regulatory Impact Analysis for the
Proposed Rule for information on uncertainties associated with the
available data). The agencies seek input on ways that they could
address any uncertainties, on other data relevant to cost savings and
forgone benefits of the proposed rule, and on opportunities for
quantification. The agencies identify potential data and propose
potential methodologies to quantify such costs and benefits in the
Regulatory Impact Analysis. Specifically, the agencies highlight
potential approaches to quantitatively estimate the impact of the
proposed rule through changes to coverage of interstate waters,
relatively permanent waters, continuous surface connection, lakes and
ponds, and to exclusions for waste treatment systems, prior converted
cropland, and ditches. At present, the agencies do not have sufficient
information available to quantify all of the cost savings and forgone
benefits that individual States or Tribes would receive under the
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proposed rule. Although some States and Tribes already have laws or
regulations in place that exceed the requirements of the current
regulation and/or of the proposed rule, the way States or Tribes would
interpret and apply their own laws and regulations is unknown. Further,
the extent to which States and Tribes may enact new laws or regulations
or alter their interpretations of existing laws and regulations in the
future is also unknown. Consequently, the agencies invite comment to
assess what proportion of cost savings and forgone benefits States and
Tribes would receive.
Importantly, while the potential cost savings or forgone benefits
of the rule inform the agencies' interpretation of the definition of
``waters of the United States,'' they cannot dictate where to draw the
line between Federal and State or Tribal waters, as those are legal
distinctions that have been established within the overall framework
and construct of the Clean Water Act. The agencies therefore do not
view the results of the Regulatory Impact Analysis as dictating the
proper interpretation of ``waters of the United States.'' In previous
rules the agencies have considered impacts as a factor in defining the
scope of ``waters of the United States.'' The agencies now recognize
that, as the Supreme Court explained in Sackett, ``the CWA does not
define the EPA's jurisdiction based on ecological importance'' or
similar impacts. 598 U.S. at 683. Rather, the impacts of faithfully
implementing the statute's jurisdictional reach are a result of ``the
Act's allocation of authority'' between the Federal Government and the
States, and States, Tribes, and localities ``can and will continue to
exercise their primary authority to combat water pollution by
regulating land and water use.'' Id. The agencies seek comment on the
view that impacts are not an appropriate decisional basis in
implementing the Act's jurisdictional scope and, if so, on what basis
and to what extent the agencies may consider such impacts.
IV. Background
A. Legal Background
1. History of Federal Waterways Regulation
Congress' authority to regulate navigable waters derives from its
Commerce Clause power over the channels of interstate commerce. See
Solid Waste Agency of Northern Cook Cnty v. Army Corps of Eng'rs, 531
U.S. 159, 168 & n.3, 172, 173-174 (2001) (SWANCC). Navigable waterways
facilitating interstate and international commerce were understood at
the Founding as an important asset worthy of protection and promotion.
See Ordinance of 1787, Sec. 14, art. IV (``The navigable waters
leading into the Mississippi and Saint Lawrence, and the carrying
places between the same, shall be common highways.''); The Federalist
No. 2, at 6 (John Jay) (Gideon Ed., Carey & McClellan eds. 2001)
(``Providence has in a particular manner blessed [the Nation] . . .
with innumerable streams, for the delight and accommodation of its
inhabitants. A succession of navigable waters forms a kind of chain
round its borders, as if to bind it together; while the most noble
rivers in the world, running at convenient distances, present them with
highways for the easy communication of friendly aids, and the mutual
transportation and exchange of their various commodities.''), No. 14,
at 65 (James Madison) (``[T]he intercourse throughout the union will be
daily facilitated by new improvements. . . . The communication between
the western and Atlantic districts, and between different parts of
each, will be rendered more and more easy, by those numerous canals,
with which the beneficence of nature has intersected our country, and
which art finds it so little difficult to connect and complete.'').
Consistent with that understanding, early authorities embraced the
concept that waterways used in navigation were subject to Federal
regulation while, at the same time, States continued to exercise
sovereign prerogative to regulate water and land within their borders.
Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 218, 240 (1824); see Sackett,
598 U.S. at 673 (``Ever since Gibbons v. Ogden, this Court has used
`waters of the United States' to refer to similar bodies of water,
almost always in relation to ships.'').
Navigability remained the lodestar of Federal authority over water
regulation for most of our Nation's history prior to the Clean Water
Act. See Gibbons, 9 Wheat. (22 U.S.) at 193, 203 (the Commerce Clause
``has been always understood to comprehend, navigation within its
meaning,'' but did not encompass ``[i]nspection laws, quarantine laws,
health laws . . . [or] laws for regulating the internal commerce of a
State''). Even as States shifted away from common-law nuisance suits
against polluters, ``federal regulation was largely limited to ensuring
that `traditional navigable waters'--that is, interstate waters that
were either navigable in fact and used in commerce or readily
susceptible of being used in this way--remained free of impediments.''
Sackett, 598 U.S. at 659. In other words, Federal power traditionally
encompassed navigable waters capable of being used ``as a highway for
interstate or foreign commerce [and] Congress could regulate such
waters only for purposes of their navigability.'' Id. at 694 (Thomas,
J., concurring).
The navigability of United States waterways--and the extent of
Congress' authority to regulate them--has been the subject of extensive
litigation before the U.S. Supreme Court. In early cases, the Court
held that the term ``navigable'' refers to waters that are ``navigable
in fact,'' meaning that ``they are used, or are susceptible of being
used, in their ordinary condition, as highways for commerce, over which
trade and travel are or may be conducted in the customary modes of
trade and travel on water.'' Daniel Ball, 10 Wall. (77 U.S.) 557, 563
(1871). Over time, the Court also recognized that Federal authority
could extend to waterways susceptible to navigation through
improvements that facilitated modern navigation. In The Montello, for
example, the Court held that waterways were susceptible to navigation,
and thus Federal authority, based on their ``capability of use by the
public for purposes of transportation and commerce'' through
improvement. 20 Wall. (87 U.S.) 430, 441-42 (1874). At the same time,
not ``every small creek in which a fishing skiff or gunning canoe can
be made to float at high water'' fell within this ambit; rather, ``to
give it the character of a navigable stream, it must be generally and
commonly useful to some purpose of trade.'' Id. Thus, Federal
``authority over navigable waters'' extended to `` `regulating and
improving navigation.' '' Sackett, 598 U.S. at 688 (Thomas, J.,
concurring) (quoting Gibson v. United States, 166 U.S. 269, 271-72
(1897)).
After the Supreme Court found that no Federal law banned
obstructions of navigable waterways, see Willamette Iron Bridge Co. v.
Hatch, 125 U.S. 1 (1888), Congress responded by enacting the Rivers and
Harbors Act of 1899 (RHA). Section 10 of the RHA prohibits ``[t]he
creation of any obstruction . . . to the navigable capacity of any of
the waters of the United States,'' requires a permit to build
``structures in any . . . water of the United States,'' and makes it
unlawful ``to excavate or fill, or in any manner to alter or modify the
course, location, condition, or capacity'' of any water, ``within the
limits of any breakwater, or of the channel of any navigable water of
the United States.'' 33 U.S.C. 403. Section 13 of the RHA,
[[Page 52502]]
often called the Refuse Act, made it illegal to dump refuse ``into any
navigable waters of the United States, or into any tributary of any
navigable water,'' and gave the Corps the authority to regulate certain
discharges into navigable waters of the United States. Id.; 33 U.S.C.
407. In interpreting the RHA, the Supreme Court reaffirmed the
principle that Federal authority over waters arose from navigability
and that States may continue to exercise their traditional authority
over land and water.\1\
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\1\ The Corps currently defines the scope of ``navigable waters
of the United States'' under the RHA as encompassing ``those waters
that are subject to the ebb and flow of the tide and/or are
presently used, or have been used in the past, or may be susceptible
for use to transport interstate or foreign commerce.'' 33 CFR 329.4.
This definition does not apply to the scope of ``waters of the
United States'' under the Clean Water Act. See 33 CFR 329.1.
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Over time, the Federal Government began applying the RHA, and the
Refuse Act in particular, to regulate pollution that interfered with
the navigable waters of the United States. See, e.g., United States v.
Standard Oil, 384 U.S. 224 (1966) (holding commercially valuable
substances such as oil could be considered refuse); United States v.
Republic Steel Corp., 362 U.S. 482 (1960) (holding industrial solid
waste is refuse); see also SWANCC, 531 U.S. at 178 (Stevens, J.,
dissenting) (``the goals of federal water regulation began to shift
away from an exclusive focus on protecting navigability and toward a
concern for preventing environmental degradation.''). Federal
regulators sought to adopt an ex ante permitting scheme for discharges,
but courts held that the Refuse Act provided insufficient authority.
See, e.g., Kalur v. Resor, 335 F. Supp. 1, 10-11 (D.D.C. 1972). When
these concerns and others prompted Congress to further legislative
action, ``a comprehensive program for controlling and abating water
pollution'' was born. SWANCC, 531 U.S. at 179 (Stevens, J., dissenting)
(quoting Train v. City of New York, 420 U.S. 35, 37 (1975)).
2. The Federal Water Pollution Control Act
Prior to 1972, the ability to control and redress water pollution
in the Nation's waters largely fell to the Corps under the 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.'' \2\ 33 U.S.C. 407.
Congress had enacted the Water Pollution Control Act of 1948, Public
Law 80-845, 62 Stat. 1155 (June 30, 1948), to address interstate water
pollution, and subsequently amended that statute in 1956 (giving the
statute its current formal name), 1961, and 1965. The early versions of
the Act 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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\2\ The term ``navigable water of the United States'' is a term
of art used to refer to waters subject to Federal jurisdiction under
the RHA. See, e.g., 33 CFR 329.1. The term is not synonymous with
the phrase ``waters of the United States'' under the Clean Water
Act, 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, 565 U.S. 576,
591-93 (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) by amending the Federal Water Pollution Control Act,
also known as the Clean Water Act, 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.\3\
That restructuring resulted in the enactment of a comprehensive scheme
(including voluntary as well as regulatory programs) designed to
prevent, reduce, and eliminate pollution in the Nation's waters
generally, and to regulate the discharge of pollutants into ``navigable
waters'' specifically, defined in the Act as ``the waters of the United
States, including the territorial seas,'' 33 U.S.C. 1362(7). See, e.g.,
S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 385 (2006)
(noting that ``the Act does not stop at controlling the `addition of
pollutants,' but deals with `pollution' generally'').
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\3\ Following amendments in 1972 and 1977, the Federal Water
Pollution Control Act became more commonly referred to as the Clean
Water Act. See Public Law 92-500, 86 Stat. 816 (1972); Public Law
95-217, 91 Stat. 1566 (1977). In this document, for ease of
reference, the agencies will generally refer to the Act as the Clean
Water Act or the Act.
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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. 1251(a)(1)-(2). Congress also established
several key policies that direct the work of the agencies to effectuate
those goals. For example, Congress declared as a national policy ``that
the discharge of toxic pollutants in toxic amounts be prohibited; . . .
that Federal financial assistance be provided to construct publicly
owned waste treatment works; . . . that areawide waste treatment
management planning processes be developed and implemented to assure
adequate control of sources of pollutants in each State; . . . [and]
that programs for the control of nonpoint sources of pollution be
developed and implemented in an expeditious manner so as to enable the
goals of this Act to be met through the control of both point and
nonpoint sources of pollution.'' Id. 1251(a)(3)-(7).
Congress recognized that States retained primary authority over the
regulation of water and land within their borders and, at the same
time, provided a major role for the States in implementing the Clean
Water Act. 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. 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. 1370.\4\
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\4\ 33 U.S.C. 1370 also prohibits authorized States from
adopting any limitations, prohibitions, or standards that are less
stringent than required by the Clean Water Act.
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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.
1362(19), in keeping with the objective of the Act ``to restore and
[[Page 52503]]
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' Id. 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,'' authorizes the 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.'' Id.
1255(a)(1) (emphasis added). Section 105 also authorizes the EPA ``to
make grants to any State or States or interstate agency to demonstrate,
in river basins or portions thereof, advanced treatment and
environmental enhancement techniques to control pollution from all
sources . . . including nonpoint sources, . . . [and] . . . to carry
out the purposes of section 301 of this Act . . . for research and
demonstration projects for prevention of pollution of any waters by
industry including, but not limited to, the prevention, reduction, and
elimination of the discharge of pollutants.'' Id. 1255(b)-(c) (emphasis
added); see also id. 1256(a) (authorizing the 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,'' authorizes
the 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.'' 33 U.S.C. 1258(a) (emphasis
added); see also id. 1268(a)(3)(C) (defining the ``Great Lakes System''
as ``all the streams, rivers, lakes, and other bodies of water within
the drainage basin of the Great Lakes'') (emphasis added). Similar
broad pollution control programs were created for other major
watersheds, including, for example, the Chesapeake Bay, see id.
1267(a)(3), Long Island Sound, see id. 1269(c)(2)(D), and Lake
Champlain, see id. 1270(g)(2).
In addition to the Act's non-regulatory measures to control
pollution of the Nation's waters generally, Congress created a
permitting program designed to address the discharge of pollutants into
a subset of those waters identified as ``navigable waters.'' Id.
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. 1311(a). A ``discharge of a pollutant'' is defined
to include ``any addition of any pollutant to navigable waters from any
point source,'' defined to mean ``any discernible, confined and
discrete conveyance'' such as a pipe or ditch. Id. 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. 1362(6). Thus, it is
unlawful to discharge pollutants into the ``waters of the United
States'' from a point source unless the discharge is in compliance with
certain enumerated sections of the Clean Water Act. Under section 402
of the Clean Water Act, a National Pollutant Discharge Elimination
System (NPDES) permit is required where a point source discharges a
pollutant to ``waters of the United States.'' \5\ Id. 1342. Clean Water
Act section 404 requires a permit before dredged or fill material may
be discharged to ``waters of the United States,'' with exemptions for
certain activities, including normal farming, ranching, and forestry
activities.\6\ Id. 1344. Congress therefore intended 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.''
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\5\ The term ``point source'' is defined in Clean Water Act
section 502(14) and 40 CFR 122.2 to include ``any discernible,
confined and discrete conveyance . . . from which pollutants are or
may be discharged.'' This definition specifically excludes return
flows from irrigated agriculture and agricultural stormwater runoff.
See also infra note 8 (discussing discharges of pollutants subject
to the section 402 program).
\6\ Clean Water Act section 404(f) exempts several activities
from the section 404 permitting requirement including many ``normal
farming, silviculture, and ranching activities'' and the
``construction or maintenance of farm or stock ponds or irrigation
ditches, or the maintenance of drainage ditches.'' 33 U.S.C.
1344(f)(1).
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Fundamental principles of statutory interpretation support this
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
Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365,
371 (1988) (``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 Clean
Water Act 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 and a
Federal regulatory prohibition on the discharge of pollutants to the
``navigable waters.'' If Congress had intended the terms to be
synonymous, it would have used identical terminology. Instead, Congress
chose to use separate terms, and the agencies are instructed by the
Supreme Court to presume Congress did so intentionally. See Sackett,
598 U.S. at 661, 673 (recognizing distinction between a predecessor
statute's definition of ``interstate or navigable waters'' and the
Act's definition of ``navigable waters''); 674 (``It is hard to see how
the States' role in regulating water resources would remain `primary'
if the EPA had jurisdiction over anything defined by the presence of
water.'').
The term ``navigable waters'' is used in most of the key programs
established by the Clean Water Act, including the section 402 and
section 404 permitting programs; the section 311 oil spill prevention,
preparedness, and response program; \7\ the water quality standards,
[[Page 52504]]
impaired waters, and total maximum daily load programs under section
303; and the section 401 State and Tribal water quality certification
process. See additional discussion on ``navigable waters'' supra.
Waters that meet the definition of ``waters of the United States'' are
often called ``covered'' or ``jurisdictional'' waters. While there is
only one definition of ``waters of the United States'' for purposes of
the Clean Water Act, there may be other contextual factors that define
the reach of a particular Clean Water Act program or provision.\8\
Additionally, as noted above, some Clean Water Act programs do not rely
on the definition of ``waters of the United States,'' such as the EPA's
financial assistance programs under the Act.\9\
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\7\ While Clean Water Act section 311 uses the phrase
``navigable waters of the United States,'' EPA has interpreted it to
have the same breadth as the phrase ``navigable waters'' used
elsewhere in section 311, and in other sections of the Clean Water
Act. See United States v. Texas Pipe Line Co., 611 F.2d 345, 347
(10th Cir. 1979); United States v. Ashland Oil & Transp. Co., 504
F.2d 1317, 1324-25 (6th Cir. 1974). In 2002, EPA revised its
regulations defining ``waters of the United States'' in 40 CFR part
112 to ensure that the rule's language was consistent with the
regulatory language used in other Clean Water Act programs. Oil
Pollution Prevention & Response; Non-Transportation-Related Onshore
& Offshore Facilities, 67 FR 47042 (July 17, 2002). A district court
vacated the rule for failure to comply with the Administrative
Procedure Act and reinstated the prior regulatory language. Am.
Petroleum Inst. v. Johnson, 541 F. Supp. 2d 165 (D.D.C. 2008).
However, EPA interprets ``navigable waters of the United States'' in
Clean Water Act section 311(b), in both the pre-2002 regulations and
the 2002 rule, to have the same meaning as ``navigable waters'' in
Clean Water Act section 502(7).
\8\ For example, the Clean Water Act section 402 permit program
regulates discharges of pollutants from ``point sources'' to
``navigable waters'' whether the pollutants reach jurisdictional
waters directly or indirectly. See United States v. Rapanos, 547
U.S. 715, 743 (2006) (Scalia, J., plurality opinion); see also Cnty.
of Maui v. Hawaii Wildlife Fund, 590 U.S. 165, 183-84 (2020)
(holding that the statute also requires a permit ``when there is the
functional equivalent of a direct discharge''). Section 402 also
regulates ``any addition of any pollutant to the waters of the
contiguous zone or the ocean from any point source other than a
vessel or other floating craft.'' See 33 U.S.C. 1362(12). As another
example, section 311 applies to ``discharges of oil or hazardous
substances into or upon the navigable waters of the United States,
adjoining shorelines, or into or upon the waters of the contiguous
zone, or in connection with activities under the Outer Continental
Shelf Lands Act [43 U.S.C. 1331 et seq.] or the Deepwater Port Act
of 1974 [33 U.S.C. 1501 et seq.], or which may affect natural
resources belonging to, appertaining to, or under the exclusive
management authority of the United States (including resources under
the Magnuson-Stevens Fishery Conservation and Management Act [16
U.S.C. 1801 et seq.]).'' Id. 1321(b)(1). And section 404(g)
authorizes EPA to approve State and Tribal assumption of the section
404 dredged and fill permitting programs for certain waters of the
United States; the Federal Government retains permitting authority
over discharges into waters used as a means to transport interstate
or foreign commerce. Id. 1344(g).
\9\ For example, with respect to the Clean Water Act sections
106 and 319 grant programs, the authorizing language and the range
of programmatic activities are sufficiently broad such that they
have long addressed both jurisdictional and non-jurisdictional
waters, so it is unlikely that a change in the definition of
``waters of the United States'' would affect those programs and
funding allocations.
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Since the Federal Water Pollution Control Act Amendments of 1972,
the agencies have defined the scope of jurisdictional ``navigable
waters'' or ``waters of the United States'' in regulations. See section
IV.B of this preamble, infra, for an overview of the history of the
agencies' regulations defining ``waters of the United States.'' Most
recently, the agencies issued a revised definition of ``waters of the
United States'' in January 2023 that was then amended in September 2023
in light of the Supreme Court's Sackett decision. ``Revised Definition
of `Waters of the United States,' '' 88 FR 3004 (January 18, 2023)
(``2023 Rule''); ``Revised Definition of `Waters of the United States';
Conforming,'' 88 FR 61964, 61968 (September 8, 2023) (``Conforming
Rule''); see sections IV.B.3, IV.B.4, and IV.B.5 of this preamble,
infra, for more information about these actions. The agencies refer to
the 2023 Rule as amended by the Conforming Rule as the ``Amended 2023
Rule.''
The EPA administers the Clean Water Act except as otherwise
explicitly provided. 33 U.S.C. 1251(d). The Secretary of the Army,
through the Corps, has authority to issue permits for the discharge of
dredged or fill material pursuant to Clean Water Act section 404. Id.
1344. The United States Attorney General long ago determined that the
``ultimate administrative authority to determine the reach of the term
`navigable waters' for purposes of Sec. 404'' resides with the EPA.
Administrative Authority to Construe Sec. 404 of the Federal Water
Pollution Control Act, 43 Op. Att'y Gen. 197 (1979) (``Civiletti
Memorandum''). The Act enables the Federal Government to implement
certain Clean Water Act programs, and it gives direct grants of
authority to States and authorized Tribes for implementation and
enforcement of others.
In some cases, the Act provides States the option to administer
certain Clean Water Act programs.\10\ For example, States implement the
Clean Water Act section 401 water quality certification program and may
request approval from the EPA to administer a Clean Water Act section
402 or 404 permitting program. Moreover, consistent with the Act,
States and Tribes retain authority to implement their own programs to
protect the waters in their jurisdiction more broadly and more
stringently than the Federal Government. Section 510 of the Clean Water
Act stipulates that, unless expressly stated, nothing in the Act
precludes or denies the right of any State or Tribe to establish more
protective standards or limits than the Act.\11\
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\10\ The Clean Water Act defines ``State'' as ``a State, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and the Trust Territory of the Pacific Islands.''
33 U.S.C. 1362(3).
\11\ Congress has provided for eligible Tribes to administer
Clean Water Act programs over their reservations and expressed a
preference for Tribal regulation of surface water quality on
reservations to ensure compliance with the goals of the statute. See
33 U.S.C. 1377; 56 FR 64876, 64878-79 (December 12, 1991). Where
appropriate, references to States in this preamble may also include
eligible Tribes.
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Under the enacted statutory scheme under Clean Water Act section
303, the States are primarily responsible for developing water quality
standards for ``waters of the United States'' within their borders and
reporting on the condition of those waters to the 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 the EPA for approval under
section 303(d). Id. 1313(d). Section 303(d) applies to ``waters of the
United States.'' Non-jurisdictional waterbodies are not required to be
assessed or otherwise identified as impaired. Total maximum daily loads
likewise apply only to ``waters of the United States.'' Id. 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 under
section 401. Id. 1341. The definition of ``waters of the United
States'' affects where Federal permits and licenses are required and
thus where Clean Water Act section 401 certification applies.
These same regulatory authorities can be assumed by Tribes under
section 518 of the Clean Water Act, which authorizes the EPA to treat
eligible Tribes with reservations in a manner similar to States for a
variety of purposes, including administering each of the principal
Clean Water Act regulatory programs.\12\ Id. 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 Clean Water
Act. See, e.g., id. 1251(b), 1251(g), 1370, 1377(a). Currently, all
States and 83 Tribes have authority to implement section 401 water
quality certification programs. All States and 53 Tribes have
established water quality standards pursuant to section 303 of the
Clean Water Act, which form a legal basis for limitations on discharges
of pollutants to ``waters of the United States.'' At this time, 47
States and one Territory have authority
[[Page 52505]]
to administer all or portions of the Clean Water Act section 402 permit
program for those ``waters of the United States'' within their
boundaries.\13\ To date, three States (Florida, Michigan, and New
Jersey) have been approved to administer an authorized section 404
permit program for certain waters in their boundaries pursuant to
section 404(g),\14\ with two States (New Jersey and Michigan) actively
administering such programs. At present, no Tribes administer the
section 402 or 404 programs, although at least one is exploring the
possibility. For additional information regarding State and Tribal
programs, see the Regulatory Impact Analysis for the proposed rule.
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\12\ Tribes must apply for and receive EPA approval to be
eligible for treatment in a manner similar as a State (TAS) for each
Clean Water Act program they wish to administer.
\13\ Three States (Massachusetts, New Hampshire, and New Mexico)
do not currently administer any part of the Clean Water Act section
402 program.
\14\ When a State or eligible Tribe assumes a section 404
program, the Corps retains permitting authority over certain waters.
The scope of Clean Water Act jurisdiction as defined by ``waters of
the United States'' is distinct from the scope of waters over which
the Corps retains authority following State or Tribal assumption of
the section 404 program. Corps-retained waters are identified during
approval of a State or Tribal section 404 program, and any
modifications are approved through a formal process. 40 CFR
233.11(i), 233.14(b)(4), and 233.16. This proposed rulemaking does
not address the scope of Corps-retained waters, and nothing in this
proposed rulemaking should be interpreted to affect the process for
determining the scope of Corps-retained waters.
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Clean Water Act section 311 and the Oil Pollution Act of 1990
authorize the Oil Spill Liability Trust Fund (OSLTF) to pay for or
reimburse costs of assessing and responding to oil spills to ``waters
of the United States'' or adjoining shorelines or the Exclusive
Economic Zone.\15\ The OSLTF enables an immediate response to a spill,
including containment, countermeasures, cleanup, and disposal
activities. The OSLTF can only reimburse States and Tribes for cleanup
costs and damages to businesses and citizens (e.g., lost wages and
damages) for spills affecting waters subject to Clean Water Act
jurisdiction. EPA also lacks authority under the Clean Water Act to
take enforcement actions based on spills solely affecting waters not
subject to Clean Water Act jurisdiction under section 311(b). Moreover,
section 311 requires that EPA establish an oil spill prevention program
``to prevent discharges of oil and hazardous substances from vessels
and from onshore facilities and offshore facilities, and to contain
such discharges.'' 33 U.S.C. 1321. Discharges of pollutants, such as
oil and hazardous substances, are defined, as discussed above, as ``any
addition of any pollutant to navigable waters [i.e., `waters of the
United States'] from any point source.'' Id. at 1362(12).
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\15\ See 33 U.S.C. 1321(b) for the full jurisdictional scope of
Clean Water Act section 311.
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The scope of facilities required to prepare oil spill prevention
and response plans is also affected by the definition of ``waters of
the United States.'' EPA-regulated oil storage facilities with storage
capacities greater than 1,320 gallons (except facilities located on
farms) that have a reasonable expectation of an oil discharge to
``waters of the United States'' or adjoining shorelines \16\ are
required to prepare and implement spill prevention plans. High-risk oil
storage facilities that meet certain higher storage thresholds and
related harm factors are required to prepare and submit oil spill
preparedness plans to EPA for review. The U.S. Coast Guard and
Department of Transportation also require oil spill response plans
under their respective authorities. However, section 311 spill
prevention and preparedness plan requirements do not apply to a
facility if there is no reasonable expectation that an oil discharge
from that facility could reach a jurisdictional water or adjoining
shoreline or the Exclusive Economic Zone.
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\16\ See supra note 7.
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It is important to note that just because a water meets the
definition of ``waters of the United States'' does not imply that
activities such as farming, construction, infrastructure development,
or resource extraction cannot take place in or near that water. For
example, the Clean Water Act exempts a number of activities from
permitting or from the definition of ``point source,'' including
agricultural storm water and irrigation return flows. See 33 U.S.C.
1342(l)(2), 1362(14). Moreover, since 1977, the Clean Water Act in
section 404(f) has exempted activities such as many ``normal farming,
silviculture, and ranching activities'' from the section 404 permitting
requirement, including seeding, harvesting, cultivating, planting, and
soil and water conservation practices. Id. 1344(f)(1). This proposed
rulemaking would not affect these statutory exemptions.
In addition, permits are routinely issued under Clean Water Act
sections 402 and 404 to authorize certain discharges to ``waters of the
United States.'' Further, under both permitting programs, the agencies
have established general permits for categories of activities that are
similar in nature. General permits provide dischargers with knowledge
about applicable requirements before dischargers may obtain coverage
under them. Obtaining coverage under a general permit is typically
quicker than obtaining coverage under an individual permit, with
coverage under a general permit often occurring immediately (depending
on how the permit is written) or after a short review period. The
permitting authority \17\ generally works with permit applicants to
ensure that activities can occur consistent with the agencies'
regulations. Thus, the permitting programs allow for discharges to
``waters of the United States'' to occur while also ensuring that those
discharges meet statutory and regulatory requirements designed to
protect water quality.\18\
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\17\ Generally, the permitting authority is either EPA or an
authorized State for the NPDES program and either the Corps or an
authorized State for the section 404 program. No eligible Tribes
have requested authority to administer a Clean Water Act section 402
or section 404 program at this time.
\18\ Regarding section 404 permits, the Corps or authorized
State works with the applicant to avoid, minimize, and compensate
for any unavoidable impacts to ``waters of the United States.'' For
most discharges that ``will cause only minimal adverse environmental
effects,'' a general permit (e.g., a ``nationwide'' permit) may be
suitable. 33 U.S.C. 1344(e)(1). General permits are issued on a
nationwide, regional, or State basis for particular categories of
activities. While some general permits require the applicant to
submit a pre-construction notification to the Corps or the State,
others allow the applicant to proceed with no formal notification.
The general permit process allows certain activities to proceed with
little or no delay, provided the general or specific conditions for
the general permit are met.
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A jurisdictional determination is ``a written Corps determination
that a wetland and/or waterbody is subject to regulatory jurisdiction
under Section 404 of the Clean Water Act (33 U.S.C. 1344) or a written
determination that a waterbody is subject to regulatory jurisdiction
under Section 9 or 10 of the Rivers and Harbors Act of 1899 (33 U.S.C.
401 et seq.).'' 33 CFR 331.2. Jurisdictional determinations are
identified as either preliminary or approved. An approved
jurisdictional determination (AJD) is ``a Corps document stating the
presence or absence of waters of the United States on a parcel or a
written statement and map identifying the limits of waters of the
United States on a parcel.'' Id. An approved jurisdictional
determination is administratively appealable and is a final agency
action subject to judicial review. U.S. Army Corps of Eng'rs v. Hawkes
Co., Inc., 578 U.S. 590 (2016). AJDs are valid for five years from the
date of issuance, unless new information warrants revision of the
determination before the expiration date. Regulatory Guidance Letter
(RGL) 05-02 (June 14, 2005). Applicants may also request a new AJD
before the five-year expiration date.
[[Page 52506]]
The agencies have consistently maintained that AJDs and permits
issued under a previous regulatory definition of ``waters of the United
States'' would still be considered valid and would not necessarily be
reopened due to a subsequent rule change, unless requested by the
landowner or applicant. See, e.g., 84 FR 56626, 56664 (October 22,
2019) (2019 Repeal Rule); 85 FR 22250, 22331-32 (April 21, 2020)
(NWPR).\19\
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\19\ An applicant or landowner may believe the permit includes
conditions that are no longer required if this proposed rulemaking
were to be finalized. If requested, the agencies stand ready to
assist the applicant or landowner, consistent with regulatory
requirements and prior practice.
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A preliminary jurisdictional determination (PJD) is a non-binding
``written indication that there may be waters of the United States on a
parcel or indications of the approximate location(s) of waters of the
United States on a parcel.'' 33 CFR 331.2. An applicant can elect to
use a PJD to voluntarily waive or set aside questions regarding Clean
Water Act jurisdiction over a particular site and thus move forward
assuming that all waters will be treated as jurisdictional without the
Corps making a formal determination. The Corps does not charge a fee
for these jurisdictional determinations. See id. 325.1 (omitting
mention of fees for jurisdictional determinations); Regulatory Guidance
Letter 16-01 (2016) (stating that such determinations are issued as a
``public service'').
3. U.S. Supreme Court Decisions
From the earliest rulemaking efforts following adoption of the 1972
Federal Water Pollution Control Act amendments, to the agencies' most
recent attempt to define ``waters of the United States'' in 2023, the
agencies' definition and interpretation of their regulations has
spurred substantial litigation testing the meaning of the phrase.
Hundreds of cases and dozens of courts have attempted to discern the
intent of Congress when crafting the phrase. See, e.g., Sackett, 598
U.S. at 664-59 (summarizing history); Rapanos v. United States, 547
U.S. 715, 739 (2006) (Scalia, J., plurality opinion) (same); see also
discussion supra of history of Federal waterways regulation in section
1.A.
As part of this complex litigation history, several key U.S.
Supreme Court decisions have contributed to the agencies'
interpretation of the phrase ``waters of the United States'' in the
proposed rule. See discussion of early interpretations of ``navigable
waters'' and ``waters of the United States'' supra in section 1.A. The
agencies note that, in the first instance, the Court has long
interpreted the term ``navigable waters'' to mean waters used in
interstate commerce. See, e.g., Daniel Ball, 10 Wall. (77 U.S.) at 563;
The Montello, 20 Wall. (87 U.S.) at 441-42. The Court has also used the
phrase ``waters of the United States'' in this context for centuries to
mean ``similar bodies of water, almost always in relation to ships.''
Sackett, 598 U.S. at 673 (quoting Gibbons, 9 Wheat. (22 U.S.) at 218).
As discussed in section IV.A.2 of this preamble, enactment of the
Federal Water Pollution Control Act expanded the scope of Federal
jurisdiction over waters from what was covered under the RHA. Yet as
the Supreme Court emphasized in Sackett, Federal jurisdiction under the
Clean Water Act is not unlimited. The agencies' proposal is intended to
appropriately limit the scope of Federal authority consistent with the
centuries-old boundaries of Congress' Commerce Clause authority. See
Sackett, 598 U.S. at 704 (Thomas, J., concurring).
In 1985, the Supreme Court deferred to the Corps' assertion of
jurisdiction over wetlands actually abutting a traditional navigable
water in Michigan, stating that adjacent wetlands may be regulated as
``waters of the United States'' because ``in the majority of cases''
they have ``significant effects on water quality and the aquatic
ecosystem'' in those waters. United States v. Riverside Bayview Homes,
474 U.S. 121, 135 n.9 (1985). The Court recognized that ``[i]n
determining the limits of its power to regulate discharges under the
Act, the Corps must necessarily choose some point at which water ends
and land begins . . . Where on this continuum to find the limit of
`waters' is far from obvious.'' Id. at 132. The Court acknowledged the
``inherent difficulties of defining precise bounds to regulable waters,
'' and recognized that ``wetlands adjacent to lakes, rivers, streams,
and other bodies of water may function as integral parts of the aquatic
environment . . .'' Id. at 135. The Court also ``conclude[d] that a
definition of `waters of the United States' encompassing all wetlands
adjacent to other bodies of water over which the Corps has jurisdiction
is a permissible interpretation of the Act.'' Id.
The Supreme Court again addressed the definition of ``waters of the
United States'' in SWANCC by rejecting a claim of Federal jurisdiction
over nonnavigable, isolated, intrastate ponds that lack a sufficient
connection to traditional navigable waters, noting that the term
``navigable'' must be given meaning within the context and application
of the statute. 531 U.S. at 172. The Court held that interpreting the
statute to extend to nonnavigable, isolated, intrastate ponds that lack
a sufficient connection to traditional navigable waters would invoke
the outer limits of Congress' power under the Commerce Clause. Id. The
SWANCC Court found that Congress' ``use of the phrase `waters of the
United States' '' in the Clean Water Act is not ``a basis for reading
the term `navigable waters' out of the statute.'' Id. Where an
administrative interpretation of a statute presses against the outer
limits of Congress' constitutional authority, the Court explained, it
expects a clear statement from Congress that it intended that result,
and even more so when the broad interpretation authorizes Federal
encroachment upon a traditional State power. Id. at 172-73. The Clean
Water Act contains no such clear statement that Congress intended
Federal jurisdiction to extend to the abandoned sand and gravel pit at
issue. Id. at 174.
In January 2003, the EPA and the Corps issued joint guidance
interpreting the Supreme Court decision in SWANCC.\20\ The guidance
indicated that SWANCC focused on nonnavigable, isolated, intrastate
waters, and called for field staff to coordinate with their respective
Corps or EPA Headquarters on jurisdictional determinations that
asserted jurisdiction over such waters. The agencies at that time
focused their interpretation of SWANCC to its facts, and applied the
decision narrowly as restricting the exercise of Federal jurisdiction
solely based on the Migratory Bird Rule.
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\20\ See U.S. EPA and U.S. Army Corps of Engineers. Legal
Memoranda Regarding Solid Waste Agency of Northern Cook County
(SWANCC) v. United States (January 15, 2003), available at https://www.epa.gov/sites/production/files/2016-04/documents/swancc_guidance_jan_03.pdf.
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In 2006, the Supreme Court interpreted the term ``waters of the
United States'' in Rapanos v. United States, 547 U.S. 715 (2006). In
Rapanos, the Supreme Court consolidated appeals of two Sixth Circuit
cases, United States v. Rapanos, 235 F.3d 256 (6th Cir. 2000) and
Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004),
in which the Clean Water Act had been applied to wetlands located near
man-made ditches that were ultimately connected to traditional
navigable waters. All members of the Court agreed that the term
``waters of the United States'' encompasses some waters that are not
navigable in the traditional sense. Rapanos, 547 U.S. at 731 (Scalia,
J., plurality opinion) (``We have twice stated that the meaning of
`navigable waters' in the Act is broader than the traditional
understanding of that term,
[[Page 52507]]
SWANCC, 531 U.S. at 167; Riverside Bayview, 474 U.S. at 133.'').
A four-Justice plurality in Rapanos interpreted the term ``waters
of the United States'' to ``include[ ] only those relatively permanent,
standing or continuously flowing bodies of water `forming geographic
features' that are described in ordinary parlance as `streams[,] . . .
oceans, rivers, [and] lakes,' '' id. at 739 (Scalia, J., plurality
opinion) (quoting Webster's New International Dictionary 2882 (2d ed.
1954)), and ``wetlands with a continuous surface connection'' to a
``relatively permanent body of water connected to traditional
interstate navigable waters.'' Id. at 742. The plurality explained that
``[w]etlands with only an intermittent, physically remote hydrologic
connection to `waters of the United States' do not implicate the
boundary-drawing problem of Riverside Bayview,'' and thus do not have
the ``necessary connection'' to covered waters that triggers Clean
Water Act jurisdiction. Id. at 742. The plurality also noted that its
reference to ``relatively permanent'' waters did ``not necessarily
exclude streams, rivers, or lakes that might dry up in extraordinary
circumstances, such as drought,'' or ``seasonal rivers, which contain
continuous flow during some months of the year but no flow during dry
months.'' Id. at 732 n.5 (emphasis in original). The plurality said
that ``adjacent'' means ``physically abutting,'' and used ``abutting''
and ``adjacent'' interchangeably. Id. at 748; see also id. at 742
(``Riverside Bayview rested upon the inherent ambiguity in defining
where water ends and abutting (``adjacent'') wetlands begin[.]''). The
plurality clarified that ``the statutory definition [of `navigable
waters' at 33 U.S.C. 1362(7)] can be read to include some wetlands--
namely, those that directly `abut' covered waters.'' Id. at 747 n.12
(emphasis in original). The plurality also explained how its standard
for Clean Water Act jurisdiction remained consistent with the Court's
precedent interpreting ``waters of the United States,'' including
Riverside Bayview. See id. at 734-35, 740-42, 746-48 (Scalia, J.,
plurality opinion).
In a concurring opinion, Justice Kennedy took a different approach,
concluding that ``to constitute `` `navigable waters' '' under the Act,
a water or wetland must possess a `significant nexus' to waters that
are or were navigable in fact or that could reasonably be so made.''
Id. at 759 (Kennedy, J., concurring in the judgment) (citing SWANCC,
531 U.S. at 167, 172). He stated that adjacent wetlands possess the
requisite significant nexus if the wetlands ``either alone or in
combination with similarly situated lands in the region, significantly
affect the chemical, physical, and biological integrity of other
covered waters more readily understood as `navigable.' '' Id. at 780.
Following Rapanos, Federal courts took different approaches to
determining which Rapanos standard applied. On June 7, 2007, the
agencies issued joint guidance entitled ``Clean Water Act Jurisdiction
Following the U.S. Supreme Court's Decision in Rapanos v. United States
and Carabell v. United States'' to address the waters at issue in that
decision. The guidance did not change the codified definition of
``waters of the United States.'' The guidance indicated that the
agencies would assert jurisdiction over traditional navigable waters
and their adjacent wetlands, relatively permanent nonnavigable
tributaries of traditional navigable waters and wetlands that abut
them, nonnavigable tributaries that are not relatively permanent if
they have a significant nexus with a traditional navigable water, and
wetlands adjacent to nonnavigable tributaries that are not relatively
permanent if they have a significant nexus with a traditional navigable
water. The guidance was reissued with minor changes on December 2, 2008
(hereinafter, the ``Rapanos Guidance'').\21\ After issuance of the
Rapanos Guidance, Members of Congress, developers, farmers, State and
local governments, environmental organizations, energy companies, and
others asked the agencies to replace the guidance with a regulation
that would provide clarity and certainty regarding the scope of the
waters federally regulated under the Clean Water Act.
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\21\ 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 (December
2, 2008) (``Rapanos Guidance''), available at https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf.
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On May 25, 2023, the Supreme Court decided Sackett v. EPA. In its
majority opinion, the Supreme Court held that the Clean Water Act
extends to relatively permanent bodies of water connected to
traditional navigable waters and wetlands with a continuous surface
connection to those waters ``so that there is no clear demarcation
between `waters' and wetlands.'' 598 U.S. 651, 678 (quoting Rapanos,
547 U.S. at 742, 755 (plurality opinion)). The Court concluded that the
significant nexus standard was ``inconsistent with the text and
structure of the [Clean Water Act].'' Id. at 679. Instead, the Court
held that the Rapanos plurality was correct: the [Clean Water Act]'s
use of `waters' encompasses `only those relatively permanent, standing
or continuously flowing bodies of water ``forming geographic[al]
features'' that are described in ordinary parlance as ``streams,
oceans, rivers, and lakes.'' ' '' Id. at 671 (quoting Rapanos, 547 U.S.
at 739). The Court also ``agree[d] with [the plurality's] formulation
of when wetlands are part of `the waters of the United States,' '' id.
at 678, explaining:
In Rapanos, the plurality spelled out clearly when adjacent
wetlands are part of covered waters. It explained that ``waters''
may fairly be read to include only those wetlands that are ``as a
practical matter indistinguishable from waters of the United
States,'' such that it is ``difficult to determine where the `water'
ends and the `wetland' begins.'' That occurs when wetlands have ``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 678 (citing Rapanos, 547 U.S. at 742, 755).
The Sackett Court also found that ``[w]etlands that are separate
from traditional navigable waters cannot be considered part of those
waters, even if they are located nearby,'' id. at 678, and that ``
`adjacent' cannot include wetlands that are not part of covered
`waters,' '' id. at 682. Additionally, the Court found it
``instructive'' that section 101(b) of the Act expressly ``protect[s]
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,'' observing that ``[i]t is hard to see how
the States' role in regulating water resources would remain `primary'
if the [agencies] had jurisdiction over anything defined by the
presence of water.'' Id. at 674. Finally, the Court emphasized that
``the CWA does not define the EPA's jurisdiction based on ecological
importance'' and instead draws a careful balance that recognizes
States' ``primary authority to combat water pollution by regulating
land and water use.'' Id. at 683.
B. The Agencies' Rules and Regulatory Regimes
In May 1973, the EPA issued its first set of regulations to
implement the new NPDES permit program established in the 1972 Federal
Water Pollution Control Act amendments. Those regulations defined the
phrase ``navigable waters'' as:
All navigable waters of the United States;
[[Page 52508]]
Tributaries of navigable waters of the United States;
Interstate waters;
Intrastate lakes, rivers, and streams which are utilized
by interstate travelers for recreational or other purposes;
Intrastate lakes, rivers, and streams from which fish or
shellfish are taken and sold in interstate commerce; and
Intrastate lakes, rivers, and streams which are utilized
for industrial purposes by industries in interstate commerce.
38 FR 13528, 13529 (May 22, 1973) (codified at 40 CFR 125.1
(1973)).
In 1974, the Corps issued its first set of regulations defining the
term ``navigable waters'' for the purpose of implementing section 404
of the Clean Water Act as well as sections 9, 10, 11, 13, and 14 of the
Rivers and Harbors Act. 39 FR 12115, 12119 (April 3, 1974) (codified at
33 CFR 209.120). These regulations reaffirmed the Corps' view at the
time that its dredged and fill jurisdiction under section 404 was the
same as its traditional jurisdiction under the Rivers and Harbors Act.
Specifically, the Corps defined the ``navigable waters'' as waters that
``are subject to the ebb and flow of the tide, and/or are presently, or
have been in the past, or may be in the future susceptible for use for
purposes of interstate or foreign commerce.'' Id.
Environmental organizations challenged the Corps' 1974 regulation
in the U.S. District Court for the District of Columbia, arguing that
the Corps' definition of ``navigable waters'' was inadequate because it
did not include tributaries or coastal marshes above the mean high tide
mark or wetlands above the ordinary high water mark. In a brief summary
judgment order, the district court held that the term ``navigable
waters'' is not limited to the traditional tests of navigability and
ordered the Corps to revoke its definition and publish a new one
``clearly recognizing the full regulatory mandate of the Water Act.''
Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685
(D.D.C. 1975).
In response to this decision, the Corps issued interim regulations
in 1975 that defined the term ``navigable waters'' to include
periodically inundated coastal wetlands contiguous with or adjacent to
navigable waters, periodically inundated freshwater wetlands contiguous
with or adjacent to navigable waters, and, as in the EPA's 1973
regulations, certain intrastate waters based on non-transportation
impacts on interstate commerce. The Corps revised the definition in
1977 to encompass traditional navigable waters, tributaries to
navigable waters, interstate waters, adjacent wetlands to those
categories of waters, and ``[a]ll other waters'' the ``degradation or
destruction of which could affect interstate commerce.'' 42 FR 37122,
37144 (July 19, 1977).
The agencies have revised the definition of ``waters of the United
States'' multiple times since then.\22\ In fact, since 2015, EPA and
the Army have finalized five rules revising the definition of ``waters
of the United States.'' Additional information regarding the agencies'
prior rulemakings on ``waters of the United States,'' including the
2015 Clean Water Rule and the 2019 Repeal Rule, can be found in the
preambles for the agencies' prior rules.\23\ The remainder of section
IV.B of this preamble focuses on the agencies' most recent rules and
regulatory regimes--namely, the pre-2015 regulatory regime, the 2020
Navigable Waters Protection Rule, the 2023 Rule, the Conforming Rule,
and resulting Amended 2023 Rule regulatory regime.
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\22\ The Corps has revised the definition of ``navigable
waters'' or ``waters of the United States'' for its section 404
regulations in 1975 (40 FR 31320, 31324, 31326 (July 25, 1975)
(interim final regulations)), 1977 (42 FR 37122, 37144 (July 19,
1977) (including a definition of ``wetlands''; ``freshwater
wetlands'' had been defined in 1975)), 1982 (47 FR 31794 (July 22,
1982) (interim final regulations)), 1984 (49 FR 39478 (October 5,
1984)), and 1986 (51 FR 41250 (November 13, 1986)). For its part,
EPA has revised the definition of ``navigable waters'' or ``waters
of the United States'' in 1979 (44 FR 32854 (June 7, 1979)
(promulgating the waste treatment system exclusion)), 1980 (45 FR
48620 (July 21, 1980) (revising the waste treatment system exclusion
in its NPDES regulations only at 40 CFR 122.3) and 45 FR 48620 (July
21, 1980) (suspending a portion of the waste treatment system
exclusion in its NPDES regulations)), 1983 (48 FR 14146, 14157
(April 1, 1983) (republishing the waste treatment system exclusion
in its NPDES regulations at 40 CFR 122.2)), 1988 (53 FR 20764, 20774
(June 6, 1988) (revising EPA's section 404 program definitions at 40
CFR 232.2)), and 2002 (67 FR 47042 (July 17, 2002) (revising the
definition of ``waters of the United States'' in EPA's section 311
regulations at 40 CFR part 112 to ensure consistency with other
Clean Water Act programs)). The agencies have also issued several
joint revisions to their regulations, including in 1993 (58 FR
45008, 45031 (August 25, 1993) (adding an exclusion for prior
converted cropland)), 2015 (80 FR 37045 (June 29, 2015) (``Clean
Water Rule: Definition of `Waters of the United States' '' or 2015
Clean Water Rule)), 2019 (84 FR 56626 (October 22, 2019)
(``Definition of `Waters of the United States'--Recodification of
Pre-Existing Rules'' or the 2019 Repeal Rule)), 2020 (85 FR 22250
(April 21, 2020) (``Navigable Waters Protection Rule'')), and 2023
(88 FR 3004 (January 18, 2023) (``Revised Definition of `Waters of
the United States' '') and 88 FR 61964, 61968 (September 8, 2023)
(``Revised Definition of `Waters of the United States' ;
Conforming'')).
\23\ See supra note 22.
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1. Pre-2015 Regulatory Regime (Prior to Sackett)
The ``pre-2015 regulatory regime'' refers to the agencies' pre-2015
regulations defining ``waters of the United States,'' implemented in
light of relevant case law and longstanding practice, as informed by
applicable guidance, training, and experience. The pre-2015 regulations
are commonly referred to as ``the 1986 regulations.''
In 1986, the Corps consolidated and recodified its regulations
defining ``waters of the United States'' for purposes of implementing
the section 404 program to align with clarifications that the EPA had
previously promulgated. See 51 FR 41206, 41216-17 (November 13, 1986).
While EPA and the Corps have maintained separate regulations defining
the statutory term ``waters of the United States,'' their
interpretations, reflected in the 1986 regulations, were identical and
remained largely unchanged from 1977 to 2015. See 42 FR 37122, 37124,
37127 (July 19, 1977).24 25 EPA's comparable regulations
were recodified in 1988. See 53 FR 20764 (June 6, 1988). While the
Corps stated in 1986 that the recodified regulation neither reduced nor
expanded jurisdiction, its previous exclusion for ditches was moved
from the regulatory text to the final rule preamble. Id. at 41216-17.
And the Corps added to the preamble what later became known as the
``Migratory Bird Rule,'' which claimed jurisdiction over any waters
which are or may be used by birds protected by migratory bird treaties,
waters which may be used as habitat for birds flying across State
lines, waters which may be used by endangered species, and waters used
to irrigate crops sold in interstate commerce. Id. at 41217.
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\24\ Multiple provisions in the Code of Federal Regulations
contained the definition of the phrases ``navigable waters'' and
``waters of the United States'' for purposes of implementing the
Clean Water Act, 33 U.S.C. 1362(7), and other water pollution
protection statutes such as the Oil Pollution Act, 33 U.S.C.
2701(21). Some EPA definitions were added after 1986, but each
conformed to the 1986 regulations except for variations in the waste
treatment system exclusion. See, e.g., 55 FR 8666 (March 8, 1990);
73 FR 71941 (November 26, 2008); see also supra note 22.
\25\ For convenience, the agencies generally refer to the Corps'
regulations throughout this document at 33 CFR 328.3. The EPA's
codification of the definition of ``waters of the United States'' is
found at 40 CFR 120.2. EPA's regulations defining ``waters of the
United States'' or ``navigable waters'' at 40 CFR 110.1, 112.2,
116.3, 117.1, 122.2, 230.3, 232.2, 300.5, 302.3, 401.11, and
Appendix E to Part 300 all refer to the definition at 40 CFR 120.2.
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The 1986 regulatory text identified the following waters as
``waters of the United States'' (33 CFR 328.3 (2014)): \26\
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\26\ ``Waters of the United States'' is defined in both the U.S.
Army Corps of Engineers' regulations, at 33 CFR part 328, and in the
EPA's regulations, at 40 CFR part 120. For the sake of convenience,
in this preamble the agencies will generally just refer to the
Corps' regulations at 33 CFR 328.3.
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[[Page 52509]]
All traditional navigable waters,\27\ interstate waters,
and the territorial seas;
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\27\ ``Traditional navigable waters'' (or waters that are
traditionally understood as navigable) refers to all waters which
are currently used, were used in the past, or may be susceptible to
use in interstate or foreign commerce, including all waters subject
to the ebb and flow of the tide.
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All impoundments of jurisdictional waters;
All ``other waters'' such as lakes, ponds, and sloughs the
``use, degradation, or destruction of which would or could affect
interstate or foreign commerce'' (``other waters'');
Tributaries of traditional navigable waters, interstate
waters, impoundments, or ``other waters''; and
Wetlands adjacent to traditional navigable waters,
interstate waters, the territorial seas, impoundments, tributaries, or
``other waters'' (other than waters that are themselves wetlands).
33 CFR 328.3(a)(1)-(7) (1987). The 1986 regulations also excluded
``waste treatment systems'' from the definition of ``waters of the
United States,'' consistent with the EPA's regulatory definition. Id.
328.3 (a)(7), (b) (1987); see also 44 FR 32854 (June 7, 1979).\28\
Additionally, the 1986 regulations defined ``adjacent'' to mean
``bordering, contiguous, or neighboring,'' and specified that
``[w]etlands separated from other waters of the United States by man-
made dikes or barriers, natural river berms, beach dunes and the like
are `adjacent wetlands.' ''
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\28\ There are some variations in the waste treatment system
exclusion across the EPA's regulations defining ``waters of the
United States.'' The placement of the waste treatment system and
prior converted cropland exclusions also varies in the EPA's
regulations.
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On August 25, 1993, the agencies amended the regulatory definition
of ``waters of the United States'' to categorically exclude ``prior
converted croplands.'' 58 FR 45008, 45031 (August 25, 1993) (``1993
Rule'') (codified at 33 CFR 328.3(a)(8) (1994)). The stated purpose of
the amendment was to promote ``consistency among various Federal
programs affecting wetlands,'' in particular the Food Security Act of
1985 programs implemented by the U.S. Department of Agriculture (USDA)
and the Clean Water Act programs implemented by the agencies.\29\ 58 FR
45031. The agencies did not include a definition of ``prior converted
cropland'' in the text of the Code of Federal Regulations but noted in
the preamble to the 1993 Rule that the term was defined at that time by
the USDA National Food Security Act Manual (NFSAM). Id. The agencies at
that time also declined to establish regulatory text specifying when
the prior converted cropland designation is no longer applicable. In
the preamble to the 1993 Rule, the agencies stated that ``[t]he Corps
and EPA will use the [Natural Resources Conservation Service's]
provisions on `abandonment,' thereby ensuring that [prior converted]
cropland that is abandoned within the meaning of those provisions and
which exhibit[s] wetlands characteristics will be considered wetlands
subject to Section 404 regulation.'' Id. at 45034. The agencies
summarized these abandonment provisions by explaining that prior
converted cropland which meets wetland criteria is considered to be
abandoned unless: at least once in every five years the area has been
used for the production of an agricultural commodity, or the area has
been used and will continue to be used for the production of an
agricultural commodity in a commonly used rotation with aquaculture,
grasses, legumes, or pasture production. Id.
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\29\ Title XII of the Food Security Act of 1985, as amended,
encourages participants in USDA programs to adopt land management
measures by linking eligibility for USDA program benefits to farming
practices on highly erodible land and wetlands (i.e., the wetland
conservation provisions). USDA policy guidance regarding
implementation of the wetland conservation provisions is found in
the current edition of the Natural Resources Conservation Service
National Food Security Act Manual (NFSAM), including the procedures
for how to delineate wetlands and make wetland determinations in
accordance with Subpart C of 7 CFR part 12. Due to the unique
statutory provisions of the Food Security Act, USDA wetland
determinations may identify certain areas as exempt under the 1985
Act but remain subject to the requirements of the Clean Water Act.
To avoid potential confusion, USDA clearly informs program
participants that USDA wetland determinations are for purposes of
implementing the wetland conservation provisions only, and that
participants should contact the Corps for information as to whether
a particular activity will require a Clean Water Act section 404
permit.
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Congress amended the Food Security Act wetland conservation
provisions in 1996 to state that USDA certifications of wetland
delineation maps for purposes of the Food Security Act (e.g.,
determinations by the Natural Resources Conservation Service (NRCS)
that particular areas constitute prior converted cropland) ``shall
remain valid and in effect as long as the area is devoted to an
agricultural use or until such time as the person affected by the
certification requests review of the certification by the Secretary [of
Agriculture].'' Public Law 104-127, 322(a)(4), 110 Stat. 888 (1996); 16
U.S.C. 3822(a)(4). Thus, for purposes of farm program eligibility, the
1996 amendments meant that prior converted cropland would only be
abandoned if the area was no longer devoted to an agriculture use,
while the 1993 preamble abandonment principles would have disqualified
such areas for the Clean Water Act exclusion if their specific
conditions were not met. The agencies did not update their prior
converted cropland regulations for purposes of the Clean Water Act
following the 1996 amendments to wetland conservation provisions of the
Food Security Act, as those regulations neither defined prior converted
cropland nor specified when a valid prior converted cropland
determination might cease to be valid. However, in 2005, the Army and
the USDA issued a joint Memorandum to the Field (the 2005 Memorandum)
in an effort to align the Clean Water Act section 404 program with the
Food Security Act wetland conservation provisions.\30\ The 2005
Memorandum provided that a ``certified [prior converted] determination
made by [USDA] remains valid as long as the area is devoted to an
agricultural use. If the land changes to a non-agricultural use, the
[prior converted] determination is no longer applicable and a new
wetland determination is required for CWA purposes.'' 2005 Memorandum
at 4.
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\30\ U.S. Department of Agriculture, Natural Resources
Conservation Service and U.S. Department of the Army, Office of the
Assistant Secretary of the Army (Civil Works). Memorandum to the
Field on Guidance on Conducting Wetland Determinations for the Food
Security Act of 1985 and Section 404 of the Clean Water Act
(February 25, 2005), available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2508.
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The 2005 Memorandum did not clearly address the abandonment
principle that the agencies had been implementing since the 1993
rulemaking. The change in use policy was also never promulgated as a
rule and was declared unlawful by one district court because it
effectively modified the 1993 preamble language without any rulemaking
process. New Hope Power Co. v. U.S. Army Corps of Eng'rs, 746 F. Supp.
2d 1272, 1282 (S.D. Fla. 2010). As discussed in section V.F.2 of this
preamble, USDA and the Army rescinded the 2005 Memorandum in 2020 in
light of promulgation of the NWPR.\31\ Thus, under pre-2015 practice,
EPA and the Army once again began implementing the abandonment
principle to determine if an area has lost its prior converted cropland
status.
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\31\ U.S. Department of the Army, Office of the Assistant
Secretary of the Army (Civil Works), and U.S. Department of
Agriculture, Natural Resources Conservation Service. 2020.
``Memorandum for the Field: Rescission of the 2005 Joint Memorandum
to the Field Regarding Guidance on Conducting Wetland Determinations
for the Food Security Act of 1985 and Section 404 of the Clean Water
Act.'' January 28, 2020. Available in the docket for this action.
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The agencies have implemented the pre-2015 regulatory regime
consistent
[[Page 52510]]
with SWANCC and Rapanos after those Supreme Court decisions were issued
in 2001 and 2006, respectively. The agencies issued guidance on SWANCC
in 2001 and then in 2003. 68 FR 1991 (January 15, 2003) (superseding
the agencies' 2001 guidance). To ensure that any assertion of
jurisdiction over the ``other waters'' category (i.e., paragraph (a)(3)
waters in the 1986 regulations) is consistent with the Supreme Court's
ruling in SWANCC, the agencies have required that field staff get
approval from headquarters before exercising jurisdiction over an
(a)(3) water. As a practical matter, field staff have rarely, if ever,
sought such approval and therefore the agencies have not asserted
jurisdiction under the ``other waters'' category of the 1986
regulations since SWANCC.
For nearly a decade after Rapanos, the agencies did not revise
their regulations but instead determined jurisdiction under the 1986
regulations consistent with the two standards established in Rapanos
(the plurality's relatively permanent standard and Justice Kennedy's
significant nexus standard) and by using guidance issued jointly by the
agencies. See Rapanos Guidance. Under the Rapanos Guidance,\32\ the
agencies concluded that Clean Water Act jurisdiction exists if a water
meets either the relatively permanent standard or the significant nexus
standard. The agencies' assertion of jurisdiction over traditional
navigable waters and their adjacent wetlands remained unchanged by
Rapanos. Under the relatively permanent standard, the guidance stated
that the agencies would assert jurisdiction over: non-navigable
tributaries of traditional navigable waters that typically flow year-
round or have continuous flow at least seasonally; and wetlands that
directly abut such tributaries. Id. at 4-7. The guidance further stated
that the agencies would determine jurisdiction under the significant
nexus standard for the following waters: non-navigable tributaries that
are not relatively permanent, wetlands adjacent to non-navigable
tributaries that are not relatively permanent, and wetlands adjacent to
but not directly abutting a relatively permanent non-navigable
tributary. Id. at 8-12. The agencies generally did not assert
jurisdiction over non-wetland swales or erosional features (e.g.,
gullies and small washes characterized by low volume or infrequent or
short duration flow) or ditches (including roadside ditches) excavated
wholly in and draining only uplands and that did not carry a relatively
permanent flow of water. Id. at 11-12.
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\32\ The agencies note that the guidance ``does not impose
legally binding requirements on EPA, the Corps, or the regulated
community, and may not apply to a particular situation depending on
the circumstances.'' Rapanos Guidance at 4 n.17.
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Even after promulgating a revised definition of ``waters of the
United States'' that went into effect in 2015 (the 2015 Clean Water
Rule), the agencies continued implementing the pre-2015 regulatory
regime in certain States and, for a period of time, nationwide due to
court orders staying implementation of the 2015 rule.\33\ In 2018, the
agencies again implemented the pre-2015 regulatory regime nationwide
for about six months following the agencies' addition of an
applicability date to the 2015 Clean Water Rule.\34\ The next year,
after proceeding through public notice and comment, the agencies
published a final rule repealing the 2015 Clean Water Rule and
recodifying the 1986 regulations without any changes to the regulatory
text. 84 FR 56626 (October 22, 2019). The agencies indicated that they
would implement the 1986 regulations informed by applicable agency
guidance documents and consistent with Supreme Court decisions and
longstanding agency practice, thus restoring implementation of the pre-
2015 regulatory regime nationwide after the 2019 Repeal Rule went into
effect on December 23, 2019.
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\33\ See, e.g., North Dakota v. EPA, 127 F. Supp. 3d 1047
(D.N.D. 2015) (preliminary injunction barring implementation of the
2015 Clean Water Rule in 13 States); Georgia v. Pruitt, 326 F. Supp.
3d 1356 (S.D. Ga. June 6, 2018) (same as to 11 States); Texas v.
EPA, No. 3:15-cv-162, 2018 WL 4518230 (S.D. Tex. Sept. 12, 2018)
(same as to three States). See section I.A of the Technical Support
Document for the Proposed ``Revised Definition of `Waters of the
United States' '' Rule (available at https://www.regulations.gov/document/EPA-HQ-OW-2021-0602-0081), for a comprehensive history of
the effects of the litigation against the 2015 Clean Water Rule.
\34\ In February 2018, the agencies issued a rule that added an
applicability date of February 6, 2020 to the 2015 Clean Water Rule.
83 FR 5200 (February 6, 2018) (``Applicability Date Rule''). The
Applicability Date Rule was challenged in several district court
actions, and on August 16, 2018 the rule was vacated and enjoined
nationwide. See S.C. Coastal Conservation League v. Pruitt, 318 F.
Supp. 3d 959 (D.S.C. Aug. 16, 2018); see also Puget Soundkeeper All.
v. Wheeler, No. 15-01342 (W.D. Wash. Nov. 26, 2018) (vacating the
Applicability Date Rule nationwide).
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2. The 2020 Navigable Waters Protection Rule
On January 23, 2020, the agencies signed the Navigable Waters
Protection Rule: Definition of ``Waters of the United States'' (NWPR),
a rule that for the first time defined ``waters of the United States''
based generally on the Rapanos plurality's standard. The NWPR was
published on April 21, 2020, and went into effect on June 22, 2020. 85
FR 22250 (April 21, 2020).\35\ The NWPR interpreted the term ``the
waters'' within ``the waters of the United States'' to ``encompass
relatively permanent flowing and standing waterbodies that are
traditional navigable waters in their own right or that have a specific
surface water connection to traditional navigable waters, as well as
wetlands that abut or are otherwise inseparably bound up with such
relatively permanent waters.'' Id. at 22273. Specifically, the rule
established four categories of jurisdictional waters: (1) the
territorial seas and traditional navigable waters; (2) tributaries of
such waters; (3) certain lakes, ponds, and impoundments of
jurisdictional waters; and (4) wetlands adjacent to the above three
categories of jurisdictional waters. Id. at 22273.
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\35\ The NWPR went into effect on June 22, 2020 in all States
except Colorado. 85 FR 22250 (April 21, 2020). In Colorado, the NWPR
was subject to a preliminary injunction issued by the U.S. District
Court for the District of Colorado. Colorado v. EPA, 445 F. Supp. 3d
1295 (D. Colo. 2020). The Tenth Circuit later reversed the Colorado
district court's order on appeal; as a result, the NWPR went into
effect in Colorado on April 26, 2021. Colorado v. EPA, 989 F.3d 874
(10th Cir. 2021); Colorado v. EPA, No. 20-1238, ECF No. 010110512604
(Doc. 10825032) (10th Cir. Apr. 26, 2021).
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The NWPR defined the scope of each of these four categories. The
territorial seas and traditional navigable waters were defined
consistent with the agencies' longstanding interpretations of those
terms. Id. at 22280-81. A ``tributary'' was defined as a river, stream,
or similar naturally occurring surface water channel that contributes
surface water flow to a territorial sea or traditional navigable water
in a typical year either directly or indirectly through other
tributaries, jurisdictional lakes, ponds, or impoundments, or adjacent
wetlands. Id. at 22286. A jurisdictional tributary was required to be
perennial or intermittent in a typical year. Id. Additionally, the term
``tributary'' included a ditch that either relocates a tributary, is
constructed in a tributary, or is constructed in an adjacent wetland as
long as the ditch is perennial or intermittent and contributes surface
water flow to a traditional navigable water or territorial sea in a
typical year. Id. at 22251. The NWPR's ``tributary'' definition did not
include ephemeral features, which were defined as surface waters that
flow only in direct response to precipitation, including ephemeral
streams, swales, gullies, rills, and pools. Id.
The NWPR defined ``lakes and ponds, and impoundments of
jurisdictional waters'' as ``standing bodies of open water that
contribute surface water flow
[[Page 52511]]
in a typical year to a territorial sea or traditional navigable water
either directly or through a tributary, another jurisdictional lake,
pond, or impoundment, or an adjacent wetland.'' Id. at 22251. A lake,
pond, or impoundment of a jurisdictional water did not lose its
jurisdictional status if it contributes surface water flow to a
downstream jurisdictional water in a typical year through certain
artificial or natural features. Id. Under the NWPR, a lake, pond, or
impoundment of a jurisdictional water was also jurisdictional if it was
inundated by flooding from a jurisdictional water in a typical year.
Id.
As for wetlands, the NWPR interpreted ``adjacent wetlands'' to be
those wetlands that abut jurisdictional waters and those non-abutting
wetlands that are (1) ``inundated by flooding'' from a jurisdictional
water in a typical year, (2) physically separated from a jurisdictional
water only by certain natural features (e.g., a berm, bank, or dune),
or (3) physically separated from a jurisdictional water by an
artificial structure that ``allows for a direct hydrologic surface
connection'' between the wetland and the jurisdictional water in a
typical year. Id. at 22338, 22240. Wetlands that did not have these
types of connections to other waters were not jurisdictional under the
NWPR.
The NWPR's regulatory text expressly provided that waters that did
not fall into its jurisdictional categories were not considered
``waters of the United States.'' Id. at 22338. Moreover, waters within
these categories, including traditional navigable waters and the
territorial seas, were not ``waters of the United States'' if they also
fit within the NWPR's broad exclusions. See id. at 22325 (``If the
water meets any of the[ ] exclusions, the water is excluded even if the
water satisfies one or more conditions to be a [jurisdictional]
water.'').\36\ The rule excluded groundwater, including groundwater
drained through subsurface drainage systems; ephemeral features;
diffuse stormwater runoff and directional sheet flow over upland;
ditches that are not traditional navigable waters, tributaries, or that
are not constructed in adjacent wetlands, subject to certain
limitations; prior converted cropland; artificially irrigated areas;
artificial lakes and ponds; water-filled depressions constructed or
excavated in upland or in non-jurisdictional waters incidental to
mining or construction activity; pits excavated in upland or in non-
jurisdictional waters for the purpose of obtaining fill, sand, or
gravel; stormwater control features constructed or excavated in upland
or in non-jurisdictional waters; groundwater recharge, water reuse, and
wastewater recycling structures constructed or excavated in upland or
in non-jurisdictional waters; and waste treatment systems. Id. at
22338-39.
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\36\ The NWPR's exclusion for ditches, however, explicitly did
not encompass ditches that are traditional navigable waters or
jurisdictional tributaries. 33 CFR 328.3(b)(5) (2020).
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Similar to other rulemakings to revise the definition of ``waters
of the United States,'' the NWPR was subject to multiple legal
challenges. On August 30, 2021, the U.S. District Court for the
District of Arizona remanded the NWPR and vacated the rule. Pascua
Yaqui Tribe v. EPA, No. 4:20-cv-00266, 2021 WL 3855977 (D. Ariz. Aug.
30, 2021). On September 27, 2021, the U.S. District Court for the
District of New Mexico also issued an order vacating and remanding the
NWPR. Navajo Nation v. Regan, No. 2:20-cv-00602 (D.N.M. Sept. 27,
2021). Six courts also remanded the NWPR without vacatur or without
addressing vacatur.\37\
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\37\ Order, Pueblo of Laguna v. Regan, No. 1:21-cv-00277, ECF
No. 40 (D.N.M. Sept. 21, 2021) (declining to reach issue of vacatur
in light of the Pascua decision); Order, California v. Wheeler, No.
3:20-cv-03005, ECF No. 271 (N.D. Cal. Sept. 16, 2021) (same);
Waterkeeper All. v. Regan, No. 3:18-cv-03521, ECF No. 125 (N.D. Cal.
Sept. 16, 2021) (same); Order, Conservation Law Found. v. EPA, No.
1:20-cv-10820, ECF No. 122 (D. Mass. Sept. 1, 2021) (same); Order,
S.C. Coastal Conservation League v. Regan, No. 2:20-cv-01687, ECF
No. 147 (D.S.C. July 15, 2021) (remanding without vacating); Order,
Murray v. Wheeler, No. 1:19-cv-01498, ECF No. 46 (N.D.N.Y. Sept. 7,
2021) (same). In this litigation, EPA and the Army had filed motions
for remand without vacatur. See, e.g., U.S. Motion for Remand
without Vacatur, Conservation Law Found. v. EPA, No. 1:20-cv-10820,
ECF No. 112 (D. Mass. June 9, 2021).
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Following vacatur of the NWPR, the agencies resumed implementing
the pre-2015 regulatory regime across the country.
3. January 2023 Rule
In January 2023, the EPA and the Army once again revised the
definition of ``waters of the United States.'' 88 FR 3004 (January 18,
2023). The 2023 Rule incorporated the two jurisdictional standards from
Rapanos into the definition of the term ``waters of the United
States.'' First, the ``relatively permanent standard'' under the 2023
Rule referred to the test to identify: relatively permanent, standing
or continuously flowing tributaries connected to traditional navigable
waters, the territorial seas, or interstate waters; relatively
permanent, standing or continuously flowing additional waters with a
continuous surface connection to such relatively permanent waters or to
traditional navigable waters, the territorial seas, or interstate
waters; and, adjacent wetlands and certain impoundments with a
continuous surface connection to such relatively permanent waters or to
traditional navigable waters, the territorial seas, or interstate
waters. See 88 FR 3006, 3038-39. Second, the ``significant nexus
standard'' under the 2023 Rule referred to the test to identify waters
that, either alone or in combination with similarly situated waters in
the region, significantly affect the chemical, physical, or biological
integrity of traditional navigable waters, the territorial seas, or
interstate waters. Id. at 3006. The regulatory text also defined
``significantly affect'' for purposes of the significant nexus
standard. Id. Under the 2023 Rule, waters were jurisdictional if they
met either standard. Id.
The 2023 Rule also defined the term ``adjacent'' with no changes
from the agencies' longstanding regulatory definition of ``adjacent''
as ``bordering, contiguous, or neighboring.'' 88 FR 3116-17. Wetlands
separated from other ``waters of the United States'' by man-made dikes
or barriers, natural river berms, beach dunes and the like were defined
as ``adjacent'' wetlands. Id.
While the 2023 Rule was not before the Supreme Court in Sackett,
the Court did review the rule's two jurisdictional standards and
concluded that the significant nexus standard was ``inconsistent with
the text and structure of the [Clean Water Act].'' 598 U.S. at 679.
4. Conforming Rule
In September 2023, EPA and the Army published a final rule amending
the 2023 Rule's definition of ``waters of the United States'' in
response to the Supreme Court decision in Sackett. ``Revised Definition
of `Waters of the United States'; Conforming,'' 88 FR 61964, 61968
(September 8, 2023) (``Conforming Rule''). The Conforming Rule
published in the Federal Register and became effective on September 8,
2023.
The Conforming Rule amended the provisions of the 2023 Rule that
were invalid under the Supreme Court's interpretation of the Clean
Water Act in Sackett. See 88 FR 61964. In particular, the agencies
revised the 2023 Rule to remove the significant nexus standard and to
amend its definition of ``adjacent'' as these provisions were rendered
invalid by Sackett. Id. at 61965-66. Per Sackett, waters are not
jurisdictional under the Clean Water Act based on the significant nexus
standard. Id. In addition, under the decision in
[[Page 52512]]
Sackett, wetlands are not defined as ``adjacent'' or jurisdictional
under the Clean Water Act solely because they are ``bordering,
contiguous, or neighboring . . . [or] separated from other `waters of
the United States' by man-made dikes or barriers, natural river berms,
beach dunes and the like.'' Id. at 61965. Therefore, waters cannot be
found to be jurisdictional because they meet the significant nexus
standard; nor can wetlands be found to be jurisdictional based on the
definition of ``adjacent'' previously codified in the 2023 Rule. Id.
Consistent with the Sackett decision, the agencies in the Conforming
Rule revised the definition of ``adjacent'' to mean ``having a
continuous surface connection.'' Id. Furthermore, because Sackett
invalidated the significant nexus standard, the agencies removed the
provision for assessment of streams and wetlands under the additional
waters provision of paragraph (a)(5) as no longer valid since any
jurisdictional streams or wetlands would fall within paragraphs (a)(1)
through (4) of the 2023 Rule.\38\ Id.
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\38\ Lakes and ponds, however, may still have been
jurisdictional under paragraph (a)(5) of the 2023 Rule if they did
not fall within paragraphs (a)(1) through (3) of the 2023 Rule (for
example, if they were not tributaries connected to waters identified
in paragraph (a)(1) or (2)) and they were relatively permanent,
standing or continuously flowing bodies of water with a continuous
surface connection to the waters identified in paragraph (a)(1) or
(3).
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Finally, the agencies removed ``interstate wetlands'' from the 2023
Rule to conform with the decision in Sackett. Id. at 61966. The Supreme
Court in Sackett examined the Clean Water Act and its statutory history
and found the predecessor statute to the Clean Water Act covered and
defined ``interstate waters'' as ``all rivers, lakes, and other waters
that flow across or form a part of State boundaries.'' 598 U.S. at 673
(citing 33 U.S.C. 1160(a), 1173(e) (1970 ed.)) (emphasis in original).
The Court concluded that the use of the term ``waters'' refers to such
``open waters'' and not wetlands. Id. As a result, under Sackett, the
provision authorizing the assertion of Clean Water Act jurisdiction
over wetlands simply because they are interstate is invalid. 88 FR
61966.
5. Current Applicable Regulatory Regimes
As noted above, the agencies refer to the regulations defining
``waters of the United States'' under the 2023 Rule, as amended by the
Conforming Rule, as the ``Amended 2023 Rule.'' The Amended 2023 Rule is
the regulatory regime that is currently codified in the Code of Federal
Regulations and that serves as the baseline for the regulatory impact
analysis for this proposal. In this action, the agencies are proposing
to revise the Amended 2023 Rule.
Due to preliminary injunctions of the Amended 2023 Rule in several
States, the agencies are implementing two regulatory regimes across the
country as of the signature date of this proposed rule.\39\ The EPA and
the Army are implementing the Amended 2023 Rule in 24 States, the
District of Columbia, and the U.S. Territories. In the other 26 States,
the agencies are interpreting ``waters of the United States''
consistent with the pre-2015 regulatory regime and the Supreme Court's
Sackett decision.\40\
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\39\ States and business groups challenged the 2023 Rule in
three courts. Two district courts preliminarily enjoined the 2023
Rule as to the plaintiff-States. Texas v. EPA, 662 F. Supp. 3d 739
(S.D. Tex. 2023); West Virginia v. EPA, 669 F. Supp. 3d 781 (D.N.D.
2023). The Eastern District of Kentucky dismissed on standing and
ripeness grounds. Kentucky v. EPA, No. 3:23-cv-7 (E.D. Ky. Mar. 31,
2023). Subsequently, the Sixth Circuit granted an injunction pending
appeal of the Eastern District of Kentucky's order to Kentucky and
business plaintiffs, which dissolved when the Sixth Circuit's
mandate issued on September 23, 2024, following the Sixth Circuit's
ruling vacating and remanding the district court's dismissal. Order,
Kentucky v. EPA, No. 23-5345, ECF No. 28 (6th Cir. May 10, 2023);
Opinion, Kentucky v. EPA, No. 23-5345, ECF No. 56-2 (6th Cir. July
29, 2024); Mandate Issued, Kentucky v. EPA, No. 23-5345, ECF No. 57
(6th Cir. Sept. 23, 2024). Kentucky then amended its complaint, and
the business plaintiffs filed a notice of voluntary dismissal.
Amended Complaint, Kentucky v. EPA, No. 3:23-cv-7, ECF No. 78 (E.D.
Ky. Nov. 8, 2024); Notice of Voluntary Dismissal, Kentucky v. EPA,
No. 3:23-cv-7, ECF No. 73 (E.D. Ky. Oct. 4, 2024). While these cases
were pending, the Supreme Court decided Sackett and the agencies
issued the Conforming Rule. After the agencies issued the Conforming
Rule, plaintiffs challenging the 2023 Rule amended their complaints
to challenge the Amended 2023 Rule and certain aspects of the
Conforming Rule and 2023 Rule. See also White v. EPA, No. 24-00013
(E.D.N.C.); White v. EPA, No. 24-1635 (4th Cir.). As of the
signature date of this proposed rule, this ongoing litigation is in
abeyance.
\40\ The latest information on the status of this litigation can
be found on the EPA's Rule Status and Litigation Update web page at
https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update.
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6. March 12, 2025, ``Continuous Surface Connection'' Guidance
On March 12, 2025, the EPA and the Army signed a joint memorandum
to provide guidance to the agencies' field staff regarding
implementation of ``continuous surface connection'' for adjacent
wetlands. ``Memorandum to the Field between the U.S. Department of the
Army, U.S. Army Corps of Engineers and the U.S. Environmental
Protection Agency Concerning the Proper Implementation of `Continuous
Surface Connection' under the Definition of `Waters of the United
States' under the Clean Water Act'' (March 12, 2025) (``continuous
surface connection guidance''), available at https://www.epa.gov/system/files/documents/2025-03/2025cscguidance.pdf. Consistent with
this guidance, and consistent with Sackett, the agencies are
interpreting ``continuous surface connection'' to mean abutting (or
touching) a requisite jurisdictional water. The agencies issued the
guidance in response to requests for clarification on the scope of
adjacent wetlands in light of the Supreme Court's decision in Sackett.
Specifically, the agencies had heard from a variety of co-
regulators and stakeholders that the preamble to both the 2023 Rule and
the Conforming Rule did not include adequate direction or guidance on
the meaning of the ``continuous surface connection'' requirement, and
the agencies' case-specific policy memoranda \41\ issued post-Sackett
neither provided national guidance on the topic nor clear and
transparent direction for the public or the agencies. The agencies
determined that the case-specific policy memoranda also contained
conclusions which are inconsistent with the discussion of ``continuous
surface connection'' as described in the pre-2015 regulatory regime
guidance documents and the Sackett decision.
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\41\ The agencies issued several case-specific policy memoranda
in 2024 and 2025 as part of the process in place at the time for
coordination of Corps draft AJDs. Such case-specific policy
memoranda were issued by the agencies to provide guidance to the
respective EPA regional and Corps district offices. Additional
information regarding the agencies' coordination processes is
available on EPA's website at https://www.epa.gov/wotus/coordination-process-approved-jurisdictional-determinations-and-field-memoranda.
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C. WOTUS Notice and Summary of Stakeholder Outreach
On March 21, 2025, the agencies signed a Federal Register document
publicizing a series of listening sessions and a 30-day recommendations
docket to solicit feedback on key aspects of the definition of ``waters
of the United States.'' ``WOTUS Notice: The Final Response to SCOTUS''
(90 FR 13428, March 24, 2025). The agencies accepted written pre-
proposal recommendations from members of the public from March 24,
2025, to April 23, 2025, which can be found in the docket (Docket ID
EPA-HQ-OW-2025-0093). The agencies held a series of stakeholder and co-
regulator listening sessions to hear pre-proposal input and
recommendations including specific meetings in March, April, May and
June of 2025 with Tribes, States and State associations, local
governments, industry, environmental organizations, agricultural
organizations, small businesses and congressional staff, and
[[Page 52513]]
two in-person public listening sessions held in communities outside of
Washington, DC. A summary of the agencies' pre-proposal listening
sessions is available in the docket (Docket ID No. EPA-HQ-OW-2025-0322)
for this proposed rule.
The Federal Register announcement outlined three key topics the
agencies were particularly interested in receiving recommendations on,
including the scope of ``relatively permanent'' waters and to what
features this phrase applies, the scope of ``continuous surface
connection'' and to which features this phrase applies, and the scope
of jurisdictional ditches. The agencies also sought input on
implementation challenges related to these key topic areas.
Additionally, the agencies engaged State and local governments in a
60-day federalism consultation period during development of this
proposed rule, beginning with an initial federalism consultation
meeting on April 3, 2025, and concluding on June 2, 2025. The agencies
also initiated a 60-day consultation period with federally recognized
Indian Tribes, beginning March 21, 2025, and concluding May 20, 2025.
Information about the federalism and Tribal consultation can be found
in sections VII.F and VII.G of this preamble, respectively, and in the
federalism and Tribal consultation reports, available in the docket
(Docket ID No. EPA-HQ-OW-2025-0322) for this proposed rule.
The agencies received input from a wide variety of Tribes, States,
local governments, environmental organizations, industry, agriculture
organizations, small businesses, and the public through virtual
meetings, consultation letters, and recommendation letters submitted to
the docket. Of the more than 45,000 recommendations received, the
docket included 48 letters from States and State associations, 25
letters from Tribes and Tribal associations, 97 letters from industry,
31 letters from agriculture organizations, 65 letters from
environmental organizations, 37 letters from local governments and
local government associations, two letters from Federal agencies, four
from other non-governmental organizations, approximately 3,900 letters
from the general public, and over a dozen mass mail campaigns. Through
the conclusion of all listening sessions, the agencies documented 228
individual verbal remarks.
The agencies received broad support for robust stakeholder outreach
and the development of a rule that is consistent with Supreme Court
precedent. Many stakeholders also emphasized the importance of regional
geographic variability across the United States, and some stakeholders
suggested the agencies consider regionally specific criteria for
jurisdictional waters. Most recommendations focused on the three key
topics for which the agencies solicited input (``relatively permanent''
waters, ``continuous surface connection,'' and ditches), as well as
consideration for implementation and further exclusions.
1. Relatively Permanent Waters
A broad range of recommendations were submitted on the scope of
``relatively permanent'' from a diverse array of stakeholder and co-
regulator groups. One common theme across most stakeholder and co-
regulator recommendations included the need for the definition to
account for regional differences in hydrologic variability across the
country. Of those who submitted recommendations, most of the States,
State associations, agriculture organizations and many industry groups
recommended that relatively permanent waters be defined as perennial
waters only, or continuously flowing year-round. Conversely, of those
who submitted recommendations, many Tribes, environmental advocacy
groups, and some industry groups recommended against further revisions
to the definition of ``waters of the United States,'' stating that the
Amended 2023 Rule accurately implements the Sackett decision. In
addition, Tribal and environmental advocacy groups broadly recommended
interpreting relatively permanent to include intermittent (including
seasonal) and perennial waters. The majority of local governments
providing feedback recommended that they and local flood control
districts be responsible for making jurisdictional determinations and
for oversight. Nearly all individual citizens providing recommendations
called for broad protection of water resources, including protecting
intermittent (including seasonal) and perennial waters. Some States and
industry supported the use of the streamflow duration assessment
methods (SDAMs) to identify relatively permanent waters and requested
the methods be available for all States.\42\ Some agriculture
organizations and industry stakeholders suggested SDAMs and ordinary
high water mark (OHWM) not be used on their own to assess jurisdiction
due in part to the implementation challenges they pose.
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\42\ Information on the SDAMs is available on EPA's website at
https://www.epa.gov/streamflow-duration-assessment. The SDAMs are
discussed in more detail in section V.5 of this preamble.
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2. Continuous Surface Connection
The recommendations received on the scope of ``continuous surface
connection'' focused mainly on whether discrete features such as
natural or man-made features sever continuous surface connection for
wetlands and whether wetlands separated by such features are
``abutting,'' as that term has been understood by the Supreme Court. Of
those providing feedback, most agriculture organizations, many industry
groups, some local governments, and some States recommended that
discrete features such as culverts and berms sever jurisdiction for
wetlands. Of those providing recommendations, the majority of States,
Tribes, environmental advocacy groups, some industry groups, some local
governments, and nearly all individual citizens expressed that discrete
features do not inherently sever jurisdiction. Many of those
recommendations included a call for case-by-case consideration of
seasonal dry period variations as well as precipitation-driven
connectivity, whether the continuous surface connection has
characteristics of a relatively permanent water, and evidence of a
continuous surface connection. Individual citizens providing
recommendations generally called for an inclusive interpretation of
continuous surface connection, asserting that all water has
connectivity, even in dry periods. Many recommendations from
environmental advocacy stakeholders cited or broadly discussed
connectivity, including the EPA's 2015 Connectivity Report.\43\
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\43\ U.S. EPA. Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the Scientific Evidence
(Final Report). U.S. Environmental Protection Agency, Washington,
DC, EPA/600/R-14/475F, 2015. Available at https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414.
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3. Ditches
The recommendations received on ditches focused on whether ditches
should be excluded from the definition of ``waters of the United
States'' and whether the function of the ditch should be considered in
identifying excluded ditches. Of those providing feedback, agriculture
organizations, some industry stakeholders, some local governments, and
a few States recommended excluding all ditches from the definition of
``waters of the United States.'' On the other hand, of those providing
feedback, most States, State associations, Tribes, some environmental
advocacy groups,
[[Page 52514]]
several local governments, and some industry stakeholders recommended
that ditches that function as natural, relatively permanent features
should be jurisdictional. Many of these recommendations also stated
that ditches excavated only in uplands or non-jurisdictional waters and
ditches that have no more than ephemeral flow should be excluded. Many
local governments and agriculture organizations providing
recommendations showed support for the 2020 Ditch Exemption Memo,\44\
though they recommended limited revisions to clarify the Clean Water
Act section 404(f) exemptions for construction or maintenance of
irrigation ditches and maintenance of drainage ditches.
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\44\ https://www.epa.gov/sites/default/files/2020-07/documents/final_ditch_exemption_memo_july_2020_with_epa.pdf.
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4. Implementation
A wide variety of recommendations on the definition of ``waters of
the United States'' and on Clean Water Act program process and
implementation fell outside of the three key definition topics,
including: (1) encouraging more voluntary incentives for landowners to
protect wetlands, (2) offering compensatory mitigation solutions such
as streamlining the mitigation bank review and approval process, (3)
improving the process for obtaining a U.S. Department of Agriculture
(USDA) determination for prior converted cropland, (4) updating
training for field staff and developing regional guidance, (5) creating
maps and tools to determine ``waters of the United States,'' and (6)
including Tribes and States in further Federal rulemaking development.
5. Additional Feedback Including Further Exclusions
Some States recommended that the intrastate waters category (e.g.,
paragraph (a)(5) of the Amended 2023 Rule) not be included as a
separate basis of jurisdiction. Stakeholders and co-regulators
expressed different views about which exclusions should be included in
a revised definition of ``waters of the United States.'' Many States
recommended excluding certain water features such as permafrost
wetlands, ephemeral waters that only periodically provide drainage for
rainfall or conveyances for irrigation water, isolated and artificial
ponds, and excluding wetlands generally unless they qualify as waters
on their own. Many stakeholders expressed support for the waste
treatment system exclusion and prior converted cropland exclusions.
Some stakeholders expressed support for adding other exclusions, such
as an exclusion for groundwater and an exclusion for stormwater control
features that do not exhibit continuous surface water flow to navigable
waters. Some industry stakeholders recommended excluding features
specific to mining operations until such time as they are reclaimed as
part of a created or enhanced wetlands complex.
The agencies have thoroughly reviewed and considered the
recommendations received for purposes of developing the proposed
rulemaking. The agencies welcome feedback on this proposed rule through
one of the upcoming public meetings and the 45-day public comment
period initiated through publication of this action, as discussed in
section II of this preamble. The agencies will consider all comments
received during the comment period on this proposal during the
development of the final rule and supporting documents.
V. Proposed Revised Definition
A. Basis of the Proposed Rule
The agencies are proposing to amend certain portions of the Amended
2023 Rule, as discussed below, with amendments to reflect the agencies'
determination of the statutory limits on the scope of the ``waters of
the United States'' consistent with, and informed by, Supreme Court
precedent. Section I.B of this preamble contains a summary of the
agencies' proposed revisions. All other aspects of the agencies'
regulations defining ``waters of the United States'' would remain
unchanged. Under the agencies' proposed rule, the term ``waters of the
United States'' would include (1) traditional navigable waters and the
territorial seas; (2) most impoundments of ``waters of the United
States;'' (3) relatively permanent tributaries of traditional navigable
waters, the territorial seas, and impoundments; (4) wetlands adjacent
(i.e., having a continuous surface connection) to traditional navigable
waters, impoundments, and tributaries; and (5) lakes and ponds that are
relatively permanent and have a continuous surface connection to a
traditional navigable water, the territorial seas, or a tributary. The
agencies are also proposing to amend the exclusions for waste treatment
systems, prior converted cropland, and certain ditches, and to add an
exclusion for groundwater. Finally, the agencies are proposing to add
definitions for ``continuous surface connection,'' ``ditch,'' ``prior
converted cropland,'' ``relatively permanent,'' ``tributary,'' and
``waste treatment system.''
The proposed rule reflects the balance Congress struck between the
Clean Water Act section 101(a) statutory objective to ``restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters,'' and the policy in Clean Water Act 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(a) and (b). In developing an appropriate regulatory
framework for the proposed rule, the agencies recognize and respect the
primary responsibilities and rights of States to regulate their land
and water resources. Id. 1251(b), see also id. 1370. The oft-quoted
objective of the Clean Water Act at 101(a) must be implemented in a
manner consistent with Congress' 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.'' Daniel Ball, 77 U.S. (10 Wall.) at 557.
Over a century later, the Supreme Court in SWANCC reaffirmed ``the
States' traditional and primary power over land and water use.''
SWANCC, 531 U.S. at 174; accord Rapanos, 547 U.S. at 738 (Scalia, J.,
plurality opinion). And in Sackett, the Supreme Court confirmed that
the balance between State and Federal authority embodied in the Act
cannot be redrawn in response to ecological concerns. 598 U.S. at 683.
While Clean Water Act section 101(b) does not specifically identify
Tribes, the policy of preserving States' sovereign authority over land
and water use is equally relevant to ensuring the primary authority of
Tribes to address pollution and plan the development and use of Tribal
land and water resources. This proposed rule recognizes and preserves
the autonomy of Tribes just as it recognizes and preserves the
authority of States.
Ensuring that States and Tribes retain authority over their land
and water resources, reflecting the policy in section 101(b), helps
carry out the overall objective of the Clean Water Act and ensures that
the agencies are giving full effect and consideration to the entire
structure and function of the Act. See, e.g., Sackett, 598 U.S. at 674
(``It is hard to see how the States' role in regulating water resources
would remain `primary' if the EPA had jurisdiction over anything
defined by the presence of water.''); Rapanos, 547
[[Page 52515]]
U.S. at 755-56 (Scalia, J., plurality opinion) (``[C]lean water is not
the only purpose of the statute. So is the preservation of primary
state responsibility for ordinary land-use decisions. 33 U.S.C.
1251(b).'') (emphasis in original). 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 the Nation's waters, not just its navigable
waters. These non-regulatory sections of the Clean Water Act reveal
Congress' intent to restore and maintain the integrity of the Nation's
waters using Federal assistance to support State, Tribal, and local
partnerships to control pollution of the Nation's waters in addition to
a Federal regulatory prohibition on the discharge of pollutants to its
navigable waters. See, e.g., Rapanos, 547 U.S. at 745 (``It is not
clear that the state and local conservation efforts that the CWA
explicitly calls for, see 33 U.S.C. 1251(b), are in any way inadequate
for the goal of preservation.''). Including all of the Nation's waters
within the Act's Federal regulatory mechanisms would call into question
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 its navigable waters and
between the overall objective and goals of the Clean Water Act and the
specific policy directives from Congress, the agencies would fully
implement the entire structure of the Act while respecting the specific
word choices of Congress. See, e.g., Bailey, 516 U.S. at 146; Nat'l
Fed'n of Indep. Bus., 567 U.S. at 519, 544 (2012).
The proposed rule is also consistent with and informed by the
Supreme Court's seminal decision in Sackett. In developing the proposed
rule, the agencies considered the text and structure of the statute,
other relevant precedents, and the agencies' experience and expertise
implementing the definition of ``waters of the United States.'' The
limitations in the proposed rule both reflect consideration of the
comprehensive nature and objective of the Clean Water Act and avoid
assertions of jurisdiction that exceed the agencies' statutory
authority or raise federalism concerns. The Sackett decision clarifies
where the agencies draw the boundaries of Federal jurisdiction in
keeping with Congress's objective while preserving and protecting the
responsibilities and rights of the States, as Congress recognized in
the Clean Water Act. The proposed rule's limitations conform with the
Sackett decision and thereby ensure that Clean Water Act regulatory
programs will apply where waters meet the definition of ``waters of the
United States.'' States and Tribes have authority to regulate waters
that do not meet the proposed rule's definition of ``waters of the
United States'' as they deem appropriate. Finally, the proposed rule
would also achieve the agencies' goals of ensuring clarity, simplicity,
and improvements that will stand the test of time, while providing for
durable, stable, and more effective and efficient jurisdictional
determinations and permitting actions.
The Regulatory Impact Analysis for the Proposed Rule provides
information about the potential differences between current
implementation and the proposed rule. The assessment can be found in
the docket for this proposed action.
When preparing an approved jurisdictional determination,\45\ which
is typically made at the request of a landowner or applicant, the
agencies bear the burden of proof in demonstrating that an aquatic
resource meets the requirements under the proposed rule to be
jurisdictional or excluded. The agencies' jurisdictional determinations
must adequately document the basis of jurisdiction--that is, summarize
the indicators that support the determination such as the information
that demonstrates that the waters, including any wetlands, at issue
meet the requirements of paragraphs (a) or (b) of the proposed rule, as
applicable. Under any definition of ``waters of the United States,''
the agencies will rely on a weight of evidence approach when
determining whether a water meets the regulatory requirements for
asserting Federal jurisdiction. This means that if the agencies do not
have adequate information to demonstrate that a water meets the
jurisdictional standards to be a ``water of the United States,'' the
agencies would find such a water to be non-jurisdictional. The agencies
invite comment on approaches for increasing predictability in
jurisdictional determinations, including options for leveraging data
and tools discussed infra in section V of this preamble and in section
3 of the Regulatory Impact Analysis for the Proposed Rule.
---------------------------------------------------------------------------
\45\ For convenience, EPA decisions on jurisdiction are referred
to as jurisdictional determinations throughout this document, but
such decisions are not ``approved jurisdictional determinations'' as
defined and governed by the Corps' regulations at 33 CFR 331.2.
Approved jurisdictional determinations are typically made at the
request of a landowner or applicant. See, e.g., Regulatory Guidance
Letter (RGL) 16-01, available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll9/id/1256.
---------------------------------------------------------------------------
This proposal does not propose to change the scope of paragraph
(a)(1)(i), addressing traditional navigable waters. However, the
agencies are considering whether clarifications to the scope of that
provision may be warranted in the final rule preamble or in a separate
administrative action. Specifically, the agencies are considering
whether it may be necessary to elucidate what it means for a water to
be ``susceptible to use in interstate or foreign commerce.'' The
agencies welcome comments from members of the public about any
experiences they may have had with findings that waters are
``susceptible to use in interstate or foreign commerce,'' any concerns
they may have with current or potential future implementation of that
provision, or other aspects of this provision that may warrant
additional clarification or interpretation by the agencies. In
addition, the agencies solicit input on whether the agencies should
reinstate the joint agency coordination memorandum issued on June 30,
2020, requiring elevation of certain traditional navigable waters
determinations (See U.S. Environmental Protection Agency (EPA) and U.S.
Army Corps of Engineers (Corps) Process for Elevating and Coordinating
Specific Draft Determinations under the Clean Water Act (CWA),
available in the docket for this proposed rule).
The agencies also solicit comment on an alternative approach to the
proposed rule, whereby ``waters of the United States'' would encompass
traditional navigable waters, tributaries that directly flow into these
waters, and wetlands with a continuous surface water connection to such
waters. All other waters would be excluded. This alternative is
informed by Justice Thomas's concurring opinion in Sackett, which
emphasized that ``the term `navigable waters' refers solely to the
aquatic channels of interstate commerce over which Congress
traditionally exercised authority.'' 598 U.S. at 697 (Thomas, J.,
concurring). The agencies seek comment on whether the statute and the
relevant history of Federal authority over navigable waters support
this approach, or whether they support the agencies' proposal to
include a broader category of tributaries and adjacent wetlands within
the scope of ``navigable waters,'' based on the plain meaning of the
term ``waters'' (informed by the qualifier ``navigable'') and the
continuous surface connection between such waters and wetlands.
[[Page 52516]]
B. Interstate Waters
The proposed rule would remove the category of interstate waters
from the definition of ``waters of the United States.'' Because this
category can encompass bodies of water that are not relatively
permanent, standing, or continuously flowing or that are not themselves
connected to a downstream traditional navigable water or the
territorial seas, either directly or through one or more waters or
features that convey relatively permanent flow, its removal would
ensure consistency with the Sackett decision as well as the Clean Water
Act. This approach would also address persistent litigation over this
category. Under the proposal, interstate waters would only be ``waters
of the United States'' if they fall within another jurisdictional
category in the definition. The change would likely have few practical
impacts and would not undermine significant reliance interests, as the
agencies rarely identify waters as jurisdictional solely because they
are interstate as they often fall under one of the other categories of
``waters of the United States'' (e.g., the waters are also traditional
navigable waters or jurisdictional tributaries). Based on an analysis
of data associated with approved jurisdictional determinations
finalized by the Corps between August 28, 2015, and September 18, 2025,
a total of 15 waters were found to be jurisdictional as interstate
waters during that time frame. Under the proposed rule, rivers like the
Amargosa River, which flows from Nevada into a dry playa in Death
Valley, California, would not be jurisdictional simply because they
cross a state boundary. Rather, these rivers would only be covered by
Federal jurisdiction if they are themselves jurisdictional by some
other means, such as being traditional navigable waters or
jurisdictional tributaries.
The agencies previously eliminated the category of interstate
wetlands from the interstate waters category in the Conforming Rule,
see 88 FR 69166-69169 (September 8, 2023), meaning that the proposed
rule's elimination of the interstate waters category water by itself
would not impact the jurisdictional status of interstate wetlands like
the Great Dismal Swamp, which crosses the border between Virginia and
North Carolina--under both current implementation and the proposed
rule, such wetlands are only jurisdictional if they meet another
category of ``waters of the United States'' (e.g., wetlands subject to
the ebb and flow of the tide or adjacent wetlands).
Given the proposed deletion of the (a)(1)(iii) interstate waters
category, the agencies are also proposing a ministerial change to
paragraph (a) to add an ``or'' after the (a)(1)(i) category and delete
the ``or'' after the (a)(1)(ii) category. This revision would be
necessary as there would be only two remaining water types under
category (a)(1) with the proposed deletion of interstate waters. The
agencies are not proposing any other changes to the (a)(1)(i) or (ii)
categories.
1. Basis for Eliminating as an Independent Basis for Jurisdiction
Removing the category of ``interstate waters'' as an independent
basis for jurisdiction reflects the language of the Clean Water Act, as
interpreted by the Supreme Court, as well as the history of the Act and
Congress' authority under the Constitution to regulate ``waters of the
United States.'' The Supreme Court has interpreted ``waters'' in the
context of the Clean Water Act to encompass ``only those relatively
permanent, standing or continuously flowing bodies of water `forming
geographic[al] features' that are described in ordinary parlance as
`streams, oceans, rivers, and lakes.' '' Sackett, 598 U.S. at 671
(citing Rapanos, 547 U.S. at 739 (plurality opinion)). Specifically
with respect to ``waters of the United States,'' the Sackett Court held
that a ``water of the United States'' must be ``a relatively permanent
body of water connected to traditional interstate navigable waters'' or
``wetland[s] [with] a continuous surface connection with that water.''
Id. at 678 (citing Rapanos, 547 U.S. at 742, 755); see section IV.A of
this preamble. Nothing in Sackett or the Rapanos plurality opinion
suggests that Congress intended to separately regulate interstate
waters that do not meet this test.
As discussed in section IV.A of this preamble, the Court has made
clear that Congress' authority for enacting the Clean Water Act is
derived from ``[i]ts traditional jurisdiction over waters that were or
had been navigable in fact or which could reasonably be so made.''
SWANCC, 531 U.S. at 172. The Court explained in SWANCC that nothing in
the legislative history of the Clean Water Act Amendments ``signifies
that Congress intended to exert anything more than its commerce power
over navigation.'' Id. at 168 n.3. The scope of the agencies'
regulation must therefore reflect the limits imposed by the term,
``navigable waters.'' The agencies propose that regulating all
interstate waters--from isolated ponds to ephemeral washes--regardless
of their connection to navigability would impermissibly ``read[ ] the
term `navigable waters' out of the statute.'' See id. at 172.
The history of the Clean Water Act supports the agencies' proposed
removal of the category of interstate waters. The original Water
Pollution Control Act (WPCA) of 1948 regulated the ``pollution of
interstate waters,'' defined as ``all rivers, lakes, and other waters
that flow across, or form a part of, State boundaries.'' WPCA of 1948,
2(d)(1), (4), 10(e), 62 Stat. 1155, 1156-57, 1161. In 1961, Congress
amended the statute to substitute the term ``interstate or navigable
waters'' for ``interstate waters'' in the statute's enforcement
provision while making minor changes to the definition of ``interstate
waters.'' See Public Law 87-88, 75 Stat. 208 (1961). In 1965, Congress
again amended the statute to require States to develop water quality
standards for all ``interstate waters'' within their borders. See
Public Law 89-234, 79 Stat. 908 (1965). In the 1972 Amendments,
however, establishing the current statutory structure, Congress
selected the term ``navigable waters'' as the operative term for the
major regulatory programs established by the 1972 amendments, dropping
the definition of ``interstate waters'' from the statute. See, e.g., 33
U.S.C. 1362(7) (defining ``navigable waters'' as ``waters of the United
States''). In doing so, however, Congress allowed States to retain
existing water quality standards for interstate waters developed under
the pre-1972 statutory program. See 33 U.S.C. 1313(a). Congress
specifically did not carry the term ``interstate waters'' forward as
the operative phrase for Federal jurisdiction. Following basic canons
of statutory construction, the agencies now interpret Congress' removal
of the term ``interstate waters'' as intentional. See, e.g., Stone v.
INS, 514 U.S. 386, 397 (1995) (``When Congress acts to amend a statute,
we presume it intends its amendment to have real and substantial
effect.'').
Congress' removal of the prior term, ``interstate waters,'' and its
replacement of that term with ``navigable waters,'' supports the
agencies' view that interstate waters can only be jurisdictional if
they have the requisite connection to traditional navigable waters and
fall within the Supreme Court's interpretation of ``waters of the
United States.'' After considering Congress' constitutional authority
over navigable waters that forms the basis for Clean Water Act
jurisdiction (see section IV.A of this preamble), the Supreme Court's
interpretation of the term ``waters of the United States,'' and the
history of the statute, the agencies
[[Page 52517]]
are proposing that only those interstate waters that would fall within
another category in this proposed rule are jurisdictional. Other
interstate waters fall beyond the agencies' authority under the Clean
Water Act and are more appropriately regulated by the States and Tribes
under their sovereign authorities.
The agencies evaluated their longstanding interpretation prior to
2020, and reinstated in 2023, which included interstate waters as a
standalone jurisdictional category (though the agencies clarified that
``waters of the United States'' does not include ``interstate
wetlands'' in the Conforming Rule following Sackett). 88 FR 61966. As
discussed in section IV.B of this preamble above, the EPA promulgated
its first regulatory definition for the term ``navigable waters'' in
1973. 38 FR 13528 (May 22, 1973). In that regulation, the EPA
established ``interstate waters'' as a separate category of ``waters of
the United States,'' distinct from the traditional navigable waters
category, retained it as such until 2020, and restored it in 2023. The
agencies are now proposing that the best interpretation of ``waters of
the United States'' is that it only encompasses those interstate waters
that meet the jurisdictional test laid out by the Supreme Court in
Sackett and the Rapanos plurality opinion. As noted above, the agencies
are not proposing any other changes to the (a)(1)(i) or (ii)
categories.
In support of their prior interpretation, the agencies have argued
that the term ``waters of the United States'' unambiguously covers
``interstate waters.'' The agencies have asserted that ``interstate
waters'' are waters of the several States and, thus, the United States.
However, the agencies now recognize that nothing in the Rapanos
plurality or Sackett opinions provides a basis for interpreting
interstate waters as jurisdictional if they are not themselves
traditional navigable waters or the territorial seas, relatively
permanent tributaries of traditional navigable waters or the
territorial seas, wetlands with a continuous surface connection to
these waters, or impoundments of otherwise jurisdictional waters.
The agencies have referred to section 303(a) of the Clean Water Act
as further textual evidence that Congress intended ``interstate
waters'' to be retained as an independent category of jurisdictional
waters. That provision authorizes water quality standards for
``interstate waters'' developed following the 1965 amendments to remain
in effect, subject to revision under the new statutory program. 33
U.S.C. 1313(a). Yet the legislative history of the 1972 amendments
indicates that Congress did not consider interstate waters and
navigable waters to be two distinct categories; rather, they referred
to terms in the pre-1972 statutory regime conjunctively as ``interstate
navigable waters.'' S. Rep. No. 92-414, at 2 (1971) (``Each State was
required by the 1965 Act to develop standards for water quality within
its boundaries. These standards were to be applied to all interstate
navigable waters flowing through the State; intrastate waters were not
included.'') (emphasis added); id. at 4 (``The setting of water quality
standards for interstate navigable waters . . . is the keystone of the
present program for control of water pollution.'') (emphasis added);
id. (``The States have first responsibility for enforcement of their
standards. When approved by the [EPA], however, the standards for
interstate navigable waters become Federal-State standards.'')
(emphasis added). In 1976, the Supreme Court shared the same view of
the pre-1972 statutory scheme: ``Before it was amended in 1972, the
Federal Water Pollution Control Act employed ambient water quality
standards specifying the acceptable levels of pollution in a State's
interstate navigable waters as the primary mechanism in its program for
the control of water pollution.'' EPA v. California, 426 U.S. 200, 202
(1976) (emphasis added) (footnote omitted). In light of this history,
the section 303(a) provision relating to existing water quality
standards for ``interstate waters'' may be best understood as referring
to ``interstate navigable waters,'' rather than any interstate waters
regardless of their connection to traditional navigable waters.
The agencies also historically relied on two Supreme Court cases--
Illinois v. City of Milwaukee, 406 U.S. 91 (1972) and City of Milwaukee
v. Illinois, 451 U.S. 304 (1981)--addressing interstate water pollution
to support their prior interpretation. Yet neither case addressed the
specific question of whether ``interstate waters'' and ``navigable
waters'' are separate categories of jurisdictional waters under the
Clean Water Act. They instead addressed interstate water pollution
generally, and the water at issue in those cases was Lake Michigan, a
water that is both interstate and navigable. The 1972 case, which was
decided prior to the 1972 Federal Water Pollution Control Act
amendments, refers to the two categories in the disjunctive, implying
that the Court viewed the pre-1972 statutory program as encompassing
two separate categories. See Illinois, 406 U.S. at 102 (``it is
federal, not state, law that in the end controls pollution of
interstate or navigable waters'') (emphasis added). However, the 1981
decision refers to the 1972 Amendments as a ```total restructuring' and
`complete rewriting' of the existing water pollution legislation
considered in that case.'' Milwaukee, 451 U.S. at 317 (citing
legislative history of the 1972 Federal Water Pollution Control Act
amendments). While Milwaukee refers to the 1972 Amendments of the
Federal Water Pollution Control Act as affecting ``interstate waters,''
its language generally supports the agencies' interpretation that prior
iterations of the statute referring to both interstate waters and
navigable waters were replaced with a completely new program in 1972.
The agencies therefore no longer find these cases a persuasive basis
for regulating ``interstate waters'' as a distinct category of ``waters
of the United States.''
The proposed rule's approach to interstate waters is consistent
with a district court decision that ruled on a motion for summary
judgment on this issue following SWANCC and Rapanos. In Georgia v.
Wheeler, the court directly addressed the 2015 Clean Water Rule's
assertion of authority over all interstate waters, including
nonnavigable interstate waters. 418 F. Supp. 3d 1336, 1358-59 (S.D. Ga.
2019). The court noted that under that rule, ``a mere trickle, an
isolated pond, or some other small, non-navigable body of water would
be under federal jurisdiction simply because it crosses a state line or
lies along a state border.'' Id. at 1359. The court concluded that
``the inclusion of all interstate waters,'' including those with
``little or no connection to navigable-in-fact waters,'' exceeds the
agencies' authority under the Clean Water Act, as discussed in SWANCC.
Id. The agencies find persuasive the court's analysis and conclusion in
Georgia v. Wheeler.
C. Relatively Permanent Waters
1. Definition and Scope of ``Relatively Permanent'' Waters
In this proposal, the agencies define ``relatively permanent'' to
mean ``standing or continuously flowing bodies of surface water that
are standing or continuously flowing year-round or at least during the
wet season.'' Consistent with the Sackett decision, ephemeral waters
(i.e., those with surface water flowing or standing only in direct
response to precipitation (e.g.,
[[Page 52518]]
rain or snow fall)) are not jurisdictional because they are not
relatively permanent. The phrase ``at least during the wet season'' is
intended to include extended periods of predictable, continuous surface
hydrology occurring in the same geographic feature year after year in
response to the wet season, such as when average monthly precipitation
exceeds average monthly evapotranspiration. As proposed, surface
hydrology would be required to be continuous throughout the entirety of
the wet season. The temporal component for wet season is intended to be
an extended period where there is continuous surface hydrology
resulting from predictable seasonal precipitation patterns year after
year. The agencies acknowledge that surface hydrology may not always
exactly overlap with the wet season, for example in regions exhibiting
a time lag or delay in demonstration of surface hydrology due to
various factors. The latter may occur, for example, as a result of
snowpack melt occurring several months after repeated snowfall creates
a snowpack. In another example, some streams experience delayed (i.e.,
lagged) surface hydrology during the transition from the dry season to
the wet season, as it may take some time for the water table to rise
due to seasonal precipitation patterns.
Under the proposed rule, ``relatively permanent'' applies to both
tributaries under paragraph (a)(3) and lakes and ponds under paragraph
(a)(5). The proposed definition of ``relatively permanent'' would also
apply to determining when wetlands are adjacent to impoundments that
are relatively permanent, standing or continuous flowing bodies of
water. See section V.C.5.a of this preamble for additional information
about implementation of ``relatively permanent.'' In light of the
Sackett decision, the agencies solicit comment on the definition of
``relatively permanent'' in this proposed rule, including
implementation of the definition and regional implications of the
proposed approach.
2. Basis for the Proposed Definition
This proposed definition is based on the text of the Clean Water
Act and recent Supreme Court decisions interpreting the term ``waters
of the United States,'' as well as the agencies' expertise and desire
to establish a clear and easily implementable definition. As discussed
in section IV.A of this preamble, the plurality opinion in Rapanos
interpreted the term ``waters of the United States'' as covering
``relatively permanent, standing or continuously flowing bodies of
water'' that are connected to traditional navigable waters, as well as
wetlands with a ``continuous surface connection'' to such waterbodies.
547 U.S. at 739, 742 (Scalia, J., plurality opinion). The Rapanos
plurality noted that its reference to ``relatively permanent'' waters
did ``not necessarily exclude streams, rivers, or lakes that might dry
up in extraordinary circumstances, such as drought,'' or ``seasonal
rivers, which contain continuous flow during some months of the year
but no flow during dry months.'' Id. at 732 n.5 (emphasis in original).
In Sackett, the Supreme Court concluded that the Rapanos plurality
was ``correct'' in interpreting ``waters of the United States'' (for
purposes of surface waters, as opposed to wetlands) as ``encompassing
`only those relatively permanent, standing or continuously flowing
bodies of water forming geographic[al] features that are described in
ordinary parlance as streams, oceans, rivers, and lakes.' '' 598 U.S.
at 671 (quoting Rapanos, 547 U.S. at 739).
The agencies' proposed definition of ``relatively permanent''
implements the Court's interpretation of ``waters of the United
States'' in the Rapanos plurality decision, adopted by the majority in
Sackett, in an understandable and implementable way for both ordinary
citizens and expertly trained scientists. It is faithful to the Rapanos
plurality opinion and the Sackett decision because bodies of water that
have standing or flowing surface water year-round are, by definition,
permanent. And while the Rapanos plurality noted that waters of the
United States do not include ``ordinarily dry channels through which
water occasionally or intermittently flows,'' 547 U.S. at 733, it would
``not necessarily exclude seasonal rivers, which contain continuous
flow during some months of the year but no flow during dry months.''
Id. at 732 n.5. The proposed definition of ``relatively permanent''
includes water features that are standing or flowing continuously ``at
least during the wet season,'' which is consistent with the plain
meaning of ``waters,'' ``lakes'' and ``streams'' and with the Rapanos
plurality's intent to avoid excluding seasonal waters. The Sackett
decision adopted the Rapanos plurality's interpretation of ``relatively
permanent,'' 598 U.S. at 671, although the agencies acknowledge that
the Sackett decision did not specifically address the reference to
seasonal waters in the Rapanos plurality. Having standing or continuous
flow at least during the wet season most typically occurs in surface
waters at the same time each year; for example, during times when
groundwater tables are elevated or when snowpack runoff produces
relatively permanent flow, returning on an annual basis during the wet
season in known, fixed geographic locations. The proposed definition is
thus consistent with the Rapanos plurality's concepts of ``relatively
permanent,'' as explicitly endorsed by the Sackett decision, and
``seasonal,'' while not capturing features that are ephemeral.
Moreover, while excluding features that lack flow during the wet
season, the agencies are implementing Clean Water Act section 101(b),
which ``protect[s] the primary responsibilities and rights of States to
prevent, reduce, and eliminate pollution'' and ``to plan the
development and use . . . of land and water resources.'' 33 U.S.C.
1251(b); see also Sackett, 598 U.S. at 674 (``It is hard to see how the
States' role in regulating water resources would remain ``primary'' if
the EPA had jurisdiction over anything defined by the presence of
water.'') 33 U.S.C. 1251(b); see also Sackett, 598 U.S. at 674 (``It is
hard to see how the States' role in regulating water resources would
remain ``primary'' if the EPA had jurisdiction over anything defined by
the presence of water.'')
Finally, the proposed definition incorporates terms that are easily
understood in ordinary parlance and should be implementable by both
ordinary citizens and trained professionals. In a similar way,
scientists, environmental consultants, and other water resource
professionals, including the agencies' staff, have used the concept of
the ``wet season'' for decades to assess water features--including to
assess if observations made during a site visit or through
interpretation of aerial photography are made under normal, wetter than
normal, or drier than normal climatic conditions, and to assist with
delineating wetlands--and the concept of a body of surface water that
is standing or continuously flowing year-round has been a part of the
relatively permanent standard since the Rapanos guidance. Indeed, the
agencies apply the concept of ``wet season'' in the use of the Corps'
Antecedent Precipitation Tool (APT),\46\ which is routinely used to
inform wetland delineations and jurisdictional determinations.\47\ See
[[Page 52519]]
section V.C.5.b of this preamble for further discussion of
implementation of ``relatively permanent.'' The agencies intend to use
the metrics from the Web-based Water-Budget Interactive Modeling
Program (WebWIMP), which are reported in the APT, as a primary source
for identifying the wet season.\48\ The agencies also believe that the
incorporation of wet season into the proposed definition of
``relatively permanent'' can be viewed as a bright line test, as it
would provide a required duration threshold for which a water must have
standing or flowing water in order to be considered jurisdictional.
Unlike typical bright line approaches, however, the agencies' proposed
approach would also allow for regional variation given the range of
hydrology and precipitation throughout the country. The line the
agencies propose to draw between relatively permanent and non-
relatively permanent waters enhances administrative efficiency and
reflects a balancing of the law, common sense, science, and stakeholder
input received pre-proposal.
---------------------------------------------------------------------------
\46\ Available at https://github.com/erdc/Antecedent-Precipitation-Tool/releases.
\47\ Sparrow, K.H., Brown, SW, French, C.E., Gutenson, J.L.,
Hamilton, C.O., and Deters, J.C. 2025. Antecedent Precipitation Tool
(APT) Version 3.0: Technical and User Guide. U.S. Army Corps of
Engineers. ERDC/TN WRAP-25-1. Available at https://erdc-library.erdc.dren.mil/items/af14290c-ed08-411b-ae5d-effa5b5b947d.
\48\ The APT reports an interpretation of the average monthly
water-balance metrics from WebWIMP (available at http://cyclops.deos.udel.edu/wimp/public_html/index.html), as an estimation
of the approximate dates of the wet and dry seasons for the
observation location, including whether the date of observation
falls within the wet season or the dry season. The interpretation of
wet season using the results from WebWIMP is that the wet season
corresponds to all periods of the year where precipitation is
estimated to, on average, exceed evapotranspiration. See
``Additional Information on the Antecedent Precipitation Tool
(APT),'' available at https://www.epa.gov/system/files/documents/2022-12/Additional%20Information%20on%20the%20APT.pdf.
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3. Alternative Approaches
The agencies considered proposing to limit the definition of
``relatively permanent waters'' to only ``perennial'' waters and
solicit public comment as to whether the agencies should adopt this
alternative definition. The agencies evaluated this interpretation
because ``perennial'' streams are most obviously ``permanent,''
consistent with the Sackett decision and the Rapanos plurality opinion.
The agencies are not proposing this approach, however, because the term
``relatively'' in Sackett and the Rapanos plurality suggests that Clean
Water Act jurisdiction may not be limited to waters that are standing
or continuously flowing every day or that always have standing water.
Moreover, limiting the scope of relatively permanent waters to
perennial streams would exclude waters that the Rapanos plurality
stated are ``not necessarily exclude[d]'' (emphasis added): ``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.'' 547
U.S. at 732 n.5 (emphasis in original); see also Sackett, 598 U.S. at
651, 671 (``we conclude that the Rapanos plurality was correct.'').
While this approach would exclude the ``seasonal'' streams that the
Rapanos plurality may have not necessarily intended to exclude, the
absence of an explicit reference to such ``seasonal'' streams in
Sackett could be interpreted to mean that Sackett defined the scope of
``relatively permanent'' to exclude such water features.
Perennial streams are common in wetter parts of the country but are
rare in the arid West, so this approach may result in Federal
regulatory jurisdiction over a greater proportion of water bodies in
certain parts of the country compared to other regions. However, as an
implementation matter, limiting ``relatively permanent'' waters to
``perennial'' features may simplify implementation of the rule. If
members of the public see that waters dry up on a regular basis other
than in times of drought, they would know those waters are not
jurisdictional simply by observation, without the need for any further
analysis or professional consultation. However, it may be more
challenging to identify whether a stream flows year-round or a few days
less than year-round. Such methods or the use of remote tools may
require repeated or continuous monitoring over the course of a year or
longer to ensure water is standing or flowing year-round. In addition,
stream assessment methods are sometimes more accurate in identifying
streams with at least seasonal flow (~82-95% accuracy) than identifying
streams with perennial flow (~75-91% accuracy), as indicators are more
readily identifiable between seasonal streams and those that only flow
in direct response to precipitation.\49\ The agencies solicit comment
as to whether ``relatively permanent'' should be limited to perennial
waters or should otherwise be defined differently than what the
agencies propose here. The agencies also solicit comment on whether the
extent of the agencies' interpretation of ``wet season'' appropriately
aligns with the Rapanos plurality's discussion of ``seasonal rivers'',
or whether the agencies should interpret ``wet season'' to reflect a
flow duration that is more than during the wet season but less than
perennial flow.
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\49\ See, e.g., James, A., McCune, K., Mazor, R. 2021. Review of
Flow Duration Methods and Indicators of Flow Duration in the
Scientific Literature, Northeast and Southeast of the United States.
Document No. EPA-840-B-22007. Available at https://www.epa.gov/system/files/documents/2023-05/Literature-Review-Beta-SDAM-NE-and-SE.pdf.
---------------------------------------------------------------------------
The agencies also considered an approach that would set certain
minimum flow volume thresholds in the proposed definition of
``relatively permanent.'' The proposed definition of ``relatively
permanent'' does not establish bright line requirements, such as for a
particular flow volume. In 1977, the Corps proposed to use flow volumes
(i.e., normally less than five cubic feet per second) to define
``headwaters'' in the definition of ``waters of the United States,''
and instead finalized the use of flow volumes for implementation of
their general permit program. 42 FR 37129 (July 19, 1977). Stream flow
volume is challenging to measure directly, in particular in a stream
where flow is not always present and may require multiple field-based
measurements that can make implementation inefficient and result in
delays in making a jurisdictional determination. While the proposed
approach to ``relatively permanent'' may also be supported by field
measurements, remote tools may also be used to observe presence or
absence of flow and identify flow during the wet season. Those remote
tools can assess flow frequency, and some can provide flow volume
estimates.\50\ In addition, the agencies have not identified a
rationale for a threshold of specific flow volumes that would establish
jurisdiction given the broad nationwide applicability of the proposed
rule and the regional variability in flow volumes.
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\50\ See USGS Enhanced Runoff Method, or EROM, used to compute
estimates of the mean annual flow for the National Hydrography
Dataset (NHD) Plus flowline features in the NHDPlus High Resolution
network. See also USGS Dynamic Surface Water Extent (DSWE).
Available at: https://www.usgs.gov/landsat-missions/landsat-dynamic-surface-water-extent-science-products.
---------------------------------------------------------------------------
Additionally, the agencies considered, but are not proposing, a
minimum flow duration metric (e.g., 30, 90, or 270 days \51\) or bright
lines set by region, e.g., by requiring flow a minimum of 270 days east
of the Mississippi River and a minimum of 30 or 60 days west of the
Mississippi, for relatively permanent waters. One such bright line
approach would not rely on the proposed wet season approach but could
require a minimum 90-day flow duration requirement to be consistent
with what
[[Page 52520]]
is generally considered a ``season'' (i.e., with each of the four
``seasons'' lasting three months of the year) or a 270-day flow
duration requirement to exclude the driest of seasons. This bright line
approach would provide transparency and regulatory certainty for
landowners and is easy to understand. This alternative approach would
also provide a strict threshold cutoff for establishing jurisdiction.
The proposed definition considers streamflow duration in the flow
classification definitions generally (e.g., ``flowing continuously
year-round,'' ``flowing continuously during the wet season'') but
without specifying an exact number of days of flow. The time period
that encompasses flow during the wet season can vary across the country
based upon climate, hydrology, topography, soils, and other conditions.
While establishing a minimum duration of flow could ultimately enhance
national consistency per the regulatory text, it would likely be
inconsistent with the regionalized implementation of relatively
permanent tributaries in the proposed rule. For example, streams with
continuous flow during the wet season in the arid West are
fundamentally different from such streams in the Southeast. Similar to
identifying flow duration year-round, a bright line for minimum flow
durations can pose implementation challenges to identify that flow has
occurred for that exact duration threshold--even landowners familiar
with their properties may not know the exact number of days a stream
flows per year. However, the agencies acknowledge there are benefits to
setting bright lines as they can provide clarity to stakeholders and
may provide additional transparency on the requirements for flow
duration of relatively permanent waters without the use of additional
tools; therefore, the agencies solicit comment and would welcome any
supporting rationales for particular thresholds that take into account
the broad nationwide applicability of the proposed rule, as well as
address any implementation challenges, in particular related to the
minimum 90-day or 270-day flow duration requirement under this
alternative approach and whether and how continuous flow could be
identified under such a regime. This same alternative approach could
also be applied to the ``continuous surface connection'' definition,
where surface water inundation would be required for at least 90 days
or 270 days as opposed to ``surface water at least during the wet
season,'' as proposed. See section V.D.3 of this preamble for a similar
discussion on this alternative approach for continuous surface
connection.
---------------------------------------------------------------------------
\51\ Rapanos, 547 U.S. at 739, n.5 (``By describing `waters' as
`relatively permanent,' we do not necessarily exclude streams,
rivers, or lakes that might dry up in extraordinary circumstances,
such as drought. We also do not necessarily exclude seasonal rivers,
which contain continuous flow during some months of the year but no
flow during dry months.'').
---------------------------------------------------------------------------
Furthermore, the agencies are not proposing to define ``relatively
permanent'' using only physical indicators of flow, such as with a
requirement for an ordinary high water mark and bed and banks. For
purposes of implementation of the proposed rule, ``bed and banks''
means the substrate and sides of a channel, lake, or pond between which
standing water or continuous flow is ordinarily confined, as discussed
further in section V.5 of this preamble. Though the agencies consider
indicators of flow to be appropriate for defining ``tributary,'' as
discussed further below in section V.C.4 of this preamble, the agencies
propose that physical indicators of flow would be inadequate to define
relatively permanent because streams that flow only in direct response
to precipitation, such as ephemeral streams, sometimes have an ordinary
high water mark as well as bed and banks. The agencies and members of
the public thus could struggle to consistently and effectively use
physical indicators to distinguish between a non-relatively permanent
stream flowing for a short duration only in response to precipitation
and a jurisdictional relatively permanent tributary.
Similarly, the agencies solicit comment on whether relatively
permanent should be defined consistent with the pre-2015 regulatory
regime such that relatively permanent waters are those that typically
have standing or flowing water year-round or that have standing or
continuously flowing water at least seasonally (e.g., typically three
months).\52\ This approach explicitly incorporates the ``seasonal''
term used in the Rapanos plurality opinion, although some stakeholders
believe the seasonal approach may not be consistent with Sackett. In
addition, it reflects the approach taken by the agencies since the 2008
Rapanos Guidance, so practitioners would have experience implementing
it. This approach allows for regionalization given the three-month
example provided which could vary to account for seasonal differences
across the country. This approach differs from the proposed rule's
approach because regions which have bodies of surface water that are
standing or continuously flowing with seasonal flow for less than 90
days (e.g., the arid West) would still be considered relatively
permanent, while the rest of the country would simply need to
demonstrate having at least seasonal flow, typically three months in
duration, regardless of their specific wet season length. For example,
under this alternative approach, even if the wet season is five months,
continuous flow could occur for 90 days and be considered relatively
permanent. Whereas under the proposed approach, the entire country
would need to demonstrate flow at least during their regionally-
specific wet season. Alternatively, the agencies could implement
seasonal flow to mean continuous surface flow except during dry
months.\53\ This approach is similar to the proposed approach,
incorporating concepts from the Rapanos plurality and Sackett while
allowing for regional variation, and uses ``dry months'' language from
the Rapanos plurality footnote, but could be read to require more
extended periods of flow than the proposed approach. The agencies also
solicit comment on these alternative approaches, including whether they
are consistent with the Rapanos plurality and Sackett, as well as any
accompanying implementation methods. The agencies welcome comments
generally on the concept of a ``seasonal'' flow duration and what that
term may include, as well as implementation tools that could be used to
identify such flow duration.
---------------------------------------------------------------------------
\52\ Three months was provided as an example of seasonal flow in
the Rapanos Guidance, but under the pre-2015 regulatory regime the
agencies have flexibility to determine what seasonally means in a
specific case. See Rapanos Guidance at 6-7; U.S. Environmental
Protection Agency and U.S. Army Corps of Engineers. ``Memorandum to
Assert Jurisdiction for NWP-2007-945.'' Available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll5/id/1437 (finding that two months of continuous flow was considered
seasonal flow for site-specific tributaries in a semi-arid region).
\53\ The Rapanos plurality noted that by describing ``relatively
permanent'' waters, the plurality did ``not necessarily exclude
seasonal rivers, which contain continuous flow during some months of
the year but no flow during dry months.'' 547 U.S. at 732 n.5
(emphasis in original).
---------------------------------------------------------------------------
The agencies also solicit comment on the most appropriate method to
identify the wet season under the proposed definition of ``relatively
permanent.'' The agencies propose to focus on precipitation as the one
key driver for wet season identification and intend to use the WebWIMP
outputs reported in APT as a primary tool to help identify the wet
season when precipitation exceeds evapotranspiration rates. Streams
that flow continuously during the wet season are distinct from streams
that flow discontinuously or only in direct response to discrete
precipitation events, such as ephemeral streams. The agencies recognize
that the WebWIMP outputs reported in APT may not have complete
functionality in certain territories, and the agencies are
[[Page 52521]]
exploring ways to improve functionality in those limited circumstances.
Another method could be to identify when the majority of precipitation
occurs in a given location or region based on percentages and utilize
that to identify the wet season, which may better account for
continuous streamflow that can occur in the arid West during monsoon
season. This approach could identify in which months greater than 50%
(or another percentage such as 70%) of the rainfall occurs at the
identified location or region and identify that as the wet season. In
another approach, the agencies could adopt the Wet Season Totals, which
identify the climatologically wettest three months (91 days) of the
year.\54\ The agencies could ensure that this would include multiple
years of data analysis. The agencies solicit comment on whether a
definition of ``wet season'' should be added to the regulatory text to
provide clarity and transparency. The agencies could adopt a definition
that includes the months when precipitation exceeds evapotranspiration
or the agencies could adopt any of the options described above for a
definition.
---------------------------------------------------------------------------
\54\ Funk, C., Harrison, S., Alexander, L., Peterson, P.,
Behrangi, A., and Husak, G. 2019. ``Exploring trends in wet-season
precipitation and drought indices in wet, humid and dry regions.''
Environmental Research Letters 14(11): 115002. Available at https://iopscience.iop.org/article/10.1088/1748-9326/ab4a6c.
---------------------------------------------------------------------------
The agencies propose to have the flow ``at least during the wet
season'' be specifically bound by the wet season such that the number
of months with continuous flow would need to be at least throughout the
entirety of the wet season. For example, if a wet season extended for
six months, the stream would need to flow for at least six months
coincident with the identified wet season to be considered relatively
permanent. The agencies solicit comment on whether this is an
appropriate approach for identifying ``at least during the wet
season,'' and whether implementation of this approach is feasible. The
agencies also specifically solicit comment on how this might be
implemented when there may be a lag in the surface hydrology response
to seasonal precipitation as described at section V.C.1 of this
preamble above. Such an approach could result in many streams in the
arid West not meeting the proposed definition of ``relatively
permanent,'' and the agencies solicit comment on the implications of
such an approach in those arid West States. In an alternative approach,
the agencies could interpret ``at least during the wet season'' where
surface hydrology must occur for at least a proportionate amount of
time as the identified wet season duration which would be in response
to the wet season but need not be coincident with the specific wet
season timeframe. For example, if a wet season extended from December
through March (a wet season of four months), the stream would need to
flow for at least four months to be considered relatively permanent,
even if the surface hydrology occurred for four months from February
through May. In another alternative approach, the agencies could
interpret ``at least during the wet season'' where surface hydrology
must occur for at least some months in response to the wet season.
Under this approach, the agencies would not require the flow to occur
throughout the wet season but would still require flow to occur for at
least some months of continuous flow. This duration would extend beyond
merely weeks, or even one month, and would require flow for at least an
extended period of time of some months during or in response to the wet
season. This alternative approach differs from the one described
immediately above in that the flow duration would not be required to be
of equal duration as the duration of the wet season (e.g., a wet season
extending from December through April, a five-month duration, but the
stream has flow duration from March through May, a three-month
duration; such surface hydrology is in response to the wet season but
is not of equal duration). This approach may better account for
climatological differences in certain regions, such as the arid West.
The agencies request comment on whether this alternative approach is
consistent with the plurality opinion in Rapanos and Sackett. To be
clear, the agencies do not intend for the proposed approach or any of
the alternative approaches to encompass ephemeral streams or any
streams that flow only in direct response to discrete precipitation
events.
Another aspect of the proposed definition of ``relatively
permanent'' is to identify when surface hydrology occurs in a given
waterbody at least during the wet season, and a number of
implementation methods and tools could be used. The agencies
acknowledge that landowners often know when surface hydrology is
occurring in waterbodies on their land, and such visual observations
and other local knowledge and records would be helpful when identifying
the occurrence and duration of surface hydrology. One specific tool
that could also be used would be the agencies' regional streamflow
duration assessment methods (SDAMs),\55\ which are rapid field-based
methods that can be used to identify both streams that contain flowing
water continuously during a year of normal rainfall, as well as streams
that contain sustained flowing water for part of the year, typically
during the wet season, where the streambed may be below the water table
and/or where snowmelt provides sustained flow. See section V.C.5 of
this preamble for additional discussion of the agencies' regional
SDAMs. Another tool that could be used under this approach is the USGS
Enhanced Runoff Method, which provides mean annual flow estimates for
streams mapped in the NHDPlus High Resolution. The agencies seek
comment on whether any of these tools and approaches should be used to
identify wet season, or whether there are other methods and tools
available, and how such methods would be employed for lakes and ponds
which would also require relatively permanent flow under either
category (a)(3) or (a)(5).
---------------------------------------------------------------------------
\55\ See https://www.epa.gov/streamflow-duration-assessment.
---------------------------------------------------------------------------
The agencies also solicit comment on whether the terms ``standing
or continuously flowing'' in the proposed definition of ``relatively
permanent'' are a helpful clarification or if those terms should be
deleted due to duplication of language in the paragraph (a)(3), (4),
and (5) categories, which all use the phrase ``relatively permanent,
standing or continuously flowing.''
4. Definition of ``Tributary''
The agencies propose to define ``tributary'' to mean ``a body of
water with relatively permanent flow, and a bed and bank, that connects
to a downstream traditional navigable water or the territorial seas,
either directly or through one or more waters or features that convey
relatively permanent flow.'' Further, the agencies' proposed definition
of ``tributary'' clarifies that a ``tributary does not include a body
of water that contributes surface water flow to a downstream
jurisdictional water through a feature such as a channelized non-
jurisdictional surface water feature, subterranean river, culvert, dam,
tunnel, or similar artificial feature, or through a debris pile,
boulder field, wetland, or similar natural feature, if such feature
does not convey relatively permanent flow. When the tributary is part
of a water transfer (as that term is applied under 40 CFR 122.3)
currently in operation, the tributary would retain jurisdictional
status.'' Even if a waterbody does not satisfy the definition of
``tributary,'' it
[[Page 52522]]
may function as a point source (i.e., ``discernible, confined, and
discrete conveyance,'' 33 U.S.C. 1362(14)), such that discharges of
pollutants from these features could require a Clean Water Act permit.
Rapanos, 547 U.S. at 743-44 (Scalia, J., plurality opinion).
This proposed definition is informed by Supreme Court decisions and
would also provide clarity to assist with implementation. Consistent
with previous practice, tributaries under the proposed rule include
natural, man-altered, and man-made waterbodies, such as rivers,
streams, ditches, canals, lakes, ponds, and impoundments, so long as
these waters meet the proposed definition of ``tributary.'' Under the
proposed rule, tributaries can connect directly to a traditional
navigable water or the territorial seas, or they may connect through
other jurisdictional tributaries, adjacent wetlands that convey
relatively permanent flow, certain jurisdictional impoundments, or
jurisdictional paragraph (a)(5) lakes and ponds. Such waters would not
sever upstream jurisdiction for tributaries if they have relatively
permanent flow, or in the case of adjacent wetlands, if relatively
permanent flow occurs through the wetlands, connecting the upstream and
downstream portions of the tributary network. Tributaries under the
proposed rule may also connect through certain features, both natural
(e.g., debris piles, boulder fields, beaver dams) and artificial (e.g.,
culverts, ditches, pipes, tunnels, pumps, tide gates, dams), even if
such features themselves are non-jurisdictional under the proposed
rule, so long as those features convey relatively permanent flow.
Features with non-relatively permanent flow, however, would sever
jurisdiction upstream under the proposed rule, including flow through
non-relatively permanent reaches or streams or wetlands, except when
the tributary is part of a water transfer currently in operation.
Features that sever jurisdiction under the proposed rule would only be
relevant to the paragraph (a)(3) category. Additional information about
implementation of ``tributary'' is discussed in section V.C.5.b of this
preamble below.
With respect to tributaries specifically, the Rapanos plurality,
which was adopted by Sackett, focuses in part on a tributary's
contribution of flow to and connection with traditional navigable
waters. See Rapanos, 547 U.S. at 742 (interpreting surface waters to be
jurisdictional if they are ``relatively permanent bod[ies] of water
connected to traditional interstate navigable waters''). The agencies'
proposed definition of ``tributary'' requires relatively permanent flow
and a connection to a downstream traditional navigable water,
consistent with Supreme Court precedent.
In addition, the agencies' proposal would require that tributaries
have a bed and banks to clearly identify those waters that are
considered tributaries under the proposed rule. The agencies believe
that the proposed definition would provide clear and predictable
jurisdictional boundaries to guide the agencies and the regulated
community. This proposed requirement reflects the approach taken in the
NWPR to ensure that the agencies would not exercise jurisdiction beyond
the scope of clearly definable tributaries and is therefore familiar to
the regulated community and practitioners in the field. Not all
features with relatively permanent flow will have a bed and banks,
however, and may instead display other ordinary high water mark
indicators. Such geographical features with an ordinary high water mark
would not be jurisdictional under the proposed rule. For example,
certain features such as grassed waterways do not have bed and banks
but may have relatively permanent flow and may still connect to a
traditional navigable water or the territorial seas. The agencies
propose that these features would fall beyond the scope of
jurisdictional tributaries under the Clean Water Act, as grassed
waterways are not the kind of ``bodies of water `forming geographic[al]
features' . . . described in ordinary parlance as `streams, oceans,
rivers, and lakes' '' that the Rapanos plurality and Sackett opinions
interpreted to be ``waters of the United States.'' Sackett, 598 U.S. at
671 (quoting Rapanos, 547 U.S. at 739).
In addition, lakes and ponds may be considered a tributary
consistent with the agencies' current implementation if they meet the
proposed definition. Lakes, ponds, and impoundments that contain
standing or continuous flowing water, year round or at least during the
wet season, would be considered to be ``a body of water with relatively
permanent flow'' under the proposed rule. Generally, lakes and ponds do
have a bottom, or bed, as well as side slopes, or banks. These may look
different than the bed and banks of more channelized version of streams
which are tributaries, but the agencies intend that these in-line lakes
and ponds that meet the proposed definition of ``tributary'' would be
considered jurisdictional under paragraph (a)(3). Even though such
waters are considered to be lentic or ``still'' systems, such waters
still contribute flow downstream at the point that they outlet to the
tributary network and therefore the agencies have long concluded it is
appropriate to consider such waters to be tributaries where they
otherwise meet the requirements of the category.
This proposed definition of tributary identifies a category of
rivers and streams that, due to their flow duration (i.e., relatively
permanent flow) and their connection to traditional navigable waters or
the territorial seas, should be deemed federally jurisdictional.
Through this proposed definition of ``tributary,'' the agencies would
also acknowledge the policy direction from Congress to ``recognize,
preserve, and protect the primary responsibilities and rights of States
to prevent, reduce, and eliminate pollution [and] to plan for the
development and use (including restoration, preservation, and
enhancement) of land and water resources.'' 33 U.S.C. 1251(b); see also
Rapanos, 547 U.S. at 737 (Scalia, J., plurality). The proposed approach
to defining ``tributary'' is also intended to limit Federal
jurisdiction over streams and features with non-relatively permanent
flow and other ordinarily dry land features in order to ``preserve, and
protect the primary responsibilities and rights of States to . . . plan
the development and use . . . of land . . . resources.'' See id. at 738
(Scalia, J., plurality) (``Regulation of land use, as through the
issuance of the development permits sought by petitioners in both
[Rapanos and Carabell], is a quintessential state and local power.'');
see also Sackett, 598 U.S. at 674 (``It is hard to see how the States'
role in regulating water resources would remain ``primary'' if the EPA
had jurisdiction over anything defined by the presence of water.'').
With the proposed definition, the agencies seek to avoid
``impairing or in any manner affecting any right or jurisdiction of the
States with respect to waters (including boundary waters) of such
States.'' See 33 U.S.C. 1370. States and Tribes are free to address
rivers, lakes, streams, ponds, and other features that do not meet the
definition of ``relatively permanent'' as ``waters of the State'' or
``waters of the Tribe'' under their own laws to the extent they deem
appropriate.
The agencies solicit comment on all aspects of the proposed
definition of ``tributary'' and implementation of the definition. The
agencies also seek comment on alternative approaches to the definition
of ``tributary,'' such as whether to require ``bed and banks or
additional physical characteristics,'' or whether the inclusion of
``relatively permanent'' is redundant given the regulatory text at
paragraph (a)(3).
[[Page 52523]]
Additionally, the agencies request comment on the proposed
provision of the ``tributary'' definition providing that a tributary
does not include a body of water which contributes surface flow to a
downstream jurisdictional water through a feature that does not convey
relatively permanent flow and under what conditions that may happen.
Hydrologic regime shifts of relatively permanent flow to non-relatively
permanent flow back to relatively permanent flow may be commonly found
in the arid West and mountainous regions. Under the proposed rule,
these shifts from relatively permanent to non-relatively permanent flow
would sever Federal jurisdiction of upstream reaches under the Clean
Water Act. The proposed implementation of the definition of
``tributary'' would require knowledge of whether there are any non-
relatively permanent features downstream of the review area that would
sever jurisdiction.
The agencies also seek comment on the proposed treatment of natural
and man-made features regarding the jurisdictional status of upstream
waters, including whether these features can connect tributaries
downstream when they convey relatively permanent flow or if they should
sever downstream jurisdiction in all cases other than as part of a
water transfer. The Supreme Court has not spoken directly to the
question of whether a non-jurisdictional feature that lacks relatively
permanent flow along or downstream of an otherwise jurisdictional
tributary, lake, pond, or impoundment would sever jurisdiction of
upstream waters. The agencies are interested in comments addressing
whether the current approach is preferable because it avoids
incentivizing the construction of certain features within the tributary
network to prevent relatively permanent flow through the features with
the intent to sever upstream jurisdiction. The agencies recognize,
however, that the Supreme Court has stated that even when a barrier
between a wetland and a water of the United States would ordinarily
remove that wetland from Federal jurisdiction, a property owner may not
carve out wetlands from Federal jurisdiction by illegally constructing
a barrier on wetlands otherwise covered by the Clean Water Act.
Sackett, 598 U.S. at 678 n.16.
The agencies also solicit comment on whether they should instead
adopt the approach similar to the NWPR, whereby a tributary does not
lose its jurisdictional status if it contributes surface water flow to
a downstream jurisdictional water through a channelized non-
jurisdictional surface water feature, through a subterranean river,
through a culvert, dam, tunnel, or other similar artificial feature, or
through a debris pile, boulder field, or similar natural feature. See
85 FR 22277, 22289 (April 21, 2020). The agencies solicit comment on
whether the NWPR approach is easier to implement than the proposed
approach and whether that approach better implements the objectives and
policies of the Clean Water Act. Another approach could provide that a
tributary would lose its jurisdictional status if it contributes
surface water flow to a jurisdictional water through non-surface
features (e.g., subterranean rivers, underground tunnels), even if such
features convey relatively permanent flow. The agencies solicit comment
on such an alternative approach.
Similarly, the agencies seek comment on the proposed approach that
adjacent wetlands with non-relatively permanent flow through them
cannot serve as a connection and therefore sever jurisdiction upstream
of the tributary network. This proposed approach is consistent with the
other proposed approaches for non-relatively permanent flow features
serving as breaks of upstream jurisdiction. The agencies believe this
proposed approach is appropriate because the waterbody would not convey
surface water to a paragraph (a)(1) water year-round or continuously
for extended periods of time, and therefore would not exhibit
relatively permanent flow. The agencies recognize that there are
implementation challenges with the proposed approach as it may be
difficult to ascertain if there are downstream wetlands located at any
point in the tributary's path to a traditional navigable water and
whether those wetlands have relatively permanent flow through them.
The agencies are also interested in hearing from the public
regarding the proposed approach related to water transfers for non-
relatively permanent waters establishing breaks of jurisdiction. The
NPDES permitting exemption under the Water Transfers Rule, 73 FR 33697
(June 13, 2008), does not require NDPES permits for water transfers
between ``waters of the United States'' because they do not result in
the ``addition'' of a pollutant. Id. at 33699. For example, in many
regions of the country, particularly the arid West, inter- and intra-
basin water transfers may originate in relatively permanent waters that
may be disconnected from downstream waters by non-relatively permanent
stream reaches. In many circumstances, those non-relatively permanent
stream reaches may be caused by water management systems, including
through water transfers, water storage reservoirs, flood irrigation
channels, and similar structures. The agencies recognize the importance
of water management practices in the States and the explicit policy
directives of Congress to recognize the authority of States to allocate
and manage water resources within their respective jurisdictions. See
33 U.S.C. 1251(g), 1370. Under the proposed rule, if the upstream
tributaries that are part of a water transfer ultimately flow through
non-relatively permanent reaches that eventually connect to traditional
navigable waters or the territorial seas, the upstream tributaries
would retain their jurisdictional status as waters of the United
States. The agencies believe this is appropriate to ensure vital water
management practices continue as currently implemented regarding water
transfers.
5. Implementation
a. Implementation of ``Relatively Permanent''
The agencies are proposing ``relatively permanent'' to mean
``standing or continuously flowing bodies of surface water that are
standing or continuously flowing year-round or at least during the wet
season.'' Bodies of surface water that are ``standing'' are meant to
encompass lakes, ponds, and similar features that have standing water
year-round or at least during the wet season and that are part of the
tributary system, as such waters that outlet to the tributary network
and contribute relatively permanent flow downstream at the outlet
point. ``Continuously flowing'' waterbodies under this proposed rule is
meant to encompass streams, rivers, ditches, and similar features that
are considered under the paragraph (a)(3) tributaries categories. In
addition, a tributary's frozen status for parts of the year does not
preclude it from having flow year-round or at least during the wet
season under this proposed rule. Such tributaries typically have
flowing water underneath the frozen surface. Frozen segments of rivers
and streams also are not intended to serve as features that sever
jurisdiction. This section is meant to address implementation of the
proposed definition of ``relatively permanent'' more broadly for both
categories of waters. The agencies are seeking comment on all aspects
of their proposed implementation of ``relatively permanent,'' including
if there are additional tools and methods to assist with
implementation.
A key factor the agencies typically consider when assessing the
length and
[[Page 52524]]
timing of expected flow during the ``wet season'' is the geographic
region. The time period, including duration, constituting a ``wet
season'' varies across the country due to many relevant factors
including climate, hydrology, topography, soils, and other conditions.
For example, in parts of the Southeast, precipitation may be
distributed somewhat uniformly throughout the year, but increased
evapotranspiration during the growing season can reduce surficial
ground water levels and lead to reduced or absent surface flows late in
the growing season (e.g., late summer or early autumn). Consequently,
``wet season'' flows in the Southeast may typically occur in the winter
or early spring. In other areas, snowmelt drives streamflow more than
rainfall, with wet season flow coinciding with warming temperatures
typically in the spring or early summer.\56\ In some parts of the
country, there may be two distinct wet seasons that are separated by
drier months,\57\ and in such cases, the tributary would need to have
continuous surface hydrology at least during both wet seasons to meet
the definition of ``relatively permanent'' under the proposed rule.
Precipitation includes both rain and snow, as some wet seasons across
the country encompass the winter months and the precipitation events
may often include snowfall.
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\56\ NOAA's Climate Division Scale Palmer Drought Severity Index
(PDSI) dataset is one drought index that may be used to observe dry
and wet conditions in a given region, and the index is used to
display monthly values in the APT. The PDSI integrates
precipitation, evapotranspiration, and soil moisture data into the
monthly drought index. The PDSI Divisional Time Series may be used
to observe PDSI across States and ecoregion divisions on a monthly
scale from a start year of 1895 to 2025. Available at https://www.ncei.noaa.gov/access/monitoring/climate-at-a-glance/divisional/time-series/0101/pdsi/1/0/1895-2025.
\57\ See supra note 47.
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The agencies have experience evaluating if a water is standing or
continuously flowing at least during the wet season and will continue
to use multiple tools, including remote and field-based indicators to
inform decisions. As stated earlier, the agencies intend to use the
WebWIMP outputs as a primary tool for determining the wet season at a
given location. The WebWIMP outputs reported by APT can also be used to
assess the presence of drought conditions, as well as the approximate
dates of the wet and dry seasons for a given location. APT provides
outputs from WebWIMP,\58\ which the agencies intend to use to calculate
wet season. In general, dry months are calculated in WebWIMP (and
displayed in APT outputs) when potential evapotranspiration exceeds
precipitation, resulting in drawdown of soil moisture storage and/or a
moisture deficit. Conversely, the wet season would be calculated when
precipitation exceeds evapotranspiration. In addition, other sources of
information on identification of wet season could include NOAA,\59\
NRCS,\60\ and USGS \61\ sources, among others such as the Frequent
Rainfall Observations on GridS (FROGs).\62\
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\58\ Id.
\59\ NOAA, NCEI Climate Normals available at https://www.ncei.noaa.gov/products/land-based-station/us-climate-normals;
https://www.nohrsc.noaa.gov/nsa/.
\60\ Snow and Climate Monitoring available at https://www.nrcs.usda.gov/resources/data-and-reports/snow-and-climate-monitoring-predefined-reports-and-maps.
\61\ Water Watch Streamflow conditions available at https://waterwatch.usgs.gov/?id=wwsa.
\62\ Available at https://www.aeris-data.fr/catalogue/?uuid=9d01e252-cc35-4849-9cc9-93c0a7e0fa7b. Further metrics may be
derived using precipitation indices from FROGS database to evaluate
wet seasons such as the'' Wet Seasons Totals (WST)'' in Funk et al.
2019.
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Implementation of ``relatively permanent'' in this proposed rule
does not require that relatively permanent standing or continuously
flowing water come from particular sources, such as groundwater,
upstream contributions, effluent flow, or snowpack melts. This proposed
rule's approach is consistent with the plurality opinion in Rapanos,
which lays out the relatively permanent standard and does not require
that relatively permanent waters originate from any particular source.
See, e.g., 547 U.S. at 739.
In addition, in certain regions relatively permanent standing or
continuously flowing water could result from a concentrated period of
back-to-back precipitation events that leads to sustained standing or
flowing water through a combination of runoff and upstream
contributions of water or an elevated groundwater table that provides
baseflow to the channel bed or groundwater inflow to lakes or ponds.
However, in all circumstances, such flow must also occur for a duration
that extends through at least the wet season. In contrast, under the
proposed rule, tributaries would be determined to have non-relatively
permanent flow where the feature flows only during, or shortly after,
individual precipitation events (including rainfall or snowfall
events), and lakes and ponds would be determined to be non-relatively
permanent where the feature has standing water only during, or shortly
after, individual precipitation events. Non-relatively permanent
flowing or standing water may occur simply because it is raining or has
very recently rained, or because recent snowfall has melted, but in any
case, would not be determined to be federally jurisdictional under this
proposed rule. Streamflow that occurs during the monsoon season in
certain parts of the country (typically June through September in the
arid West) may be relatively permanent or non-relatively permanent
under the proposed rule, depending on the whether there is flow at
least continuously during the ``wet season'' and lakes and ponds that
have standing water during the ``wet season'' would be considered
relatively permanent waters under this proposed rule regardless of the
source of water during the wet season.
Documenting jurisdiction is typically accomplished by the
Corps,\63\ including for determining if a water is relatively
permanent. The Corps is responsible for conducting or verifying
jurisdictional determinations on a case-by-case basis. The agencies do
not intend for their analysis of any features outside of a
jurisdictional determination review area to result in an official
approved jurisdictional determination on those other water bodies.
Jurisdictional determinations can be informed by observations made
during one or more field investigations and/or the use of remote tools.
When conducting field investigations, the Corps must determine whether
the observations made during the field investigation represent normal
climatic conditions, in other words, what is typical for the time of
year the field investigation was performed. Conditions need not be
normal at the time of the investigation (e.g., they may be wetter or
drier than normal) but understanding whether field conditions represent
normal climatic conditions helps the Corps know how to interpret
observations made during the field investigation (e.g., the field
investigator observed flowing water during drier than normal
conditions). This proposal would consider these practices, and the
Corps would utilize various types of tools, data, and methodologies to
determine whether conditions are normal (e.g., the APT).
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\63\ See, e.g., 33 CFR 331.2 and RGL 16-01, available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll9/id/1256.
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b. Implementation of Tributaries
Under the proposed rule, relatively permanent tributaries include
rivers, streams, lakes, ponds, and other standing or continuously
flowing bodies of surface water that are standing or continuously
flowing year-round or at
[[Page 52525]]
least during the wet season, that have a bed and banks, and connect to
a downstream traditional navigable water or the territorial seas,
either directly or through one or more waters or features that convey
relatively permanent flow. Consistent with longstanding practice,
streams that have been altered or relocated can be tributaries under
the proposed rule. An altered tributary is one in which the flow or
geomorphic conditions have been modified in some way, for example, by
straightening a sinuous tributary, adding concrete or riprap to
stabilize the banks of a tributary, reducing flow conditions from year-
round to continuous flow during the wet season due to water
withdrawals, or widening or adding physical features (such as riffle/
pool complex restoration or check dams) to the tributary to reduce the
velocity of flow. A relocated tributary is one in which a portion of
the tributary may be moved to a different location, as when a tributary
is rerouted around a city center to protect it from flooding or around
a mining complex to enable extraction of commercially valuable
minerals. The agencies do not intend for the proposed ditch exclusion
to be applied to these relocated tributaries. To be considered a
jurisdictional tributary under the proposed rule, such features must
continue to meet the proposed definition of ``tributary.'' The agencies
are seeking comment on all aspects of implementation of tributaries
under the proposed rule discussed in this section, including if there
are additional tools and methods to assist with implementation.
For purposes of implementation of the proposed rule, ``bed and
banks'' means the substrate and sides of a channel, lake, or pond
between which standing water or continuous flow is confined. The banks
constitute a break in slope between the edge of the bed and the
surrounding terrain, and may vary from steep to gradual. In many
tributaries, the bed is that part of the channel below the ordinary
high water mark, and the banks often extend above the ordinary high
water mark. For other tributaries, such as those that are incised,
changes in vegetation, changes in sediment characteristics, staining,
or other ordinary high water mark indicators may be found within the
vertical profile of the banks. In concrete-lined channels, the concrete
acts as the bed and banks. The agencies are not proposing to change
their longstanding implementation that ordinary high water marks define
the lateral limits of jurisdiction in non-tidal waters, provided that
the limits of jurisdiction are not extended by adjacent wetlands. 33
CFR 328.4; RGL 05-05 at 1 (December 7, 2005). In addition, the agencies
consider lakes and ponds to also have a bed (the bottom of lake or
pond) and banks (the side slopes of the lake or pond), and as such,
they would meet the definition of tributary and fall under category
(a)(3) if they are a relatively permanent water.
Under this proposed rule, tributaries that meet the definition of
``relatively permanent'' are jurisdictional under the Clean Water Act
as ``waters of the United States,'' as discussed in section V.C of this
preamble. The agencies are proposing to evaluate tributaries to
determine if they have relatively permanent flow on a ``reach'' basis
utilizing the approach used in the NWPR, where ``reach'' would mean a
section of a stream or river along which similar hydrologic conditions
exist, such as discharge, depth, area, and slope.\64\ If a relatively
permanent tributary reach becomes non-relatively permanent and then
relatively permanent and then non-relatively permanent again, it may be
viewed as four separate reaches, especially if they also share other
similarities with respect to depth, slope, or other factors. When such
transitions of flow classification occur, the agencies would use best
professional judgment and available tools to identify where the change
in flow classification occurs under the proposed rule. The non-
relatively permanent reaches would sever jurisdiction of upstream
reaches under the proposed rule, except where the tributary is part of
a water transfer currently in operation. In general, a reach can be any
length of a stream or river, but the agencies are clarifying for
implementation purposes for the proposed rule that such length is
bounded by similar flow characteristics. The agencies seek comment on
this approach to ``reach.''
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\64\ See Connectivity Report at A-10, defining ``reach'' as ``a
length of stream channel with relatively uniform discharge, depth,
area, and slope.'' A similar definition is used by the USGS (USGS.
``What is a reach?'' Available at https://www.usgs.gov/faqs/what-a-reach) (describing a reach as ``a section of a stream or river along
which similar hydrologic conditions exist, such as discharge, depth,
area, and slope'').
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Potential tributaries can be identified on the landscape using
direct observation or various remote sensing resources such as USGS
stream gage data,\65\ USGS topographic maps,\66\ high-resolution
elevation data and associated derivatives (e.g., slope or curvature
metrics),\67\ Federal Emergency Management Agency (FEMA) flood zone
maps,\68\ NRCS soil maps,\69\ USGS hydrography datasets,\70\ National
Wetlands Inventory (NWI) data,\71\ USGS Landsat Dynamic Surface Water
Extent (DSWE) Science Products,\72\ maps and geospatial datasets from
State, Tribal, or local governments, and/or aerial or satellite
imagery. Both direct field observations and remote tools may establish
the presence of a bed and banks.
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\65\ https://waterdata.usgs.gov/nwis/rt.
\66\ https://www.usgs.gov/programs/national-geospatial-program/topographic-maps.
\67\ USGS 3D Elevation Program, available at https://www.usgs.gov/3d-elevation-program.
\68\ https://msc.fema.gov/portal/home.
\69\ https://websoilsurvey.sc.egov.usda.gov/App/WebSoilSurvey.aspx.
\70\ NHD, available at https://www.usgs.gov/national-hydrography/national-hydrography-dataset; 3D Hydrography Program
(3DHP), available at https://www.usgs.gov/3dhp.
\71\ https://www.fws.gov/program/national-wetlands-inventory/wetlands-data.
\72\ https://www.usgs.gov/landsat-missions/landsat-dynamic-surface-water-extent-science-products.
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Visual observations of surface hydrology are a useful primary
method to identify if a potential tributary has relatively permanent
flow under the proposed rule. The agencies expect that landowners will
often have sufficient knowledge to understand how water moves through
their properties. The agencies also recognize that a single visual
observation may not always be sufficient to accurately determine
relatively permanent flow, and visual observations should generally be
combined with precipitation and other climate data and expected flow
seasonality to accurately determine flow duration. For example,
observing flow only directly after a large rainfall or observing no
flow during the dry season may not be good indicators of a stream's
typical flow duration.
In addition to visual observations of surface hydrology, the
agencies may use field-based indicators and tools as another line of
evidence to determine flow duration. Regionalized SDAMs that use
physical and biological field indicators, such as the presence of
hydrophytic vegetation and benthic macroinvertebrates, can also be used
to help determine if potential tributaries have continuously flowing
water year-round or at least during the wet season.\73\ SDAMs are a
rapid field
[[Page 52526]]
method that can be performed in a single site visit under normal
climatic conditions. SDAMs are a regionally specific, publicly
available, and time and cost effective alternative to prolonged
hydrologic sampling methods. Other agencies have developed similar
tools that may be useful in implementing this proposed rule.\74\ Flow
duration classifications can then be used to assist in determining the
relative permanence of the tributary, as that term is defined in the
proposed rule. Ultimately, multiple indicators, data points, and
sources of information may be used to determine if the potential
tributary has relatively permanent flow using the weight of evidence.
The agencies are soliciting comment on implementation methods and tools
that could be used to identify and distinguish relatively permanent
flow durations from non-relatively permanent flow durations as defined
in this proposal, including the tools and methods discussed in this
section. The agencies are specifically interested in any challenges
related to the use of SDAMs and comments related to how this tool could
be refined to address such challenges moving forward. The proposed rule
applies the same basic principles to the category of paragraph (a)(5)
lakes and ponds to determine if they are relatively permanent waters.
See section V.E of this preamble.
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\73\ In the regional SDAMs developed by EPA and the Corps,
ephemeral reaches are channels that flow only in direct response to
precipitation. Water typically flows only during and/or shortly
after large precipitation events, the streambed is always above the
water table, and stormwater runoff is the primary water source.
Intermittent reaches are channels that contain sustained flowing
water for only part of the year, typically during the wet season,
where the streambed may be below the water table and/or where the
snowmelt from surrounding uplands provides sustained flow. The flow
may vary greatly with stormwater runoff. Perennial reaches are
channels that contain flowing water continuously during a year of
normal rainfall, often with the streambed located below the water
table for most of the year. Groundwater typically supplies the
baseflow for perennial reaches, but the baseflow may also be
supplemented by stormwater runoff and/or snowmelt. Although these
terms are not synonymous with the terms non-relatively permanent and
relatively permanent as used in this proposed rule, the SDAMs are
still informative and can be used to demonstrate that a tributary is
relatively permanent. Available at https://www.epa.gov/streamflow-duration-assessment/learn-about-regional-sdams.
\74\ E.g., Methodology for Identification of Intermittent and
Perennial Streams and Their Origins, developed by the North Carolina
Division of Water Quality, available at https://files.nc.gov/ncdeq/Water%20Quality/Surface%20Water%20Protection/401/Policies_Guides_Manuals/StreamID_v_4point11_Final_sept_01_2010.pdf.
See also Fairfax County. 2003. Perennial Stream Field Identification
Protocol. Fairfax County Stormwater Planning Division, Fairfax
County, Virginia. 16 pp. Available at: https://www.fairfaxcounty.gov/publicworks/sites/publicworks/files/assets/documents/pdf/03_ps_protocol_ada.pdf.
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One step in determining whether a waterbody is a tributary under
the proposed rule is to identify whether the waterbody is part of a
tributary system of a paragraph (a)(1) water. A tributary under the
proposed rule can connect to a downstream traditional navigable water
or the territorial seas through other relatively permanent tributaries,
category (a)(2) impoundments, or category (a)(5) lakes and ponds. Under
the proposed rule, a tributary can also connect to a downstream
traditional navigable water or the territorial seas through certain
artificial or natural features, including a channelized non-
jurisdictional surface water feature, subterranean river, culvert, dam,
tunnel, or similar artificial feature, or through a debris pile,
boulder field, wetland, or similar natural feature, so long as those
features also convey relatively permanent flow. In evaluating the
flowpath from a tributary to determine if it connects to a traditional
navigable water or the territorial seas, the agencies can use USGS
maps, NWI data, knowledge or maps developed at State, Tribal, or local
levels, on the ground tests, including dye tests or tracers, field
observations, or aerial and satellite imagery or other remote sensing
information. The agencies can also use available models, including
models developed by Federal, Tribal, State, and local governments,
academia, and the regulated community.\75\ These tools could be used in
conjunction with field observations, data, and other desktop tools to
evaluate whether a tributary flows to a paragraph (a)(1) water. The
agencies seek input on other tools that may be helpful in such
evaluation.
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\75\ One such model includes the USGS StreamStats ``Flow
(Raindrop) Path'' GIS tool which allows the user to click a point on
a map, after which a flowpath is drawn to estimate where water may
flow from that point to the stream network, eventually making its
way to the ocean if the tributary network allows for it available at
https://streamstats.usgs.gov/ss/. The StreamStats tool may
potentially be used to identify the flowpath from the subject waters
to the downstream paragraph (a)(1) water using the ``Flow (Raindrop)
Path'' component of the tool. Digital elevation models may also be
useful in helping to model stream networks and flowpaths (e.g., the
National Elevation Dataset, available at https://www.usgs.gov/publications/national-elevation-dataset).
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For tributaries that contribute flow to a downstream paragraph
(a)(1) water through a ditch that is proposed to be excluded under
paragraph (b)(3), so long as the ditch has relatively permanent flow,
it does not sever jurisdiction upstream under the proposed rule. Under
the proposed rule, adjacent wetlands that lie along the flowpath
between the tributary and paragraph (a)(1) water \76\ do not sever
jurisdiction where the wetlands have relatively permanent flow,
connecting the upstream and downstream reaches of the otherwise
jurisdictional tributary. This can be demonstrated with physical
indicators of relatively permanent flow through the wetland, including
through discernible flow features. Conveyance of relatively permanent
flow can occur as discernible flow channels (such as rivulets through
marshes) or can be demonstrated by physical indicators such as bent
over or matted vegetation, both of which can help trace the flow
through the wetland. However, additional evidence would be needed to
determine such flow is relatively permanent. Aerial or satellite
imagery may also demonstrate the presence of discernible flow features
through the wetland as well as demonstrate that the flow is relatively
permanent.\77\ The agencies seek comment on these aspects of
implementation of the proposed definition of ``tributary.''
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\76\ These in-stream wetlands are sometimes called throughflow
wetlands. See, e.g., Tiner, R.W. 2014. Dichotomous Keys and Mapping
Codes for Wetland Landscape Position, Landform, Water Flow Path, and
Waterbody Type: Version 3.0. U.S. Fish and Wildlife Service,
National Wetlands Inventory Program, Northeast Region, Hadley, MA,
65 pp plus Appendices. Available at https://www.fws.gov/sites/default/files/documents/Dichotomous-Keys-and-Mapping-Codes-for-Wetland-Landscape-Position-Landform-Water-Flow-Path-and-Waterbody-Type-Version-3.pdf. (Describing throughflow wetlands as those that
receive surface water from a stream, other waterbody or wetland
(i.e., at a higher elevation) and surface water passes through the
subject wetland to a stream, another wetland, or other waterbody at
a lower elevation; a flow-through system). Note that some wetlands
along the flowpath of a potential tributary to a paragraph (a)(1)
water may be considered bidirectional in this report, though not all
bidirectional wetlands addressed in the report would be flowpath
wetlands.
\77\ See the USGS Dynamic Surface Water Extent dataset.
Available at: https://www.usgs.gov/landsat-missions/landsat-dynamic-surface-water-extent-science-products.
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Even where there are downstream features that potentially sever
jurisdiction upstream, additional analysis would be needed to see if
the tributary is part of a water transfer in current operation exempt
from NPDES permitting under EPA's Water Transfers Rule, 73 FR 33697
(June 13, 2008), as discussed in section V.F.2 of the preamble. In such
a case, the tributary would retain its jurisdictional status. The
agencies may rely on the coordination aspect of cooperative federalism
practices with individual States to identify any water transfers in
current operation, as records on water transfers are often available
from relevant State agencies. The agencies seek comment on this aspect
of implementation of the proposed definition of ``tributary,''
including on sources of information that can be relied on to determine
if a tributary is part of a water transfer.
[[Page 52527]]
D. ``Continuous Surface Connection''
1. Definition and Scope of ``Continuous Surface Connection''
The agencies are not proposing to revise the definition of
``adjacent,'' which means ``having a continuous surface connection.''
33 CFR 328.3(c)(2), 40 CFR 120.2(c)(2). Under the proposed rule, and
consistent with current implementation, both paragraph (a)(4) adjacent
wetlands and paragraph (a)(5) relatively permanent lakes and ponds must
have a continuous surface connection to a water of the United States to
be jurisdictional. In this proposal, however, the agencies would define
``continuous surface connection'' for the first time to mean ``having
surface water at least during the wet season and abutting (i.e.,
touching) a jurisdictional water.'' Thus, the agencies' proposed
definition of ``continuous surface connection'' provides a two-prong
test that requires both (1) abutment of a jurisdictional water; and (2)
having surface water at least during the wet season.
The phrase ``abutting'' would be implemented consistent with the
March 2025 Continuous Surface Connection Guidance to mean ``touching.''
The phrase ``having surface water at least during the wet season'' in
the proposed definition is intended to include wetlands that have at
least semipermanent surface hydrology that is persistent surface water
hydrology uninterrupted throughout the wet season except in times of
extreme drought and would not include wetlands without semipermanent
surface hydrology, including wetlands with only saturated soil
conditions supported by groundwater. Under this proposed approach, only
those portions of a wetland with continuous surface hydrology at least
during the wet season, and that are abutting, would be jurisdictional
as adjacent wetlands, no matter the full delineated scope of the
wetland. The use of ``surface water at least during the wet season''
does not require that the surface water be the result of flooding from
an external waterbody or any other particular source, but rather the
persistent presence of surface water uninterrupted throughout the wet
season (i.e., throughout the duration of the wet season) as described
above. The agencies propose that wet season as used in the proposed
continuous surface connection definition be implemented in the same
manner as described under the proposed relatively permanent definition
section of this preamble. As stated above, only the portion of an
abutting wetland which demonstrates surface water at least during the
wet season would be jurisdictional--for example, if the wetland
transitions from having surface water at least during the wet season
(where it abuts the jurisdictional water) to seasonally saturated, only
the portion that has surface water at least during the wet season would
be considered to be adjacent under the proposed rule. See section V.D.4
of this preamble for additional information about implementation of
``continuous surface connection.'' The agencies solicit comment on all
aspects of the definition of ``continuous surface connection'' in this
proposed rule. The agencies acknowledge that the requirement for
surface water at least during the wet season might result in few
wetlands being found to have a continuous surface connection under the
proposed rule, particularly in the arid West. The agencies solicit
comment on the implications of this requirement in the arid West and
other regions.
2. Basis for the Proposed Definition
The proposed requirement that paragraph (a)(4) adjacent wetlands
and paragraph (a)(5) relatively permanent lakes and ponds must have a
continuous surface connection to be jurisdictional, and the agencies'
proposed definition of ``continuous surface connection,'' reflects the
agencies' best efforts to interpret the SWANCC, Rapanos plurality, and
Sackett holdings with respect to adjacency in an implementable way,
informed by the agencies' technical expertise in implementing the Clean
Water Act for over fifty years.
The Supreme Court has articulated several key principles that have
guided the agencies in determining the ``point at which water[s of the
United States] end[ ] and land begins'' for purposes of this proposed
rule. See Riverside Bayview, 474 U.S. at 132. First, the plurality
opinion in Rapanos and the Sackett decision have recognized that the
Clean Water Act term ``waters of the United States'' covers at least
some wetlands; specifically, those wetlands that are ``adjacent'' to
surface waters. Rapanos, 547 U.S. at 741 (Scalia, J., plurality
opinion) (citing 33 U.S.C. 1344(g)(1)); Sackett, 598 U.S. at 676
(citing 33 U.S.C. 1344(g)(1)). Such wetlands ``must be
indistinguishably part of a body of water that itself constitutes
`waters' under the CWA''--in other words, such wetlands are ``
`includ[ed]' within `the waters of the United States' '' and may be
federally regulated only when ``indistinguishable'' from the surface
waters. Sackett, 598 U.S. at 677.
Second, and relatedly, the Supreme Court has defined the scope of
adjacent wetlands to include only those with a continuous surface
connection to jurisdictional surface waters. In Rapanos, the plurality
held that ``only 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.'' Rapanos, 547 U.S.
at 742 (Scalia, J., plurality opinion). In Sackett, the Supreme Court
stated that it ``agree[s] with this formulation of when wetlands are
part of `the waters of the United States.' '' Sackett, 598 U.S. at 678
(citing Rapanos, 547 U.S. at 742, 755). Sackett explicitly held that
``the CWA extends to only those wetlands that are `as a practical
matter indistinguishable from waters of the United States.' '' Id. The
Court stated that this test ``requires the party asserting jurisdiction
over adjacent wetlands to establish `first, that the adjacent [body of
water constitutes] . . . ``water[s] 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. at 678-79.
The Sackett decision recognized that temporary interruptions in surface
connection may occur, such as during periods of drought or low tide.
Id. at 678. Importantly, the Rapanos plurality also held that
``adjacent'' means ``physically abutting,'' and used ``abutting'' and
``adjacent'' interchangeably. Rapanos, 547 U.S. at 748; see also id. at
747 n.12 (``[T]he statutory definition [of `navigable waters'] can be
read to include some wetlands--namely, those that directly `abut'
covered waters.'') (emphasis in original).
The proposed definition of ``continuous surface connection'' is
based on two principles: the inclusion of ``adjacent wetlands'' in the
scope of Clean Water Act jurisdiction and the interpretation of
``adjacency'' as a ``continuous surface connection.'' The agencies'
proposed interpretation of ``continuous surface connection,'' in turn,
has two parts: first, a requirement for having surface water at least
during the wet season; and second, a requirement that the relevant
feature abut, i.e., touch, a jurisdictional water. When these
requirements are satisfied, the wetland has a continuous surface
connection and can be said to be
[[Page 52528]]
indistinguishable from the surface waters that form the core of Federal
jurisdiction under the Clean Water Act.
With respect to surface water at least during the wet season, all
paragraph (a)(5) relatively permanent lakes and ponds contain surface
water at least during the wet season and would easily meet this part of
the definition. By definition, lakes and ponds contain surface
water.\78\ Not all water features that meet the agencies' definition of
``wetlands'' would meet the test of having surface water at least
during the wet season, however. The agencies' current definition of
``waters of the United States'' defines ``wetlands'' as ``those areas
that are inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted
for life in saturated soil conditions. Wetlands generally include
swamps, marshes, bogs, and similar areas.'' 33 CFR 328.3(c)(1). The
agencies are not proposing to alter this longstanding definition.
However, meeting the agencies' ``wetlands'' definition would not
automatically render that wetland jurisdictional. Only those wetlands
that meet the regulatory definition of ``wetlands,'' are abutting a
water of the United States, and have surface water at least during the
wet season would be jurisdictional as adjacent wetlands under the
proposed rule. The agencies also believe that the incorporation of wet
season into the proposed definition of ``continuous surface
connection'' can be viewed as a bright line test, as it would provide a
duration threshold requirement for which an abutting wetland or an
abutting lake or pond must have surface water in order to be considered
jurisdictional. Unlike typical bright line approaches, however, the
agencies' proposed approach would also allow for regional variation
given the range in hydrology and precipitation throughout the country.
---------------------------------------------------------------------------
\78\ See, e.g., Merriam-Webster.com Dictionary, available at
https://www.merriam-webster.com/ (defining ``lake'' as ``a
considerable inland body of standing water'' and ``pond'' as ``a
body of water usually smaller than a lake''). Accessed July 7, 2025;
USGS ``Water Science Glossary,'' available at https://www.usgs.gov/special-topics/water-science-school/science/water-science-glossary,
and USGS ``Lakes and Reservoirs'' webpage, available at https://www.usgs.gov/special-topics/water-science-school/science/lakes-and-reservoirs (defining ``lake'' as ``where surface-water runoff (and
maybe some groundwater seepage) have accumulated in a low spot,
relative to the surrounding countryside''); see also USGS ``National
Hydrography Dataset (NHD) Data Dictionary Feature Classes,''
available at https://www.usgs.gov/ngp-standards-and-specifications/national-hydrography-dataset-nhd-data-dictionary-feature-classes
(describing the Lake/Pond category as ``[s]tanding body of water
with a predominantly natural shoreline surrounded by land). See also
Richardson, DC, Holgerson, M.A., Farragher, M.J., Hoffman, K.K.,
King, K.B.S., Alfonso, M.B., Andersen, M.R., Cheruveil, K.S.,
Coleman, K.A., Farruggia, M.J., Fernandez, R.L., Hondula, K.L.,
L[oacute]pez Moreira Mazacotte, G.A., Paul, K., Peierls, B.L.,
Rabaey, J.S., Sadro, S., S[aacute]nchez, M.L., Smyth, R.L., and
Sweetman, J.N. 2022. ``A functional definition to distinguish ponds
from lakes and wetlands.'' Scientific Reports 12(1):10472. Available
at https://pmc.ncbi.nlm.nih.gov/articles/PMC9213426/ (noting that
although pond definitions differ across the world, across ``the
history of limnology, small and shallow waterbodies are widely
referred to as ponds.''
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The proposed requirement of having surface water at least during
the wet season implements the ``indistinguishable'' concept articulated
in the Rapanos plurality and Sackett opinions. A wetland that lacks
surface water during the wet season may often look like dry land and
can be easily distinguishable from the surface waters to which it
abuts. The agencies propose to conclude that such wetlands could be
``clear[ly] demarcate[ed]'' from surface waters and therefore do not
meet the Rapanos plurality and Sackett tests for adjacency. See
Rapanos, 547 U.S. at 742 (Scalia, J., plurality opinion); Sackett, 598
U.S. at 678. The agencies acknowledge that during the dry season, when
either relatively permanent surface waters or abutting wetlands are
dry, or both, wetlands may potentially be more easily distinguishable
from abutting waters. However, the agencies view indistinguishability
during the wet season as sufficient to satisfy the Sackett test.
Requiring permanent indistinguishability based on permanent surface
water in both the paragraphs (a)(1) through (3) and (a)(5) water and
the adjacent wetland would read the modifier ``relatively'' out of the
interpretation of ``relatively permanent'' (as discussed in section
V.C.2 of this preamble) and render the vast majority of wetlands
nonjurisdictional, which the agencies propose is not the best reading
of the Clean Water Act under Sackett. It would also ignore the Rapanos
plurality's statement that ``relatively permanent'' includes
``seasonal'' waters, such as those that do not flow during dry months.
See Rapanos, 547 U.S. at 732 n.5. As discussed in the context of
tributaries, the proposed definition of ``relatively permanent'' would
require flow ``at least during the wet season,'' which is consistent
with the plain meaning of ``waters,'' ``lakes'' and ``streams'' and
with the Rapanos plurality's intent to avoid excluding seasonal waters.
Using the ``wet season'' concept in the continuous surface connection
standard would facilitate implementation because it would be consistent
with implementation of the agencies' proposed application of
``relatively permanent.'' Moreover, it relies on available tools;
WebWIMP already helps to identify the wet season. Additional
information about implementation of this aspect of the proposed
definition of ``continuous surface connection'' is discussed in section
V.D.4.1 of this preamble.
The second part of the proposed definition of ``continuous surface
connection'' requires that the paragraph (a)(4) wetland or paragraph
(a)(5) relatively permanent lake or pond abut, i.e., touch, a
jurisdictional water. This requirement would directly implement the
Rapanos plurality's interpretation of ``adjacent'' as meaning
``physically abutting.'' See Rapanos, 547 U.S. at 742, 747-48 (Scalia,
J., plurality opinion). It would similarly implement the Sackett
opinion's understanding of ``adjacent,'' which ``agree[d]'' with the
Rapanos plurality's ``formulation of when wetlands are part of `the
waters of the United States,' '' and emphasized that adjacent wetlands
must be ``as a practical matter indistinguishable'' from requisite
jurisdictional waters. Sackett, 598 U.S. at 678 (quoting Rapanos, 547
U.S. at 755). Limiting the scope of ``adjacent'' water features to
those having surface water at least during the wet season and that
abut, i.e., touch, a jurisdictional water is a clearly understandable
and transparent approach to implementing the Court's reading of
``adjacency'' as ``indistinguishable.'' This approach will also promote
cooperative federalism by recognizing and preserving the primary
responsibilities and rights of States to prevent pollution within their
borders and to plan the development and use of their land and water
resources. See 33 U.S.C. 1251(b). As the Supreme Court emphasized in
Sackett, the Clean Water Act is not a land use statute, and Congress
did not tie the outer bounds of Federal jurisdiction to ecological
protection. Rather, Congress struck a balance between Federal authority
(rooted in the navigability of waters used in interstate and foreign
commerce) and traditional State prerogatives. See Sackett, 598 U.S. at
674, 683.
The agencies recognize that wetlands, lakes, and ponds that do not
satisfy these two requirements may have some hydrological or ecological
connections to paragraph (a)(1) waters. These features, particularly
wetlands, may provide benefits and services, including flood control,
pollutant filtration, and groundwater recharge that sustains baseflow
in downstream traditional navigable waters. Such connections, however,
do not provide a legal basis for
[[Page 52529]]
the agencies to include non-adjacent or physically isolated wetlands
within the phrase ``the waters of the United States.'' See, e.g.,
Rapanos, 547 U.S. at 741-42 (Scalia, J., plurality opinion) (``SWANCC
rejected the notion that the ecological considerations upon which the
Corps relied in Riverside Bayview--and upon which the dissent
repeatedly relies today . . . provided an 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.'' (emphasis in original;
internal citations omitted)). While ecological benefits are not the
basis for the agencies' line-drawing, the agencies understand that the
Sackett and Rapanos plurality tests encompass those wetlands that are
most likely to provide the greatest degree of certain key ecological
benefits. Specifically, wetlands that abut and have surface water at
least during the wet season are most closely connected to the
jurisdictional waters they touch and therefore are most likely to
provide certain hydrological and ecological benefits such as recharge
of base flow and valuable fish and wildlife habitat. This understanding
is consistent with the traditional Federal role in protecting and
promoting the navigability of waters used in interstate commerce, as
such functions advance the flow and water quality conditions that
support navigable waters. Just as an improvement made to a navigable
water for purposes of facilitating commerce could itself become part of
the navigable water, so also may a water resource that is
indistinguishable from a navigable water ultimately be viewed as within
the scope of the term ``navigable waters'' for purposes of the Clean
Water Act.
The agencies also propose that culverts do not inherently sever the
continuous surface connection when the culvert serves to extend the
relatively permanent water such that the water directly abuts a
wetland, consistent with current implementation of the 2025 Continuous
Surface Connection Guidance. This would be demonstrated by relatively
permanent water flow being present through the culvert as well as an
ordinary high water mark within the culvert which provides the lateral
limits of a tributary extending through the culvert. This proposed
approach would not include the culvert itself as a jurisdictional
feature; however, the relatively permanent tributary flowing within the
culvert would be jurisdictional, with the wetland abutting the
tributary also jurisdictional. The agencies also solicit comment on an
approach where culverts which serve to connect wetland portions on
either side of a road do not inherently sever jurisdiction, but only
when the culvert carries relatively permanent water. The agencies
solicit comment on whether this approach, and the consideration of such
wetland portions as ``one wetland,'' is consistent with the concept of
a continuous surface connection under Rapanos and Sackett.
The agencies propose to modify their approach to mosaic wetlands in
this proposed rule, where mosaic wetlands would not be considered ``one
wetland,'' but rather the agencies would delineate wetlands in the
mosaic individually. In addition, only the portion of a delineated
wetland in a wetland mosaic that meets the definition of continuous
surface connection (``having surface water at least during the wet
season and abutting (i.e., touching) a jurisdictional water'') would be
adjacent under this proposed rule. This approach would also influence
how the agencies identify permafrost wetlands as many permafrost
wetlands are mosaic wetlands. See, e.g., Alaska Regional Supplement at
97.\79\ The agencies received pre-proposal recommendations on
permafrost wetlands that requested that such wetlands be categorically
excluded from consideration as jurisdictional wetlands. While the
agencies are not taking that approach in the proposed rule, they have
considered other approaches to permafrost wetlands and believe that
changes to how wetlands mosaics are considered will address many of the
concerns raised in pre-proposal feedback.\80\ In addition, the
limitation to wetlands that have surface water at least during the wet
season and abut a jurisdictional water will further limit the scope of
permafrost wetlands that are considered to have a continuous surface
connection under the proposed rule. These proposed changes are intended
to provide clarity and consistency to the continuous surface connection
definition. Further description of how these approaches would be
implemented in the field or on the ground are found in section V.D.4 of
this preamble. The agencies solicit comment on whether these proposed
changes to how the agencies identify adjacent wetlands are
implementable and consistent with the law.
---------------------------------------------------------------------------
\79\ U.S. Army Corps of Engineers. 2007. Regional Supplement to
the Corps of Engineers Wetland Delineation Manual: Alaska Region.
Version 2.0. ERDC/EL TR-07-24. Department of the Army, Vicksburg,
MS. Available at https://usace.contentdm.oclc.org/utils/getfile/collection/p266001coll1/id/7608. (Noting that wetland mosaics occur
in areas of discontinuous permafrost (e.g., north-facing slopes, and
burned areas in permafrost-affected regions) and on discharge slopes
in Southcentral Alaska).
\80\ For example, Alaska provided the agencies with pre-proposal
input on permafrost wetlands in their letter to the recommendations
docket (see Docket ID No. EPA-HQ-OW-2025-0093-0506), their
federalism consultation comment letter (see Summary Report of
Federalism Consultation for the Proposed Rule: Updated Definition of
Waters of the United States, available in the docket for the
proposed rule), and their verbal recommendations during the State
listening session (see Summary Report of Pre-Proposal Listening
Sessions for WOTUS Notice: The Final Response to SCOTUS, available
in the docket for the proposed rule).
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3. Alternative Approaches
The agencies seek comment on an alternative approach whereby
wetlands, lakes, and ponds would have a ``continuous surface
connection'' only if they abut, i.e., touch, a jurisdictional water and
have a continuous surface water connection to that water. The agencies
would interpret continuous surface water connection to mean the
perennial presence of surface water (i.e., year-round) over the
wetland, lake, or pond, for example, in a permanently flooded wetland.
The agencies request input on whether this approach better implements
the ``indistinguishable'' standard articulated in Sackett, see 598 U.S.
at 678, and whether this approach would be consistent with the text of
the Act and Riverside Bayview. This approach would be consistent with
the way some courts have interpreted the Rapanos plurality and Sackett,
which is that `` `continuous surface connection' means a surface water
connection.'' United States v. Sharfi, 2024 WL 5244351, at *1 (S.D.
Fla. Dec. 30, 2014); accord United States v. Ace Black Ranches, LLP,
No. 1:24-cv-00113, 2024 WL 4008545, at *4 n.2 (D. Idaho Aug. 29, 2024)
(dismissing the government's complaint for failure to ``connect any
wetlands'' it alleged to be waters of the United States with a
traditional navigable water ``via a sufficient surface-water
connection'').
Under this reading of Sackett, physical abutment is necessary, but
not sufficient, to establish a continuous surface connection. Only
wetlands which have permanent surface water, in addition to abutting a
jurisdictional water, would be adjacent under this alternative
approach. Furthermore, only the portion of such a wetland that has
permanent surface water would be jurisdictional. For example, if a
wetland has permanent surface water where it abuts the jurisdictional
water but as it extends farther inland shifts to seasonal surface
water, only the portion of wetland that has permanent surface
[[Page 52530]]
water would be considered adjacent under this alternative approach. The
agencies note that a wetland delineation would not necessarily be
required for this approach given that the limiting factor is the
requirement for the permanent presence of surface water. However,
identification of permanent surface water may present implementation
challenges. The agencies request comment on whether this approach is
implementable, and on the impacts a continuous surface water connection
requirement would have on the scope of wetlands, lakes, and ponds
covered under the Clean Water Act, considering a very small percentage
of wetland acreage in the United States is characterized by permanent
surface water.
The agencies also request comment on whether ``continuous surface
connection'' is best interpreted to mean simply abutting, i.e.,
touching, consistent with the approach under the March 2025 Continuous
Surface Connection Guidance currently being implemented. See section
IV.B.6 of this preamble. This approach would categorically cover all
wetlands and all lakes and ponds that abut a jurisdictional water,
under paragraphs (a)(4) and (5) of the proposed rule, respectively,
regardless of whether they are characterized by surface water at least
during the wet season. The agencies request comment on whether
wetlands, lakes, or ponds that simply abut a jurisdictional water
should be considered ``indistinguishable'' from surface waters under
Sackett. Under this alternative approach, a landowner or other
interested party could determine immediately whether a wetland, lake or
pond is jurisdictional by looking at its proximity to the
jurisdictional water, without having to take an additional step of
evaluating the wetland's surface hydrology or assess records from other
times during the year.
The agencies seek comment to an alternative approach to
implementing ``wet season'' for continuous surface connection, which
could require ``having surface water for at least 90 days'' or ``having
surface water for at least 270 days.'' Similar to one of the
alternative approaches discussed in section V.C.3 of this preamble
above for relatively permanent waters, this alternative approach could
require that a wetland assessed under paragraph (a)(4) or a lake or
pond assessed under paragraph (a)(5) have surface water for at least 90
days, consistent with what is generally considered to be a season
(i.e., three months) or for at least 270 days, see supra section V.C.3
of this preamble. The agencies again note that this bright line
approach would provide transparency and regulatory certainty for
landowners and is easy to understand. This alternative approach would
also provide a strict threshold cutoff for establishing jurisdiction.
The agencies also seek comment on implementation of such an alternative
approach, including any implementation simplification or challenges of
this approach.
As stated above, the agencies are proposing to modify their current
approach to wetland mosaics and permafrost wetlands. See section V.D.4
of this preamble below. In addition, the agencies solicit comment on
whether the agencies should add a regulatory provision that would
mirror a provision in the Food Security Act definition of ``wetland.''
The Food Security Act provision excludes from the definition of
``wetland'' certain permafrost wetlands in lands with high agricultural
potential in Alaska. 16 U.S.C. 3801(a)(27)) (``this term shall not
include lands in Alaska identified as having high potential for
agricultural development which have a predominance of permafrost
soils''). The USDA has a soil interpretation which can be used to help
identify the relevant lands in Alaska and has procedures for
identifying qualifying parcels that could be used for implementation of
this potential provision.\81\ This alternative approach would enhance
consistency between the Clean Water Act and the wetland conservation
provisions of the Food Security Act (Pub. L. 99-198) with regard to
wetlands, similar to the agencies' approach to prior converted
cropland. The USDA already defines ``wetlands'' similar to the
agencies' current regulations and uses the Corps' 1987 Wetlands
Delineation Manual and Regional Supplements, with a few exceptions.
Adopting the Food Security Act's exclusion of certain permafrost
wetlands in the agencies' definition of ``wetland'' would further align
Federal wetland programs as well as provide additional clarity and
support for cooperative federalism for the State of Alaska. This
approach would also be consistent with the recent Executive Order
addressing development in Alaska.\82\ The agencies request comment on
the proposed exclusion from the definition of ``wetland'' for certain
permafrost wetlands in lands that have agricultural potential in
Alaska, and also request comment on whether this proposed exclusion
would be clearer if it were listed in the ``exclusions'' section of the
definition of ``waters of the United States,'' 33 CFR 328.3(b), rather
than in the definition of ``wetlands'' in section 328.3(c)(1).
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\81\ See NRCS Web Soil Survey, available at https://websoilsurvey.nrcs.usda.gov/app/WebSoilSurvey.aspx. The Web Soil
Survey in Alaska contains an interpretation called ``Alaska Exempt
Wetland Potential (AK),'' which is designed to identify soils with
high agricultural potential that are saturated due to permafrost,
have the potential to thaw and drain when the insulating natural
vegetation is removed, and are expected to be dry enough for normal
tillage within five years of thawing.
\82\ See, e.g., United States, Executive Office of the President
[Donald J. Trump]. Executive Order 14153: Unleashing Alaska's
Extraordinary Resource Potential. January 20, 2025. 90 FR 8347
(January 29, 2025). Available at https://www.govinfo.gov/app/details/DCPD-202500120.
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4. Implementation of Adjacent Wetlands
Before determining if a wetland is jurisdictional, the agencies
must first determine if the wetland in question meets the regulatory
definition of ``wetlands.'' The agencies are not proposing to change
the longstanding definition of ``wetlands'' in paragraph (c)(1). The
agencies' longstanding definition of wetlands, unchanged in this
proposed rule, requires the three factors of hydrology, hydric soils,
and hydrophytic vegetation under normal circumstances. Field work is
often necessary to confirm the presence of a wetland and to accurately
delineate its boundaries. However, in addition to field observations on
hydrology, vegetation, and soils, remote tools and resources can be
used to support the identification of a wetland, including USGS
topographic maps,\83\ NRCS soil maps and properties of soils including
flood frequency and duration, ponding frequency and duration, hydric
soils, and drainage class,\84\ aerial or high-resolution satellite
imagery, high-resolution elevation data,\85\ and NWI maps.\86\ State,
Tribal, and local data sources may also be available to complement the
national datasets.
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\83\ See https://www.usgs.gov/the-national-map-data-delivery/topographic-map-access-points.
\84\ See https://websoilsurvey.sc.egov.usda.gov/App/WebSoilSurvey.aspx, or via the NRCS Gridded Soil Survey Geographic
Database (gSSURGO) available at https://www.nrcs.usda.gov/resources/data-and-reports/gridded-soil-survey-geographic-gssurgo-database.
\85\ See https://apps.nationalmap.gov/downloader/#/.
\86\ See https://www.fws.gov/program/national-wetlands-inventory/data-download.
---------------------------------------------------------------------------
Once a feature is identified as a wetland, if the wetland itself is
not a traditional navigable water (e.g., it is not a tidal wetland),
the agencies assess whether it is adjacent to a traditional navigable
water, the territorial seas, a jurisdictional impoundment, or a
jurisdictional tributary. The agencies are not changing the current
regulatory
[[Page 52531]]
definition of ``adjacent'' which is defined as ``having a continuous
surface connection.'' However, as discussed in section V.D.1 of this
preamble, the agencies have proposed to define ``continuous surface
connection'' for the first time in regulation. The agencies are also
not proposing to change their longstanding implementation of the
lateral limits of jurisdiction, which states that when adjacent
wetlands are present, ``jurisdiction extends beyond the ordinary high
water mark to the limit of the adjacent wetlands.'' 33 CFR 328.4. The
proposed rule, however, would clarify the limits of wetlands that are
considered to be ``adjacent.'' The agencies are seeking comment on all
aspects of implementation of the proposed definition of ``continuous
surface connection'' as it relates to adjacent wetlands discussed in
this section, including the availability and efficacy of all of the
tools and resources discussed and the availability and efficacy of
tools that are not addressed in this section. Under the proposed
definition of ``continuous surface connection,'' adjacent wetlands are
those that have surface water at least during the wet season and are
abutting (i.e., touching) a jurisdictional water. The proposed rule
thus, for the first time, requires an assessment of whether an adjacent
wetland has surface water at least during the wet season. The proposed
rule also requires a determination that the wetland is abutting.
A variety of visual observations and remote tools, including maps,
high-resolution elevation data, aerial photographs, and high-resolution
satellite imagery, can be used to assess if a wetland is abutting a
jurisdictional water or to help identify if a there are features that
potentially sever the continuous surface connection between the wetland
and a jurisdictional water, such as separations by uplands, a berm,
dike, or similar feature. For example, USGS topographic maps, high-
resolution elevation data, NHD data, and NWI data may identify a
physical barrier or illustrate the location of the traditional
navigable water, the territorial seas, the jurisdictional impoundment,
or the jurisdictional tributary. Such resources may also be utilized to
identify if a wetland is touching a jurisdictional water, the nature of
any elevation changes between two aquatic resources, or support the
calculation of simple indices based on topography to indicate where
breaks in continuous surface connection may occur. FEMA flood zone or
other floodplain maps may indicate constricted floodplains along the
length of the tributary channel with physical separation of flood
waters that could indicate a break. Aerial photographs or high-
resolution satellite imagery may illustrate hydrophytic vegetation from
the boundary (e.g., ordinary high water mark for non-tidal waters or
high tide line for tidal waters) of the traditional navigable water,
the territorial seas, the jurisdictional impoundment, or the
jurisdictional tributary to the wetland boundary, or the presence of
water or soil saturation or conversely upland vegetation along the
tributary channel between the two features, or bright soil signatures
indicative of higher ground. NRCS soil maps may identify the presence
of hydric soil types and soil saturation and may provide evidence that
a wetland is touching a jurisdictional water. Or conversely, mapped
linear, upland soil types along a tributary channel that separates a
wetland from a jurisdictional water may provide evidence that the
wetland does not have a continuous surface connection. Additionally,
methods that overlay depressions on the landscape with hydric soils and
hydrophytic vegetation can be used to identify likely wetlands and
whether those features are touching the jurisdictional water. Field
work can help confirm the presence and location of the ordinary high
water mark or high tide line of the traditional navigable water, the
territorial seas, the jurisdictional impoundment, or the jurisdictional
tributary, and whether the delineated wetland boundary touches a
jurisdictional water. Field observations can also identify breaks that
may sever the continuous surface connection (e.g., by traversing the
landscape from the tributary to the wetland and examining topographic
and geomorphic features, as well as hydrologic and biologic
indicators). Wetlands that are not (a)(1) waters and that do not abut a
jurisdictional water would be non-jurisdictional under the proposed
rule without the need for further analysis.
For wetlands that abut a jurisdictional water, the next step under
the proposed rule would be to assess if the wetland has surface water
at least during the wet season. In order to better characterize wetland
habitats, the hydrologic regime of wetlands may be described with a
modifier related to flooding status (e.g., NWI water regime flooding
modifiers) and help inform duration and timing of surface
inundation.\87\ For nontidal wetlands, the NWI water regime modifiers
include permanently flooded, intermittently exposed, semipermanently
flooded, seasonally flooded, seasonally-flooded saturated, seasonally
saturated, continuously saturated, temporarily flooded, intermittently
flooded, and artificially flooded. The agencies are using a modified
version of the ``semipermanently flooded'' definition used by NWI \88\
to inform implementation of the surface water requirement for
continuous surface connection in the proposed rule, where surface water
must persist throughout the wet season without interruption. The
agencies intend that this surface water requirement would occur
predictably, year after year, except for in a period of extreme
drought. Wetlands characterized as having less than surface water at
least during the wet season, including wetlands with only saturated
soil conditions supported by groundwater, would not be considered
adjacent under this proposal. Under the proposed rule, wet season would
be implemented the same way as for the proposed definition of
``relatively permanent,'' creating consistency in implementation. See
section V.C.5.a of this preamble for discussion of implementation of
wet season.
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\87\ Federal Geographic Data Committee. 2013. Classification of
Wetlands and Deepwater Habitats of the United States. FGDC-STD-004-
2013. Second Edition. Wetlands Subcommittee, Federal Geographic Data
Committee and U.S. Fish and Wildlife Service, Washington, DC.
Available at https://www.fws.gov/sites/default/files/documents/Classification-of-Wetlands-and-Deepwater-Habitats-of-the-United-States-2013.pdf.
\88\ The NWI defines ``semipermanently flooded'' as ``[s]urface
water persists throughout the growing season in most years. When
surface water is absent, the water table is usually at or very near
the land surface.'' Id. at 38.
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Unlike the NWI's definition of ``semipermanently flooded,'' the
agencies' proposed definition of ``continuous surface connection''
utilizes wet season instead of growing season for consistency with the
proposed rule's definition of ``relatively permanent.'' Growing season,
as used by the NWI, means, ``[t]hat part of the year that begins with
green-up and bud-break of native plants in the spring and ends with
plant dieback and leaf-drop in the fall due to the onset of cold
weather.'' \89\ Thus, growing season as used by the NWI is dependent on
temperature and budding of vegetation, while wet season, as implemented
in the proposed rule, would be driven by precipitation and
evapotranspiration. In addition, the NWI's definition of growing season
differs from the definition in the Corps' 1987 Wetland Delineation
Manual, which is derived from the soil biological-zero temperature
concept, though plant growth can be also used under the agencies'
current
[[Page 52532]]
implementation to help determine the growing season.\90\ The 1987
Manual defines growing season to mean, ``[t]he portion of the year when
soil temperatures at 19.7 in. below the soil surface are higher than
biologic zero (5 [deg]C) . . . . For ease of determination, this period
can be approximated by the number of frost-free days.'' \91\ The
agencies solicit comment on whether, instead, they should define
``continuous surface connection'' to be consistent with the NWI's
semipermanently flooded water regime and require surface water at least
during the growing season. Under such an alternative approach, the
agencies solicit comment on whether growing season should be
implemented consistent with EPA and the Corps' wetland delineation
practices.
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\89\ Id. at 59.
\90\ Malone, K., and H. Williams. 2010. Growing Season
Definition and Use in Wetland Delineation: A Literature Review.
ERDC/CRREL CR-10-3, U.S. Army Corps of Engineers, Engineer Research
and Development Center Hanover, NH. Available at https://erdc-library.erdc.dren.mil/items/81b728f7-5dd8-4ef8-e053-411ac80adeb3.
\91\ U.S. Army Corps of Engineers. 1987. Wetlands Delineation
Manual. Technical Report Y-87-1, U.S. Army Corps of Engineers,
Waterways Experiment Station, Wetlands Research Program, Vicksburg,
MS. Available at https://usace.contentdm.oclc.org/digital/collection/p266001coll1/id/4530.
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Direct observation and various remote tools can help assess if a
wetland has surface water at least during the wet season. For example,
visual observations of standing water throughout the wet season without
interruption (and more than just after precipitation events) or visual
observations of prolonged inundation during dry months when there has
not been recent precipitation may help support a finding that a wetland
has surface water at least during the wet season under the proposed
rule. Landowners, farmers, outdoorsmen, and local communities,
including indigenous communities in Tribal areas, may have extensive
experience with, and knowledge about, the seasonal timing and extent of
surface waters in wetlands. Remote sources of information that may be
useful to help assess wetland hydrology (including duration of surface
hydrology or inundation) include stream gage data, lake gage data,
tidal gage data, flood predictions, NWI data, remotely sensed images,
soil permeability data, information about vegetative cover, and
historical record. Elevation \92\ may be informative, as areas of lower
elevation in a wetland often have more frequent periods of inundation
and/or greater duration than most areas at higher elevations. See 1987
Wetlands Delineation Manual at 29. Aerial and satellite imagery may be
helpful to determining if a wetland has surface water at least during
the wet season, particularly if the imagery shows visible water on
multiple dates during the wet season, or water that is present during
the dry season when there has not been recent precipitation. The Global
Surface Water Explorer,\93\ and USGS Landsat Level-3 Dynamic Surface
Water Extent (DSWE) product,\94\ are both tools that may be useful for
identifying surface water inundation on the landscape in certain
geographic areas, and have both been assessed for detecting surface
inundation in wetlands.95 96
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\92\ High-resolution elevation data and associated derivatives
(e.g., slope or curvature metrics) are available from the USGS 3D
Elevation Program (available at https://www.usgs.gov/3d-elevation-program).
\93\ See https://global-surface-water.appspot.com/.
\94\ See https://www.usgs.gov/landsat-missions/landsat-dynamic-surface-water-extent-science-products?qt-
science_support_page_related_con=0#qt-
science_support_page_related_con.
\95\ Park, J., Kumar, M., Lane, C.R., and Basu, N.B. 2022.
``Seasonality of inundation in geographically isolated wetlands
across the United States.'' Environmental Research Letters 17:
054005. Available at https://doi.org/10.1088/1748-9326/ac6149.
\96\ Jones, J.W. 2019. ``Improved Automated Detection of
Subpixel-Scale Inundation--Revised Dynamic Surface Water Extent
(DSWE) Partial Surface Water Tests.'' Remote Sensing 11(4): 374.
Available at https://doi.org/10.3390/rs11040374.
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Under the proposed rule, if a wetland has surface water at least
during the wet season at the point at which it touches a jurisdictional
water but transitions in water regime to having less than surface water
at least during the wet season as the wetland extends farther away from
the jurisdictional water (e.g., to seasonally saturated), only the
portion of the wetland that demonstrates surface water at least during
the wet season would be ``adjacent.'' Thus, under the proposed rule,
the extent of surface water at least during the wet season in a wetland
would need to be delineated when making jurisdictional determinations
to draw the boundary between the jurisdictional portion of a wetland
and the non-jurisdictional portion of a wetland. The tools discussed
above can be used to determine if there are portions of a wetland that
lack the required demonstration of surface water at least during the
wet season. The agencies solicit comment on this proposed approach,
including tools and resources for implementation, as well as the
alternative approach that the entire wetland be considered ``adjacent''
if at least part of the wetland demonstrates a continuous surface
connection.
The agencies are proposing to change implementation of wetland
mosaics. Wetland mosaics are landscapes where wetland and non-wetland
components were previously considered too closely associated to be
easily delineated or mapped separately. These areas often have complex
microtopography, with repeated small changes in elevation occurring
over short distances. For example, ridges and hummocks are often non-
wetland but are interspersed throughout a wetland matrix having clearly
hydrophytic vegetation, hydric soils, and wetland hydrology. In certain
regions where wetland mosaics are common, such as in permafrost regions
in Alaska, Corps regional wetland delineation manuals address how to
delineate such wetlands. See, e.g., Alaska Regional Supplement. Under
current implementation, wetlands in the mosaic are considered
collectively as one wetland. See 88 FR 3093 (January 18, 2023). Under
the proposed rule, the agencies would delineate wetlands in the mosaic
individually. Thus, only the delineated wetland portions of a wetland
mosaic that meet the definition of ``continuous surface connection''
under the proposed rule would be jurisdictional as adjacent wetlands.
Wetland components of a mosaic are often not difficult to identify.
The problem for the wetland delineator often is that microtopographic
features may be quite small and intermingled, and there may be many
such features per acre, creating challenges for accurate and efficient
delineations and mapping. Field indicators can be used, for example, to
find plots that meet the definition of ``wetlands'' and then, as
accurately as possible, work outward to the uplands to see if a
contiguous boundary can be drawn.\97\ Remote tools such as high-quality
aerial photography and others previously discussed in this section can
also be used to assist with determinations of wetland and non-wetland
components (e.g., by determining the ridges versus wetlands through
photo interpretation of topography and vegetation patterns or a site
visit). The agencies seek comment on implementation of this approach,
including tools and methods to assist with delineating wetland and non-
wetland components in wetland mosaics.
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\97\ Lichvar, R.W., Curtis, K.E., Gillrich, J.J., and Dixon,
L.E. 2012. Testing Wetland Delineation Indicators in New England
Boulder Fields. ERDC/CRREL TR-12-4. U.S. Army Corps of Engineers.
U.S. Army Engineer Research and Development Center, Cold Regions
Research and Engineering Laboratory, Hanover, NH. Available at
https://usace.contentdm.oclc.org/digital/collection/p266001coll1/id/4402/.
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As discussed in section V.C.2. of this preamble, the agencies have
received
[[Page 52533]]
feedback both pre-proposal and in response to past rulemakings on the
challenges of treating permafrost wetlands and wetland mosaics in
Alaska in a manner similar to wetlands in other geographic areas.
Specifically, requests have been made to the agencies that permafrost
wetlands and wetland mosaics in Alaska be excluded from the definition
of ``waters of the United States'' due to their unique nature, the lack
of scientific certainty that such wetlands have meaningful connections
to the tributary network (and in the case of wetland mosaics, that the
wetlands are interconnected as a single unit), and the fact that such
wetlands can span many acres in size. The agencies believe the proposed
rule addresses many of these challenges by individually delineating
wetlands in a wetland mosaic and by limiting wetlands with a continuous
surface connection to those that are abutting and have surface water at
least during the wet season as discussed in section V.C.2 of this
preamble.
The agencies also seek comment on whether the jurisdictional reach
of permafrost wetlands and wetland mosaics in Alaska that are found to
be adjacent should be limited to a certain length from the
jurisdictional water to the abutting wetlands--for example, only those
portions of abutting wetlands up to 1,600 feet from the ordinary high
water mark or the high tide line of a ``water of the United States''
and that otherwise meet the proposed definition of ``continuous surface
connection'' would be found to be jurisdictional. In this approach,
those portions of the continuous abutting wetlands beyond 1,600 feet
would not be considered to be part of the adjacent wetland and would
not be jurisdictional. The agencies solicit comment on implementation
of this approach, and whether it would further address concerns raised
about permafrost wetlands and wetland mosaics in Alaska.
E. Lakes and Ponds Assessed Under Paragraph (a)(5)
1. Deletion of ``Intrastate''
The agencies are proposing to delete ``intrastate'' from paragraph
(a)(5) of the Amended 2023 Rule. Paragraph (a)(5) of the Amended 2023
Rule covers ``[i]ntrastate lakes and ponds not identified in paragraphs
(a)(1) through (4) of this section that are relatively permanent,
standing or continuously flowing bodies of water with a continuous
surface connection to the waters identified in paragraph (a)(1) or
(a)(3) of this section.'' With the proposed deletion of the interstate
waters category and the proposed deletion of ``intrastate'' from
paragraph (a)(5), the (a)(5) category under the proposed rule would
include both interstate and intrastate lakes and ponds not identified
in paragraphs (a)(1) through (4) that are relatively permanent,
standing or continuously flowing bodies of water with a continuous
surface connection to a traditional navigable water, the territorial
seas, or a paragraph (a)(3) tributary. As such, the agencies believe
deleting ``intrastate'' from paragraph (a)(5) would be a ministerial
change due to the proposed elimination of the interstate waters
category under paragraph (a)(1)(iii) of the Amended 2023 Rule.
2. Alternative Approaches
As discussed above in section V.C.4 of this preamble, the agencies
also seek comment on whether category (a)(5) of the proposed rule for
lakes and ponds would be necessary in any final rule and whether non-
navigable lakes and ponds would be most appropriately assessed for
jurisdiction under the paragraph (a)(3) category for ``tributaries''
and under the proposed definition of ``tributary'' in light of Rapanos
and Sackett. The agencies believe that lakes and ponds that are
relatively permanent, standing or continuously flowing, and have a
continuous surface connection under the proposed rule would likely meet
the requirements of a paragraph (a)(3) tributary. The deletion of the
paragraph (a)(5) category would also make the rule text simpler and
more concise. The agencies seek comment, however, on whether there may
be non-navigable lakes and ponds that would not be appropriate to
assess for jurisdiction as a paragraph (a)(3) tributary.
3. Implementation
Consistent with longstanding practice, under the proposed rule the
agencies would generally assess jurisdiction over aquatic resources
based on the requirements in paragraphs (a)(1) through (4) under this
proposed rule and ensure that they do not meet one of the paragraph
(b)(1) exclusions before assessing jurisdiction over aquatic resources
based on paragraph (a)(5). Thus, lakes and ponds that are traditional
navigable waters, jurisdictional impoundments, or jurisdictional
tributaries would not be assessed under paragraph (a)(5) of the
proposed rule. The agencies would assess waters under paragraph (a)(5)
to determine if they are relatively permanent using a similar approach
to the one described for tributaries, as discussed in section V.C.5.a
of this preamble. The agencies would assess a continuous surface
connection between waters assessed under paragraph (a)(5) and a
paragraph (a)(1) water or a paragraph (a)(3) tributary using the
approach described for adjacent wetlands, as discussed in section V.D.4
of this preamble. The agencies are also not proposing to change their
longstanding implementation of the lateral limits of jurisdiction for
this category, which would extend to the ordinary high water mark of
the paragraph (a)(5) lake or pond, consistent with current practice and
the Corps' regulations at 33 CFR 328.4.
The field observations, tools, data, and methods discussed in
sections V.C.5 and V.D.4 of this preamble, can be used for
implementation of the lakes and ponds category under paragraph (a)(5)
to assess whether the subject water meets the proposed definition of
``relatively permanent,'' and if it has a ``continuous surface
connection,'' consistent with proposed definition of that term. The
agencies solicit comment regarding those implementation resources for
paragraph (a)(5) under the proposed rule, as well as any additional
resources that would assist with implementation of this proposed
category of waters. The agencies believe that lakes and ponds that meet
the proposed definition of ``relatively permanent,'' and that abut a
traditional navigable water, the territorial seas, or a paragraph
(a)(3) tributary would also satisfy the proposed definition of
``continuous surface connection'' because they would have surface water
at least during the wet season. Lakes and ponds assessed under
paragraph (a)(5) that do not meet the proposed definition of
``relatively permanent'' would be non-jurisdictional. Similarly,
relatively permanent lakes or ponds assessed under paragraph (a)(5)
that do not have a ``continuous surface connection'' as defined in the
proposed rule would also be non-jurisdictional.
F. Exclusions From the Definition of ``Waters of the United States''
In paragraph (b) of the agencies' regulations, EPA and the Army are
proposing to modify three of the eight exclusions from the definition
of ``waters of the United States:'' the paragraph (b)(1) exclusion for
waste treatment systems, the paragraph (b)(2) exclusion for prior
converted cropland, and the paragraph (b)(3) exclusion for certain
ditches. In addition, the agencies are proposing to add an additional
exclusion to the definition of ``waters of the United States'' for
groundwater. Certain waters and features have been
[[Page 52534]]
expressly excluded from the definition of the ``waters of the United
States'' since the 1970s. The agencies believe that the proposed
revisions to the exclusions for waste treatment systems, prior
converted cropland, and ditches, as well as the addition of the
groundwater exclusion, will enhance implementation clarity. Waste
treatment systems and prior converted cropland have been excluded for
decades. As discussed in more detail below, certain ditches have either
been expressly excluded in the regulatory text or considered generally
not jurisdictional via preamble language or guidance since 1986. In
addition, groundwater was expressly excluded in the regulatory text
under the NWPR.
The agencies are not proposing to revise the current regulatory
language which states that paragraph (b) exclusions apply to paragraph
(a)(2) through (5) waters even in circumstances where the feature would
otherwise be jurisdictional. Thus, consistent with longstanding
practice, the agencies are proposing to continue the policy that
exclusions do not apply to the paragraph (a)(1) traditional navigable
waters and the territorial seas.
The proposed revised exclusions reflect the agencies' proposed
determinations of the lines of jurisdiction based on the case law and
the agencies' long-standing practice and technical judgment that
certain waters and features are not subject to the Clean Water Act. The
plurality opinion in Rapanos noted that there were certain features
that were not primarily the focus of the Clean Water Act, such as
channels that periodically provide drainage for rainfall. See 547 U.S.
at 734. During pre-proposal outreach for this proposed rule, many
States, regional groups, and national associations requested
``distinct,'' ``specific,'' and ``clear'' exclusions from the
definition of ``waters of the United States.'' In this proposed rule,
the agencies propose to thus draw lines and articulate that certain
waters and features would not be subject to the jurisdiction of the
Clean Water Act.
The agencies are not proposing to codify the additional exclusions
that were added in the NWPR. The agencies acknowledge that clear
exclusions from the definition of ``waters of the United States'' have
been helpful for agency staff, States, and landowners in determining
whether or not a feature requires additional investigation regarding
its jurisdictional status. However, it is the position of the agencies
that most of those exclusions covered features that would not be
jurisdictional under the proposed rule, either because they would meet
the terms of one of the existing or revised exclusions, or because they
would not meet the definition of ``waters of United States'' as
proposed.\98\ For example, proposing to codify the NWPR's exclusion of
ephemeral features is not necessary because ephemeral features would
not satisfy the relatively permanent standard in Sackett as proposed in
this rule so would already be non-jurisdictional. Thus, the agencies
think it is not necessary to explicitly exclude them.
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\98\ Stormwater control features and wastewater recycling
structures that were excluded under NWPR and created in non-
jurisdictional waters rather than in dry land, may not be excluded
under the proposed rule. Many of these aquatic features, however,
will continue to be non-jurisdictional because they do not satisfy
the proposed rule's definition of ``waters of the United States.''
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1. The Paragraph (b)(1) Waste Treatment System Exclusion and Paragraph
(c)(11) Definition of ``Waste Treatment System''
a. The Agencies' Proposed Revisions to the Waste Treatment System
Exclusion
The agencies propose to continue the paragraph (b)(1) exclusion for
waste treatment systems, which has existed in EPA's regulations since
1979 (44 FR 32854 (June 7, 1979)). The agencies, however, are proposing
to modify the exclusion, including by adding a definition of ``waste
treatment system'' under paragraph (c)(11) and deleting redundant
language in paragraph (b)(1), so as to clarify which waters and
features are considered part of a waste treatment system and therefore
excluded. Under the proposed rule, a waste treatment system ``includes
all components of a waste treatment system designed to meet the
requirements of the Clean Water Act, including lagoons and treatment
ponds (such as settling or cooling ponds), designed to either convey or
retain, concentrate, settle, reduce, or remove pollutants, either
actively or passively, from wastewater prior to discharge (or
eliminating any such discharge).'' The agencies intend for this
proposed exclusion to apply only to waste treatment systems constructed
in accordance with the requirements of the Clean Water Act and to all
waste treatment systems constructed prior to the 1972 Federal Water
Pollution Control Act amendments, as discussed further in section
V.F.1.d of this preamble. The agencies' proposal is consistent with the
NWPR's exclusion for waste treatment systems. The agencies seek comment
on the proposed exclusion for waste treatment systems under paragraph
(b)(1), including the proposed definition of ``waste treatment system''
under paragraph (c)(11) and implementation of the exclusion.
b. Basis for the Proposed Definition
EPA first promulgated the waste treatment system exclusion in a
1979 notice-and-comment rulemaking revising the definition of ``waters
of the United States'' in the agency's NPDES regulations. 44 FR 32854
(June 7, 1979). A ``frequently encountered comment'' was that ``waste
treatment lagoons or other waste treatment systems should not be
considered waters of the United States.'' Id. at 32858. EPA agreed,
except as to cooling ponds that otherwise meet the criteria for
``waters of the United States.'' Id. The 1979 revised definition of
``waters of the United States'' thus provided that ``waste treatment
systems (other than cooling ponds meeting the criteria of this
paragraph) are not waters of the United States.'' Id. at 32901 (40 CFR
122.3(t) (1979)).
The following year, EPA revised the exclusion, but again only in
its NPDES regulations, to clarify its application to treatment ponds
and lagoons and to specify the type of cooling ponds that fall outside
the scope of the exclusion. 45 FR 33290, 33298 (May 19, 1980). EPA also
decided to revise this version of the exclusion to clarify that
``treatment systems created in [waters of the United States] or from
their impoundment remain waters of the United States,'' while
``[m]anmade waste treatment systems are not waters of the United
States.'' Id. The 1980 revised exclusion read: ``[w]aste treatment
systems, including treatment ponds or lagoons designed to meet the
requirements of CWA (other than cooling ponds as defined in 40 CFR
423.11(m) which also meet the criteria of this definition) are not
waters of the United States.'' The 1980 provision further provided that
the exclusion ``applies only to manmade bodies of water which neither
were originally created in waters of the United States (such as a
disposal area in wetlands) nor resulted from the impoundment of waters
of the United States.'' 45 FR 33424 (May 19, 1980) (40 CFR 122.3).
EPA subsequently revised the definition and codified it in the
``waters of the United States'' definitions. See, e.g., 53 FR 20764,
20774 (June 6, 1988) (revising EPA's section 404 program definitions at
40 CFR 232.2). Separately, the Corps' 1986 updated definition of
``waters of the United States'' also contained the waste treatment
system exclusion. 51 FR 41250 (November 13, 1986); 33 CFR 328.3 (1987).
The agencies believe that the proposed waste treatment system
exclusion generally reflects the
[[Page 52535]]
agencies' current practice. Incorporating the revised exclusion into
the proposed rule would further the agencies' goal of providing greater
clarity over which waters are and are not jurisdictional under the
Clean Water Act for both the regulated community as well as the
regulators. Further, the agencies believe that the proposed approach of
incorporating a definition of ``waste treatment system'' within the
text of paragraph (c) itself rather than having to rely on guidance in
the preamble is preferable for clarity, consistency, and transparency.
c. Alternative Approaches
The agencies seek comment on the alternative approach of retaining
the current regulatory text for the waste treatment system exclusion,
which excludes ``[w]aste treatment systems, including treatment ponds
or lagoons, designed to meet the requirements of the Clean Water Act.''
The agencies are interested in hearing whether the proposed or current
exclusion is clearer, particularly with regards for the need for the
waste treatment system to comply with the requirements of the Clean
Water Act, including for those systems which were constructed prior to
the Federal Water Pollution Control Act amendments in 1972, as well as
regarding the components that make up a waste treatment system, such as
the inclusion of active and passive treatment components.
d. Implementation of the Waste Treatment System Exclusion
As discussed previously, the agencies are not proposing to change
the longstanding approach to implementing the waste treatment system
exclusion but rather seek to include additional clarity in the
regulation text. As a result, the agencies would continue to apply the
exclusion to systems that are treating water to meet the requirements
of the Clean Water Act. To be clear, the proposed exclusion would not
free a discharger from the need to comply with the Clean Water Act,
including any effluent limitations guidelines and new source
performance standards requirements applicable to the waste treatment
system, and requirements applicable to the pollutants discharged from a
waste treatment system to ``waters of the United States''; only
discharges into the waste treatment system would be excluded from the
Act's requirements. As such, the agencies propose to continue their
longstanding practice that any entity would need to comply with the
Clean Water Act by obtaining a section 404 permit for a new waste
treatment system that will be constructed in ``waters of the United
States,'' and a section 402 permit if there are discharges of
pollutants from a waste treatment system into ``waters of the United
States.'' Waste treatment systems constructed prior to the 1972 Federal
Water Pollution Control Act amendments would be eligible for the
exclusion under this proposed regulation and would also continue to be
subject to regulation by the Clean Water Act section 402 permitting
program for discharges from these systems to ``waters of the United
States.'' Under the section 402 permit, discharges from the waste
treatment system would need to meet the requirements of applicable
effluent limitations guidelines and new source performance standards,
as well as any required water quality-based effluent limitations.
Further, consistent with the agencies' general practice implementing
the exclusion, under this proposed rule, a waste treatment system that
is abandoned and otherwise ceases to serve the treatment function for
which it was designed would not continue to qualify for the exclusion
and could be deemed jurisdictional if it otherwise meets this proposed
rule's definition of ``waters of the United States.''
Under past rulemakings, commenters have inquired as to whether
stormwater systems and wastewater reuse facilities are considered part
of a complete waste treatment system for purposes of the waste
treatment system exclusion. The agencies note that cooling ponds that
are created in jurisdictional waters pursuant to a Clean Water Act
section 404 permit and that have Clean Water Act section 402 permits
would be subject to the waste treatment system exclusion under previous
rules and the proposed rule. Cooling ponds created to serve as part of
a cooling water system with a valid State or Federal permit constructed
in ``waters of the United States'' prior to enactment of the 1972
Federal Water Pollution Control Act amendments also would remain
excluded under the proposed rule if they are in compliance with
applicable Clean Water Act requirements. In the past, the public and
the regulated community have expressed confusion regarding whether
stormwater treatment features would be excluded under the waste
treatment system exclusion. Such determinations would depend on the
specific attributes of the control and the water feature and thus need
to be made on a case-by-case basis. The agencies have previously
provided guidance on this topic,\99\ stating that the waste treatment
system exclusion generally does not apply to stormwater features, which
must be assessed on a case-specific basis, and propose to continue this
approach. The agencies seek comment on the proposed continuation of
this approach, and whether it appropriately provides clarity on
application of the exclusion, and if so, whether the content of the
policy memorandum should be included in the preamble to any final rule.
Stormwater features may be excluded under other exclusions in this
proposed rule, such as certain ditches, or may not meet the proposed
requirements of the categories of jurisdictional waters under paragraph
(a).
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\99\ The agencies clarified in that case-specific policy
memorandum that in general, storm water features implemented to
comply with a Clean Water Act section 402(p) NPDES permit would not
be eligible for the waste treatment system exclusion. The agencies
further clarified, however, that a waste treatment system that
receives storm water or storm water runoff in addition to wastewater
remains eligible for the waste treatment system exclusion so long as
the system continues to serve the treatment function for which it
was designed. See U.S. EPA and Army. 2024. ``Memorandum on NWS-2023-
923.'' Available at https://www.epa.gov/system/files/documents/2024-12/memorandum-on-nws-2023-923.pdf.
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2. Definition of ``Prior Converted Cropland'' Under Paragraph (c)(7)
and Scope of the (b)(2) Prior Converted Cropland Exclusion
a. Basis for the Proposed Definition
The agencies propose to continue to exclude prior converted
cropland in this proposed rule, a longstanding exclusion since 1993.
See 58 FR 45034-36 (August 25, 1993); see also section IV.B of this
preamble. Historically, the agencies have attempted to create
consistency between the Clean Water Act and the Food Security Act of
1985 (16 U.S.C. 3801 et seq.) wetland conservation provisions for prior
converted cropland. The agencies continue to believe that consistency
across these programs is important for the regulated community (see 58
FR 45033, August 25, 1993) and therefore are proposing to continue to
exclude prior converted cropland from the definition of ``waters of the
United States,'' as well as to include a definition for prior converted
cropland under paragraph (c)(7). This exclusion is consistent with the
policy of Congress articulated in CWA section 101(b), to ``recognize,
preserve and protect the primary responsibilities and rights of
States'' to address pollution and ``to plan the development and use
(including restoration, preservation, and enhancement) or land and
water resources.'' 33 U.S.C. 1251. The extent
[[Page 52536]]
of protections for and development of areas used for farming falls
squarely within the scope of section 101(b), and therefore the agencies
propose to allow States full flexibility to determine whether and how
to manage these areas.
The agencies are therefore proposing to clarify, consistent with
the NWPR, that the prior converted cropland exclusion would no longer
apply for Clean Water Act purposes when the cropland is abandoned
(i.e., the cropland has not been used for or in support of agricultural
purposes for a period of greater than five years) and the land has
reverted to wetlands. Importantly, even under these conditions and
given the Supreme Court's new articulation of the necessity of a
continuous surface connection in Sackett, a wetland would still need to
be determined to be adjacent to a jurisdictional water, as the term is
defined in paragraph (c)(2), to itself be determined jurisdictional.
Simply put, just because land may lose prior converted cropland
designation under this proposed approach does not automatically
determine that land to contain a jurisdictional wetland. The agencies
propose that prior converted cropland is considered abandoned if it is
not used for, or in support of, agricultural purposes at least once in
the immediately preceding five years. The five-year timeframe for
maintaining agricultural purposes is consistent with the 1993 preamble.
58 FR 45033 (August 25, 1993). Agricultural purposes include land use
that makes the production of an agricultural product possible,
including, but not limited to, grazing and haying. This proposed rule
would also clarify that cropland that is left idle or fallow for
conservation or agricultural purposes for any period or duration of
time remains in agricultural use (i.e., it is used for, or in support
of, agriculture purposes), and therefore maintains the prior converted
cropland exclusion. The agencies believe that this revision is
necessary to ensure that cropland enrolled in long-term and other
conservation programs administered by the Federal Government or by
State and local agencies that prevents erosion or other natural
resource degradation does not lose its prior converted cropland
designation as a result of implementing conservation practices.
In 1993, the agencies categorically excluded prior converted
cropland from the definition of ``waters of the United States.'' 58 FR
45034-36 (August 25, 1993). As further explained below, in keeping with
the Food Security Act of 1985, the 1993 preamble defined prior
converted cropland as ``areas that, prior to December 23, 1985, were
drained or otherwise manipulated for the purpose, or having the effect,
of making production of a commodity crop possible [and that are]
inundated for no more than 14 consecutive days during the growing
season.'' 58 FR 45031. As explained in detail in the 1993 preamble, due
to the degraded and altered nature of prior converted cropland, the
agencies determined that such lands should not be treated as
jurisdictional wetlands for purposes of the Clean Water Act because
regulating such lands does not further the objective of the Act. 58 FR
45032. The 1993 preamble also set out a mechanism to ``recapture''
prior converted cropland into the section 404 program when the land has
been abandoned and wetland features return. 58 FR 45034. This approach
is consistent with the principles in the 1990 Corps Regulatory Guidance
Letter 90-7. Although included in the 1993 preamble and Regulatory
Guidance Letter 90-7, these principles were not incorporated into the
text of any promulgated rule until the NWPR. That rule represented the
first time the agencies promulgated regulatory language to clarify the
meaning of ``prior converted cropland'' for Clean Water Act purposes,
the application of the exclusion, and a recapture mechanism based on
abandonment and reversion to wetlands.
When the 1993 preamble was published, the abandonment principle was
consistent with USDA's implementation of the Food Security Act. Three
years later, the 1996 Food Security Act amendments modified the
abandonment principle and incorporated a ``change in use'' policy. See
Public Law 104-127, 110 Stat. 988 (1996). In 2005, the Army and the
Natural Resources Conservation Service issued a joint ``Memorandum to
the Field'' (the 2005 Memorandum) \100\ in an effort to align the Clean
Water Act section 404 program with the Food Security Act by adopting
the amended Food Security Act's change in use policy. The 2005
Memorandum provided that, for Clean Water Act purposes, a ``certified
[prior converted] determination made by [USDA] remains valid as long as
the area is devoted to an agricultural use. If the land changes to a
non-agricultural use, the [prior converted cropland] determination is
no longer applicable, and a new wetland determination is required for
CWA purposes.'' The 2005 Memorandum did not clearly address the
abandonment principle that the agencies had been implementing since the
1993 rulemaking. The Army and USDA withdrew the 2005 Memorandum
simultaneous with the effective date of the NWPR in 2020 \101\ because
the NWPR provided clarity about the prior converted cropland exclusion
and how wetlands can be recaptured into Clean Water Act jurisdiction
through the abandonment test.
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\100\ U.S. Department of Agriculture Natural Resources
Conservation Service and U.S. Department of the Army Office of
Assistant Secretary of the Army (Civil Works). 2005. ``Memorandum to
the Field: Guidance on Conducting Wetland Determinations for the
Food Security Act of 1985 and Section 404 of the Clean Water Act.''
February 25, 2005. Available in the docket for this action.
\101\ U.S. Department of the Army, Office of the Assistant
Secretary (Civil Works), and U.S. Department of Agriculture, Natural
Resources Conservation Service. 2020. ``Memorandum for the Field:
Rescission of the 2005 Joint Memorandum to the Field Regarding
Guidance on Conducting Wetland Determinations for the Food Security
Act of 1985 and Section 404 of the Clean Water Act. January 28,
2020. Available in the docket for this action.
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In the 2023 Rule, the agencies changed course, providing that
``prior converted cropland is not waters of the United States,'' and
that such ``exclusion would cease upon a change in use.'' 88 FR 3105-
06. By incorporating the abandonment principles from the 1993 preamble
and providing examples of ``agricultural purposes,'' this proposed rule
remains consistent with the concepts underlying the Food Security Act
but differs in implementation from certain aspects of USDA's current
wetland conservation authority. Returning to the abandonment principle
would allow the agencies to appropriately manage certain wetland
resources while providing better clarity and regulatory certainty to,
and alleviating unnecessary burden on, the agricultural community.
Moreover, by returning to the definition adopted in the NWPR, the
agencies intend that this proposed rule would alleviate the burden
placed on the USDA to process requests for prior converted cropland
determinations that are not required for Food Security Act purposes.
The agencies' proposal is informed by stakeholder input. For
example, agricultural stakeholders during the listening sessions and in
the recommendations docket requested that the agencies re-codify the
NWPR's exclusion and definition for prior converted cropland.
Specifically, they support the approach whereby an area loses its prior
converted cropland status for Clean Water Act purposes when it is
abandoned (not used or in support of agriculture at least once in the
preceding five years) and has reverted to wetlands. They also support
the
[[Page 52537]]
approach in the NWPR whereby a site can be prior converted cropland
regardless of whether there is a prior converted cropland determination
from either USDA or the Corps, as there is no specific requirement for
issuance of a formal prior converted cropland determination, and USDA
does not provide determinations unless a farmer is seeking benefits
covered under the wetland conservation provisions. Re-codifying the
prior converted cropland exclusion and definition from the NWPR will
reestablish an easier and less burdensome process for farmers to obtain
an exclusion for prior converted cropland for Clean Water Act purposes
and provide the agriculture community regulatory certainty.
Consistent with NWPR, agricultural purposes would include, but
would not be limited to, idling land for conservation uses (e.g.,
habitat; pollinator and wildlife management; water storage, supply, and
flood management; enrollment in any conservation easement); irrigation
tailwater storage; crawfish farming; cranberry bogs; nutrient
retention; and idling land for soil recovery following natural
disasters like hurricanes and drought. While the list provided above is
not meant to be exclusive, the uses listed above, in addition to crop
production, haying, and grazing, would fall within the term
``agricultural purposes'' and, if documented, may maintain the prior
converted cropland exclusion. Conservation practices, including those
required or supported by USDA, State, and local programs (including
recognized private sector programs that partner with government
programs or that can provide verifiable documentation of participation)
are critical to the success of agricultural systems across the country.
Conservation practices and programs also are conducted ``for or in
support of agricultural purposes'' and therefore would be appropriate
to maintain the prior converted cropland exclusion.
The agencies propose that a five-year timeframe for maintaining
agricultural purposes is reasonable as it is consistent with the 1993
preamble (58 FR 45033) and with the five-year timeframe regarding the
validity of an approved jurisdictional determination (2005 Corps
Regulatory Guidance Letter (RGL) 05-02). The five-year timeframe is
longstanding in the Clean Water Act section 404 program and would be
familiar to both landowners and regulators, thereby increasing clarity
in implementation. The agencies would consider documentation from USDA
or other Federal or State agencies to determine if the land was used
for or in support of agricultural purposes in the immediately preceding
five years to evaluate whether cropland has in fact been abandoned. The
agencies' proposal for the second component of the prior converted
cropland losing its status as an exclusion under the Clean Water Act is
reversion to wetland, consistent with all past regulatory regimes. That
is, the area now meets the regulatory definition of ``wetlands'' as
that term is defined in (c)(1) of the regulations (note that the
agencies are not proposing to revise the longstanding definition of
``wetlands''). As discussed previously in this section, even if the
area loses its status as prior converted cropland, it would need to
meet one of the categories of ``waters of the United States'' to be
jurisdictional under the proposed rule (e.g., it would need to be
abandoned, revert to wetlands, and meet the requirements to be an
adjacent wetland).
b. Alternative Approaches
The agencies solicit comment on an alternative approach whereby the
prior converted cropland exclusion would no longer be applicable when
the cropland is abandoned as provided in this proposed rule; however,
determinations about whether land is prior converted cropland would
only be made by the USDA and then would be adopted by the agencies.
USDA has decades of experience making prior converted cropland
determinations as authorized by the Food Security Act. In addition,
agricultural records are more easily accessible by USDA in making such
determinations. The agencies solicit comment on whether this approach
would be preferable for efficiency and consistency purposes in
supporting exclusion determinations.
c. Implementation of the Prior Converted Cropland Exclusion
The USDA is responsible for making determinations as to whether
land is prior converted cropland for its Food Security Act purposes,
whereas the agencies would be responsible for determining applicability
of the exclusion for Clean Water Act purposes under the proposed rule,
consistent with the government's longstanding interpretation of the
agencies' authority under the Clean Water Act. See 33 CFR 328.3(a)(8)
(``Notwithstanding the determination of an area's status as prior
converted cropland by any other Federal agency, for the purposes of the
Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.''); 58 FR 45008, 45036 (August 25,
1993); Civiletti Memorandum at 197. The agencies would be responsible
for establishing whether a parcel or tract of land is prior converted
cropland and is therefore eligible for the prior converted cropland
exclusion under this proposed rule. However, the agencies would
recognize a USDA determination of prior converted cropland when making
their own determination for purposes of the Clean Water Act. A
landowner without an existing prior converted cropland determination
may seek a new determination from either the USDA or the agencies.
Although the proposed definition of prior converted cropland uses
``agricultural product'' while the Food Security Act uses
``agricultural commodity,'' the agencies would still recognize the USDA
determination of prior converted cropland under this proposal.\102\ The
USDA is subject to specific statutes designed to protect landowner
privacy and, as such, is prohibited from making certain parcel-specific
information available without the landowner's consent. To ensure that
the agencies can appropriately coordinate with USDA on a prior
converted cropland determination or recognize an existing USDA prior
converted cropland determination, the landowner would need to either
provide a copy of the determination or provide the agencies with a
signed consent form to allow the agencies access to the relevant
information for the limited purposes of verifying USDA's prior
converted cropland determination or receiving information from USDA
that may be used in the agencies prior converted cropland
determination.\103\ The agencies recognize that privacy and
confidentiality issues concerning certain
[[Page 52538]]
producer information is addressed at section 1619 of the Food,
Conservation, and Energy Act of 2008 (7 U.S.C. 8791(b)) and section
1244(b) of the Food Security Act of 1985, as amended (16 U.S.C.
3844(b)). If a parcel is found to be prior converted cropland, as
defined in this proposed rule, it is not a ``water of the United
States.''
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\102\ The agencies note that the USDA's regulatory definition of
``prior converted cropland'' in the Food Security Act and the
definition being established in this proposed rule have different
purposes and they are substantively different. Based on the Food
Security Act's statutory requirements, the USDA definition of
``prior converted cropland'' requires that agricultural commodity
crop production be made possible prior to 1985. See 7 CFR
12.2(a)(8); 16 U.S.C. 3801 (defining converted wetland) and 16
U.S.C. 3822(b)(1)(A) (establishing the pre-1985 exemption). If
commodity crop production was made possible on a particular parcel
or tract of land prior to 1985, that land is eligible for the prior
converted cropland exclusion in this proposed rule. Once eligibility
is determined, the agencies will evaluate the land to determine if
the exclusion currently applies, or if the land has been abandoned,
as described in this proposed rulemaking.
\103\ The agencies could establish a memorandum upon
finalization of the rule to assist with coordination. See, e.g.,
``Memorandum to the Field Between the U.S. Department of
Agriculture, Natural Resources Conservation Service (NRCS), the U.S.
Department of the Army, Corps Of Engineers (Corps), and the U.S.
Environmental Protection Agency (EPA) Concerning Implementation of
the Navigable Waters Protection Rule, Section 404 of the Clean Water
Act and the Food Security Act (FSA) of 1985,'' available in the
docket for this rulemaking.
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Under the proposed rule, once a threshold determination has been
made that certain lands are prior converted cropland, the EPA and the
Corps would be responsible for implementing the prior converted
cropland exclusion for Clean Water Act purposes and identifying (as
further explained below) whether the lands have been abandoned and
whether wetland conditions have returned such that they are no longer
eligible for the prior converted cropland exclusion in this rule and
thus may be ``waters of the United States.'' The agencies note that
even if the prior converted cropland exclusion no longer applies, such
wetland would need to be determined to have a continuous surface
connection with, and therefore be adjacent to, a paragraph (a)(1),
(a)(2), or (a)(3) water, as established by the Supreme Court in
Sackett. In addition to working closely with USDA as appropriate, the
agencies would consider documentation from a variety of other sources
when evaluating whether a parcel of land may no longer be eligible for
the Clean Water Act prior converted cropland exclusion under the
proposed rule. In all cases, the burden to prove that such parcel is a
``water of the United States'' remains on the agencies. The agencies'
implementation of the prior converted cropland exclusion for Clean
Water Act regulatory purposes under the proposed rule would not affect
USDA's administration of the Food Security Act or a landowner's
eligibility for benefits under Food Security Act programs.\104\
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\104\ See 84 FR 4193 (February 14, 2019) for a summary of how
the agencies historically implemented and enforced this exclusion.
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As described previously, prior converted cropland would be
considered abandoned under the proposed definition if it is not used
for, or in support of, agricultural purposes at least once in the
immediately preceding five years. In making an abandonment
determination consistent with the proposed rule, the Corps would work
with the landowner and USDA, as appropriate, to determine whether the
land is currently or has been used for or in support of agricultural
purposes at least once in the immediately preceding five years. As
noted above, the agencies propose many uses to potentially fall within
this category. Some of those land uses may not be obvious to Corps
field staff, so the agencies may rely on public or private
documentation to demonstrate that the land is enrolled in a
conservation program or is otherwise being used for or in support of
agricultural purposes. Such information may include aerial photographs,
topographical maps, cultivation maps, crop expense or receipt records,
field- or tract-specific grain elevator records, and other records
generated and maintained in the normal course of doing business,
including government agency records documenting participation in a
conservation program, and other documentation reasonably establishing
one or more ``agricultural purposes.'' The agencies are also
considering the issuance of a joint agency memorandum similar to one
signed in 2020 to support the NWPR \105\ to provide additional guidance
on this topic. The agencies seek input on whether such a memorandum
provides needed additional clarity for any final rule that may be
issued.
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\105\ See Memorandum to the Field between the U.S. Department of
Agriculture, Natural Resources Conservation Service (NRCS), the U.S.
Department of the Army, Corps of Engineers (Corps), and the U.S.
Environmental Protection Agency (EPA) Concerning Issues Related to
the Implementation of Section 404 of the Clean Water Act (CWA) and
the Food Security Act of 1985, as Amended (FSA). July 17, 2020.
Available at https://www.epa.gov/sites/default/files/2020-07/documents/final_joint_memo_army_epa_usda_on_issues_related_to_implementation_of_sec_404_of_cwa_and_fsa_july_2020.pdf.
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In implementing the proposed rule, the agencies may consider
documentation from USDA, NOAA, FEMA, and other Federal and State
agencies to determine whether the land was used for or in support of
agricultural purposes in the immediately preceding five years. For
example, USDA administers multiple programs that track whether fields
have been planted or harvested in the normal course, or enrolled in
long-term conservation rotations, and that agency also manages a crop
insurance program for years where those activities were halted for
reasons covered under their insurance policies; NOAA tracks long- and
short-term weather patterns and can provide information and data
concerning flood or drought conditions that may cause or contribute to
idling land in support of agricultural purposes; and FEMA administers
emergency response programs for natural disasters, including
hurricanes, wildfires, and other events that could also require idling
land for soil recovery and other agricultural purposes. The agencies
would take this information into account, and additional documentation
reasonably establishing ``agricultural purposes'' when evaluating
whether cropland has been used for or in support of agricultural
purposes in the immediately preceding five years under the proposed
rule.
If the Corps determines that the land is abandoned under the
proposed exclusion, then it must evaluate the current condition of the
land to determine whether wetland conditions have returned. If wetlands
as defined in the agencies' longstanding definition of the term at
paragraph (c)(1) are currently present on the property, the agencies
would determine whether the wetlands are ``adjacent'' wetlands and
therefore ``waters of the United States,'' consistent with this
proposed rule. As the term ``prior converted cropland'' suggests, and
as stated in the preamble to the 1993 Rule, land properly designated as
prior converted cropland has typically been so extensively modified
from its prior condition that it no longer exhibits wetland hydrology
or vegetation, and no longer performs the functions it did in its
natural and original condition as a wetland. 58 FR 45032. It is often
altered and degraded, with long-term physical and hydrological
modifications that substantially reduce the likelihood of
reestablishment of hydrophytic vegetation. Consistent with longstanding
agency policy and wetland delineation procedures, if a former wetland
has been lawfully manipulated to the extent that it no longer exhibits
wetland characteristics under normal circumstances, it would not meet
the regulatory definition of ``wetlands'' and would not be
jurisdictional under the Clean Water Act. The altered nature of prior
converted cropland and its conditions constitute the ``normal
circumstances'' of such areas. The agencies expect the majority of
prior converted cropland in the nation to fall into this category and
not to be subject to the Clean Water Act, even after it is abandoned.
3. Definition of ``Ditch'' and Scope of the (b)(3) Ditch Exclusion
The regulatory status of ditches has long created confusion for
farmers, ranchers, irrigation districts, municipalities, water supply
and stormwater management agencies, and the transportation sector,
among others. To address this confusion, the agencies propose revising
the exclusion of certain ditches from the definition of ``waters of the
United States'' to be simple and clear. Under the proposed rule,
ditches (including roadside ditches) that are constructed or excavated
entirely in dry land are not ``waters of the United
[[Page 52539]]
States.'' The agencies also propose defining the term ``ditch'' at
paragraph (c)(4) of the agencies' regulations to mean ``a constructed
or excavated channel used to convey water,'' consistent with the
definition the agencies use for other Clean Water Act purposes
regarding activities occurring in certain ditches. In addition to
consistency, the proposed definition would provide clarity for
identifying ditches excluded under this proposed rule. The agencies
believe the proposed definition accurately captures the purpose and
intent of ditches as well as their basic characteristics. These changes
maintain the agencies' longstanding position that certain ditches are
not ``waters of the United States'' and more closely align the
exclusion with the Clean Water Act's statutory text.
a. Basis for the Proposed Definition
During the 1970s, the Corps interpreted its authorities under
section 404 of the Clean Water Act as excluding non-navigable \106\
drainage and irrigation ditches from the definition of ``waters of the
United States.'' See, e.g., 40 FR 31320, 31321 (July 25, 1975)
(``Drainage and irrigation ditches have been excluded.''). A similar
ditch exclusion was expressly stated in regulatory text in the Corps'
1977 regulations. 33 CFR 323.2(a)(3) (1978); 42 FR 37122, 37144 (July
19, 1977) (``manmade nontidal drainage and irrigation ditches excavated
on dry land are not considered waters of the United States under this
definition''). As the Corps explained in 1977: ``nontidal drainage and
irrigation ditches that feed into navigable waters will not be
considered `waters of the United States' under this definition. To the
extent that these activities cause water quality problems, they will be
handled under other programs of the FWPCA, including Section 208 and
402.'' 42 FR 37127 (July 19, 1977). Similar statements occurred in
preambles to the Corps' proposed rules from the early 1980s (45 FR
62732, 62747 (September 19, 1980); 48 FR 21466, 21474 (May 12, 1983)).
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\106\ Non-navigable in this context refers to ditches that are
not traditional navigable waters, such as non-tidal ditches.
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The general exclusion for non-tidal drainage and irrigation ditches
excavated in dry land continued through 1986, although the Corps
modified its earlier statements that year by noting in preamble text
that ``we generally do not consider'' such features to be ``waters of
the United States,'' and indicating that the agency would evaluate
certain ditches on a case-by-case basis. 51 FR 41206, 41217 (November
13, 1986).\107\ The EPA also included similar language in the preamble
to their 1988 Rule. 53 FR 20764 (June 6, 1988). The Corps further
clarified the treatment of ditches in its nationwide permit regulation
in March 2000, stating that ``non-tidal drainage ditches are waters of
the United States if they extend the [ordinary high water mark] of an
existing water of the United States.'' 65 FR 12818, 12823 (March 9,
2000). In other words, if flow or flooding from a jurisdictional non-
tidal river or stream inundated a drainage ditch, the agencies would
have asserted jurisdiction over the portion of that ditch that extends
the ordinary high water mark of the river or stream. This proposed
action clarifies the regulatory status of ditches in a manner that is
more consistent with the agencies' 1977 and 1986 approaches to ditches,
with some modifications to provide a clear and simple definition that
also falls within the scope of the agencies' authority under the Clean
Water Act.
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\107\ The Corps also moved the ditch exclusion from rule text to
preamble language in 1986 but stated that this was not a substantive
change and that jurisdiction was not expanded. 51 FR 41206, 41216-17
(November 13, 1986).
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The proposed rule's exclusion of certain ditches from the
definition of ``waters of the United States'' is consistent with
Congress' intent that some, but not all, ditches may be jurisdictional.
When Congress enacted the 1972 amendments to the Federal Water
Pollution Control Act, it specifically included ditches and related
artificial features as ``point sources,'' declaring them to be
``discernible, confined, and discrete conveyances . . . from which
pollutants are or may be discharged.'' Public Law 92-500, 86 Stat. 816,
887 (1972) codified at 33 U.S.C. 1362(14). Congress envisioned
protecting the quality of navigable waters by regulating the discharge
of pollutants from ``point sources'' to ``waters of the United
States,'' and defined ``discharge of a pollutant'' as ``any addition of
any pollutant to navigable waters from any point source.'' Id. at
1362(12). The Rapanos plurality examined this language and noted that,
``[t]he definition of `discharge' would make little sense'' if the
categories of ``point sources'' (e.g., ditches) and ``navigable
waters'' ``were significantly overlapping.'' Rapanos, 547 U.S. at 735-
36 & n.7. Consistent with the statutory language and the Rapanos
plurality which clearly indicate that not all ditches are ``navigable
waters,'' the proposed rule excludes certain ditches from the
definition of ``waters of the United States.''
The proposed rule's exclusion of certain ditches from the
definition of ``waters of the United States'' is also consistent with
the ordinary meaning of the term ``waters of the United States.'' The
proposed rule excludes ditches (including roadside ditches) that are
constructed or excavated entirely in dry land. These excluded ditches
are not part of the naturally occurring tributary system and do not
fall under the ordinary meaning of the term ``waters'' within the scope
of the Clean Water Act. The agencies also note that the proposed
exclusion is consistent with the agencies' prior approach of excluding
certain ditches constructed or excavated in dry land.
The agencies are not proposing to change their longstanding
interpretation that ditches satisfying any of the conditions of a
paragraph (a)(1) water are ``waters of the United States'' as paragraph
(a)(1) waters. This includes tidal ditches and navigable-in-fact
ditches that transport people, goods, and services in interstate and
foreign commerce, as those ditches--more commonly referred to as
``canals''--can provide important commercial navigation services to the
nation and operate more like other waterbodies traditionally understood
as ``navigable.'' See, e.g., id. at 736 n.7 (Scalia, J., plurality)
(``a permanently flooded man-made ditch used for navigation is normally
described, not as a `ditch,' but a `canal' '').
Under the proposed rule, the agencies limit the exclusion to those
non-navigable ditches (including roadside ditches) that are constructed
or excavated entirely in dry land, even if those ditches have
relatively permanent flow and connect to a jurisdictional water. The
agencies also propose to retain their longstanding position that the
channelization or relocation of a tributary does not modify the
jurisdictional status of that water. If a tributary is channelized, its
bed and/or banks are altered in some way (e.g., reinforced with
concrete or modified slopes), it is re-routed and entirely relocated,
or its flow is modified through water diversions or through other
means, then it remains jurisdictional under the proposed rule as long
as it continues to satisfy the conditions in the proposed definition of
``tributary.'' See section V.C of this preamble. The agencies note,
however, that the mere interface between the excluded ditch constructed
or excavated entirely in dry land and a jurisdictional water does not
make that ditch
[[Page 52540]]
jurisdictional consistent with longstanding practice. For example, a
ditch constructed or excavated entirely in dry land that connects to a
tributary would not be considered a jurisdictional ditch under the
proposed rule.
Under the proposed rule, ditches (including roadside ditches) that
are constructed or excavated in a wetland are not excluded because they
were not constructed or excavated entirely in dry land. This approach
aligns the proposed rule with the Clean Water Act section 404(f)
permitting exemption for the maintenance but not construction of
drainage ditches and the associated concern expressed during the
legislative process for the 1977 Clean Water Act amendments related to
draining swamps and wetlands.
b. Alternative Approaches
The agencies solicit comment on an alternative approach to
excluding ditches which would exclude all ditches that carry less than
a relatively permanent flow of water regardless of where and how the
ditch was constructed or excavated or what purpose it serves. This
approach is similar to the agencies' current implementation in light of
Rapanos and Sackett and would be consistent with the Rapanos
plurality's emphasis on determining jurisdiction based on the
permanence of flow in a waterbody.
The agencies also solicit comment on another alternative approach
that would exclude all non-navigable irrigation and drainage ditches,
regardless of flow duration or if the ditch is constructed or excavated
entirely in dry land. Potential definitions of irrigation ditch and
drainage ditch are in the agencies' 2020 Ditch Memorandum.\108\ Such an
approach would be consistent with the Corps' original exclusion from
1975. Most non-navigable ditches likely serve the purpose of providing
irrigation or drainage and thus would meet the terms of such an
exclusion. Many modified streams would potentially also meet the terms
of this alternative exclusion. The agencies seek comment on whether
this alternative approach is consistent with the Clean Water Act.
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\108\ U.S. Department of the Army and U.S. Environmental
Protection Agency. 2020. ``Joint Memorandum to the Field Between the
U.S. Department of the Army, Corps of Engineers and the U.S.
Environmental Protection Agency Concerning Exempt Construction or
Maintenance of Irrigation Ditches and Exempt Maintenance of Drainage
Ditches Under Section 404 of the Clean Water Act'' (July 24, 2020).
Available at https://www.epa.gov/sites/default/files/2020-07/documents/final_ditch_exemption_memo_july_2020_with_epa.pdf.
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c. Implementation of Ditch Exclusion
The agencies seek comment on the implementation of the ditch
exclusion as discussed in this section. When assessing the
jurisdictional status of a ditch, under the proposed rule the agencies
would first consider if the ditch is a traditional navigable water or
part of the territorial seas. If a ditch is a traditional navigable
water or part of the territorial seas, it would not be excluded under
the proposed rule, consistent with current and longstanding practice.
For ditches that are not paragraph (a)(1) waters, the agencies would
then assess if the ditch (including a roadside ditch) is constructed or
excavated entirely in dry land. As discussed in section V.F.3.a of this
preamble, ditches (including roadside ditches) that are constructed or
excavated in tributaries, relocate a tributary, or are constructed or
excavated in wetlands or other aquatic resources are not considered to
be constructed or excavated entirely in dry land. Such ditches would be
assessed to see if they meet the definition of ``tributary'' under
paragraph (c)(9) of the proposed rule and thus would be a paragraph
(a)(3) water. See section V.C.4 of this preamble for discussion of
implementation of tributaries under the proposed rule. If a ditch
(including a roadside ditch) is found to be constructed or excavated
entirely in dry land, it would be excluded under the proposed rule.
Even if a ditch is excluded from the definition of ``waters of the
United States,'' it may function as a point source (i.e.,
``discernible, confined, and discrete conveyance,'' 33 U.S.C.
1362(14)), such that discharges of pollutants from these features could
require a Clean Water Act permit. Identifying if a ditch was
constructed or excavated entirely in dry land may be challenging, such
as where historic records are not available. The agencies encourage
stakeholders to identify and discuss these situations in their comments
to assist in clarifying implementation.
With respect to implementing the proposed rule's paragraph (b)(5)
exclusion for certain ditches, the reach of a ditch that meets
paragraph (a)(1) of the proposed rule is considered a ``water of the
United States,'' with ``reach'' interpreted similarly to how it is used
for tributaries in section V.C.4.b of this preamble (i.e., a section of
a ditch along which similar hydrologic conditions exist, such as
discharge, depth, area, and slope). When a ditch (including a roadside
ditch) constructed or excavated entirely in dry land connects to and
extends the length of a paragraph (a)(3) tributary, even if that ditch
has relatively permanent flow, it would be considered a separate reach
from the tributary and would be excluded under the proposed rule. In
such a case, the excluded ditch is a separate reach from the tributary
because the ditch's excavated nature means that its hydrologic
conditions, such as depth, area, and slope, differ from the natural
tributary. In addition, the entirety of an excluded ditch reach would
be non-jurisdictional even when the relatively permanent flow from a
tributary to which the ditch drains enters the ditch and extends the
ordinary high water mark of the tributary into the lower portion of the
ditch reach. In another example, a ditch (including a roadside ditch)
constructed or excavated entirely in uplands with non-relatively
permanent flow that transitions to relatively permanent flow would have
two different reaches due to different flow durations, even though both
reaches would be excluded under the proposed rule.
The agencies will use the most accurate and reliable resources to
support their decisions regarding whether a feature is an excluded
ditch under the proposed rule. This will typically involve the use of
multiple sources of information, and those sources may differ depending
on the resource in question or the region in which the resource is
located. Along with field data and other current information on the
subject waters, historic tools and resources may be used to determine
whether a feature is an excluded ditch. Several sources of information
may be required to make such determination. Information sources may
include historic and current topographic maps, historic and recent
aerial photographs, Tribal, State, and local records and surface water
management plans (such as county ditch or drainage maps and datasets),
NHD or NWI data, agricultural records, street maintenance data,
precipitation records, historic permitting and jurisdictional
determination records, certain hydrogeomorphological or soil
indicators, wetlands and conservation programs and plans, and
functional assessments and monitoring efforts. For example, when a USGS
topographic map displays a tributary located upstream and downstream of
a potential ditch, this may indicate that the potential ditch was
constructed or excavated in, or served to relocate, a tributary. As
another example, an NRCS soil survey displaying the presence of
specific soil series which are linear in nature and generally parallel
to a
[[Page 52541]]
potential ditch may be indicative of alluvial deposits formed by a
tributary in which the potential ditch was constructed. Additionally,
the presence of a pond in a historic aerial photograph that lies along
the flowpath of the potential ditch, for example, may provide an
indication that the potential ditch (including a roadside ditch) was
not constructed or excavated entirely in dry land. The agencies seek
comment on these resources and their uses in relation to the proposed
ditch exclusion. The agencies also seek recommendations for additional
resources that are available to assist with implementation of the
proposed ditch exclusion and how such additional resources can be used.
Under the proposed rule, the burden of proof lies with the agencies
to demonstrate that a ditch serves to relocate a tributary or was
constructed or excavated in a tributary or other aquatic resources.
Where the agencies cannot satisfy this burden, the ditch at issue would
be considered non-jurisdictional under the proposed rule. For example,
if the agencies are not sure whether a non-navigable ditch (including a
roadside ditch) was constructed or excavated entirely in dry land given
the physical appearance and functionality of the current ditch, the
agencies will review the available information to attempt to discern
when the ditch was constructed or excavated and the nature of the
landscape before and after construction or excavation. If the evidence
does not demonstrate that the ditch (including a roadside ditch) was
constructed or excavated in an aquatic resource (e.g., a stream, river,
lake, pond, or a wetland), the ditch would be non-jurisdictional under
this proposed rule. This approach to proving the jurisdictional status
of a ditch is a change from the agencies' approach in the Amended 2023
Rule, see 88 FR 3105, but is consistent with the agencies' approach in
the NWPR, see 85 FR 22299. The agencies are proposing that the approach
to the ditch exclusion articulated in the NWPR is the best
interpretation of the statute because excluded ditches are not part of
the naturally occuring tributary system and therefore do not fit within
the ordinary meaning of the term ``waters'' within the scope of the
Clean Water Act. The agencies note that with a reasonable explanation,
they can change their position, which is offered above. See section (a)
of this section, supra. The agencies solicit comment on whether they
should consider additional reliance interests.
4. The Paragraph (b)(9) Groundwater Exclusion
a. Basis for the Proposed Exclusion
In proposed paragraph (b)(9), the agencies would exclude
groundwater, including groundwater drained through subsurface drainage
systems. The agencies have never interpreted ``waters of the United
States'' to include groundwater and would continue that practice
through this proposed rule by explicitly excluding groundwater.
The agencies are proposing to explicitly codify the NWPR's
exclusion of groundwater because groundwater is not surface water and
therefore does not fall within the possible scope of ``navigable
waters.'' The agencies propose that there is a need for a regulatory
exclusion to provide clarity on this matter. This position is
longstanding and consistent with Supreme Court case law. The agencies
have never taken the position that groundwater falls within the scope
of ``navigable waters'' under the Clean Water Act. See, e.g., 80 FR
37099-37100 (June 29, 2015) (explaining that the agencies have never
interpreted ``waters of the United States'' to include groundwater); 85
FR 22278 (April 21, 2020) (explaining that the agencies have never
interpreted ``waters of the United States'' to include groundwater).
This position was confirmed by the U.S. Supreme Court. Maui, 590 U.S.
at 176-77 (``The upshot is that Congress was fully aware of the need to
address groundwater pollution, but it satisfied that need through a
variety of state specific controls. Congress left general groundwater
regulatory authority to the States; its failure to include groundwater
in the general EPA permitting provision was deliberate.''). The
agencies acknowledge the importance of groundwater as a resource and
its role in the hydrologic cycle. But its regulation is most
appropriately addressed by other Federal, State, Tribal, and local
authorities.
The agencies acknowledge that, in certain circumstances, pollutants
released to groundwater can reach surface water resources. However, the
statutory reach of ``waters of the United States'' must be grounded in
a legal analysis of the limits on Clean Water Act jurisdiction that
Congress intended by use of the term ``navigable waters,'' and an
understanding and application of the limits expressed in Supreme Court
opinions interpreting that term. This proposed rule would do that,
while also supporting the agencies' goals of providing greater clarity,
certainty, and predictability for the regulated public and regulators.
While groundwater is not jurisdictional under the statute and would not
be under the proposed rule, many States include groundwater in their
definitions of ``waters of the State'' and therefore may subject
groundwater to State regulation. In addition, groundwater quality is
regulated and protected through several other legal mechanisms,
including the Safe Drinking Water Act, the Resource Conservation and
Recovery Act, and various Tribal, State, and local laws.
Given the proposed addition of the (b)(9) exclusion for
groundwater, the agencies are also proposing a ministerial change to
paragraph (b) to add an ``and'' to the (b)(8) category and delete the
``and'' in the (b)(7) category. This ministerial revision would be
necessary to conform to the proposed addition of (b)(9).
b. Implementation of Groundwater Exclusion
The agencies propose to include an exclusion for groundwater under
paragraph (b)(9), including groundwater drained through subsurface
drainage systems. The agencies propose adding the subsurface drainage
clarification to specify that even when groundwater is channelized in
subsurface systems, like tile drains used in agriculture, it would
still remain subject to the exclusion. However, under the proposed
rule, the exclusion would not apply to surface expressions of
groundwater, such as where groundwater emerges on the surface and
becomes baseflow in relatively permanent streams.
G. Publicly Available Jurisdictional Information and Permit Data
The agencies have provided information on jurisdictional
determinations that is readily available to the public. The Corps
maintains a website, available at https://permits.ops.usace.army.mil/orm-public, that presents information on the Corps' approved
jurisdictional determinations and Clean Water Act section 404 permit
decisions. The website allows users to search and view basic
information on approved jurisdictional determinations and permit
decisions (including latitude and longitude) and to filter the
determinations using different parameters like Corps District and year.
The website also contains a link to an associated approved
jurisdictional determination form. Similarly, EPA maintains a website,
available at https://watersgeo.epa.gov/cwa/CWA-JDs/, that presents
information on approved jurisdictional determinations made by the Corps
under the Clean Water Act since August 28, 2015. EPA's website also
allows users to search, sort, map,
[[Page 52542]]
view, filter, and download information on approved jurisdictional
determinations using different search parameters (e.g., by year,
location, State, watershed, regulatory regime). The website includes a
map viewer that shows where waters have been determined to be
jurisdictional or non-jurisdictional based on the approved
jurisdictional determinations available on the site. These websites
will incorporate information on approved jurisdictional determinations
made under the revised definition of ``waters of the United States.''
The EPA also maintains on its website information on certain
dischargers permitted under Clean Water Act section 402, including the
Permit Compliance System and Integrated Compliance Information System
database, available at https://www.epa.gov/enviro/pcs-icis-overview, as
well as the EnviroMapper, available at https://enviro.epa.gov/, and
How's My Waterway, available at https://www.epa.gov/waterdata/hows-my-waterway. The agencies also intend to provide links to the public to
any guidance, forms, or memoranda of agreement relevant to the
definition of ``waters of the United States'' on EPA's website at
https://www.epa.gov/wotus.
H. Severability
The purpose of this section is to clarify the agencies' intent with
respect to the severability of provisions of this rule. Each category
and subcategory of jurisdictional waters in this rule is capable of
operating independently. If any provision or jurisdictional category or
subcategory of this rule is determined by judicial review or operation
of law to be invalid, that partial invalidation will not render the
remainder of this rule invalid.
For example, in the absence of jurisdiction over a subcategory of
jurisdictional tributaries, adjacent wetlands, or paragraph (a)(5)
waters, references to those subcategories of waters could be removed,
and the agencies would continue to exercise jurisdiction under the
remainder of this rule (including unaffected subcategories). Each
exclusion in paragraph (b) and each definitional provision of paragraph
(c) also operates independently of the other provisions in this rule
and is intended to be severable. Moreover, the agencies intend
applications of this rule to be severable from other applications, such
that if the application of this rule to a given circumstance is held
invalid, the rule remains applicable to all other circumstances.
VI. Supporting Information
A. Regulatory Impact Analysis
This section provides an overview of the potential effects of the
proposed rule on Federal and State and Tribal regulatory programs and
potential economic impacts of the proposed rule. Additional detail is
contained in and described more fully in the Regulatory Impact Analysis
for the Proposed Rule. A copy of this document is available in the
docket for this proposed action.
The proposed rule will not impose direct requirements on entities
of any size. Instead, the agencies are proposing to clarify the
definition of ``waters of the United States,'' a foundational term in
determining the scope of key Clean Water Act programs. The agencies
anticipate that the proposed rule would result in indirect cost
savings. Potential cost savings and forgone benefits would only be
incurred as a result of actions taken under existing Clean Water Act
programs (i.e., sections 303, 311, 401, 402, and 404) that would not
otherwise be modified by this proposed rule. Entities currently are,
and would continue to be, regulated under these programs that rely on
the definition of ``waters of the United States.'' Each of these
programs may subsequently impose costs as a result of implementation of
their specific regulations. The agencies analyzed the forgone benefits
and cost savings associated with the proposed rule relative to the
baseline of the Amended 2023 Rule. They have prepared a qualitative
economic analysis within the Regulatory Impact Analysis for the
Proposed Rule to provide the public with information on the potential
forgone benefits and cost savings associated with various Clean Water
Act programs from the proposed rule's reduced scope of jurisdiction as
a response to the Sackett decision. The agencies prepared this economic
analysis pursuant to the requirements of Executive Orders 12866 and
13563 to provide information to the public. The agencies are also
evaluating options for development of a quantitative analysis of the
effects of the proposed rule and solicit input on data and methods that
could assist in that development.
The Amended 2023 Rule is stayed in certain States due to ongoing
litigation, and the agencies have been implementing the pre-2015
regulatory regime in those jurisdictions, which, following Sackett, is
very similar to the Amended 2023 Rule. This is why the agencies chose
to use one baseline for the analysis. The agencies anticipate that the
proposed rule would result in an increase in non-jurisdictional
findings in approved jurisdictional determinations compared to prior
regulations and practice, and that compared to the baseline, the
proposed rule would define fewer waters and wetlands as within the
scope of the Clean Water Act.
The agencies have provided a qualitative assessment of the proposed
changes to Clean Water Act jurisdiction under the proposed rule in
light of the Sackett decision as compared to the baseline in the
Regulatory Impact Analysis. The agencies analyzed the effects of the
changes qualitatively and assessed the impacts of the proposed changes
to the definitions of ``continuous surface connection'' and
``tributary'' (specifically, with respect to the latter, that
tributaries are limited to bodies of water that contribute surface
water flow to a downstream jurisdictional water through features that
convey relatively permanent flow, unless the tributary is part of a
currently operative water transfer), to be the most important in terms
of reducing the scope of jurisdictional waters relative to the
baseline. Further, the agencies assessed that the section 404 program
would likely be the Clean Water Act program most impacted by the
proposed rule, with projected reductions in the number of permits and
required mitigation relative to the baseline. The agencies expect
associated cost savings from the avoided 404 permits and impact
minimization and mitigation actions, as well as forgone benefits from
impact mitigation.
States and Tribes may choose to expand their coverage of their
waters beyond ``waters of the United States'' to include other waters
as ``waters of the State'' or ``waters of the Tribe.'' Although some
States and Tribes already exceed the aquatic resource or surface water
discharge protections of the proposed rule, the way States or Tribes
would interpret and apply their own regulations as a result of the
revised definition of ``waters of the United States'' is unknown. The
agencies acknowledge that States and Tribes that seek to cover waters
no longer jurisdictional under this proposed rule may incur new costs
and administrative burdens. Such obligations are inherent in the
exercise of the States' and Tribes' authority that Congress embedded in
the Clean Water Act. They are free to evaluate the most effective means
of addressing their waters and may weigh the costs and benefits of
doing so. The agencies solicit input on whether States and Tribes might
incur such burdens. The agencies also generally request comment on any
significant reliance interests that may be
[[Page 52543]]
impacted by this proposed rule, including on any effects or data about
such interests that could inform the agencies' Regulatory Impact
Analysis.
B. Children's Health
This proposed action is not subject to the EPA's Children's Health
Policy (https://www.epa.gov/children/childrens-health-policy-and-plan)
because the proposed revised definition of ``waters of the United
States'' is relevant to implementation of the Clean Water Act but does
not itself concern human health because it is simply a definitional
rule, and as such, does not directly authorize discharges into waters
of the United States.
VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is a significant regulatory action that was
submitted to the Office of Management and Budget (OMB) for review. The
EPA and the Army prepared an economic analysis of the potential cost
savings and forgone benefits associated with this action. This analysis
is contained in the Regulatory Impact Analysis for the Proposed Rule,
which is available in the docket and briefly summarized in section VI
of this preamble, above.
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 proposed rule. See, e.g.,
Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1023, 1039-40 (D.C. Cir.
2012) (citing FCC v. Fox Television Stations, Inc., 556 US. 502, 514-15
(2009), 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''). The information in the
Regulatory Impact Analysis for the Proposed Rule was not used to
establish the proposed regulatory text for the definition of ``waters
of the United States.'' Instead, the basis for this proposed rule is
the text of the Clean Water Act, as informed by Supreme Court
precedent, taking into account agency policy choices and other relevant
factors.
B. Executive Order 14192: Unleashing Prosperity Through Deregulation
This proposed action is expected to be an Executive Order 14192
deregulatory action. This proposed rule is expected to provide burden
reduction by narrowing the scope of waters that are jurisdictional
under the Clean Water Act in response to the Sackett decision. Thus,
the agencies anticipate that fewer Clean Water Act permits will be
required, which will result in cost savings and reduced regulatory
burden. Details on the avoided costs and forgone benefits associated
with this proposed rule can be found in EPA and the Army's regulatory
impact analysis in the docket.
C. Paperwork Reduction Act (PRA)
This proposed action does not impose an information collection
burden under the PRA because it does not contain any information
collection activities. However, this action may change terms and
concepts used by the EPA and the Army to implement certain programs
under the Clean Water Act. The agencies thus may need to revise some of
their collections of information to be consistent with this action and
will do so consistent with the PRA and implementing regulations. For
example, Army sometimes collects information from project applicants to
inform jurisdictional determinations under OMB Control Number 0710-
0024, and rule changes may warrant changes to that collection.
D. Regulatory Flexibility Act (RFA)
The agencies certify that this proposed action would not have a
significant economic impact on a substantial number of small entities
under the RFA. The small entities that may be indirectly subject to
this action are largely those entities whose activities are directly
covered by the Clean Water Act sections 402, 404, and 311 programs. The
proposed rule is expected to result in fewer entities subject to these
programs, and a reduced regulatory burden for many of the entities that
will still be subject to these programs. In addition, as the proposed
rule is a definitional rule and would not result in any small entities
being directly regulated by the rule, all impacts would be indirect in
nature. As a result, small entities subject to these regulatory
programs are unlikely to suffer adverse impacts as a result of
regulatory compliance.
As addressed in the Regulatory Impact Analysis for the Proposed
Rule, the proposed rule's clarification of the scope of Clean Water Act
regulatory jurisdiction over waters and wetlands in light of the
Sackett decision may result in a reduction in the ecosystem services
provided by some waters and wetlands, and as a result, some entities
may be adversely impacted. Some business sectors that depend on
habitat, such as those catering to hunters or anglers, or that require
water treatment to meet production needs, could experience a greater
impact relative to other sectors. Potential changes in ecosystem
services are likely to be small, infrequent, and dispersed over wide
geographic areas, thereby limiting the significance of these impacts on
these business sectors. In addition, States and Tribes may already
address waters potentially affected by a revised definition, thereby
reducing forgone benefits. The sectors likely to be most impacted by
the rule are mitigation banks and companies that provide aquatic
resource restoration services. Because the agencies anticipate fewer
waters would be subject to the Clean Water Act regulation under the
proposed rule than are subject to regulation under the Amended 2023
Rule, there may be a reduction in demand for mitigation and restoration
services under the section 404 permitting program. Assessing impacts to
this sector is problematic, however, because this sector lacks a
precise Small Business Administration small business definition, and
many of the businesses that fall within this sector are also classified
under various other North American Industry Classification System
categories. Furthermore, impacts to this sector would not be the direct
result of these businesses complying with the proposed rule, rather,
they would be the indirect result of other entities no longer being
required to mitigate for discharges of dredged or fill material into
waters and wetlands that would no longer be jurisdictional under the
final rule. In addition, potential impacts would be lessened when
accounting for State and Tribal dredged and fill programs that would
necessitate the purchase of mitigation credits or to take other actions
under State or Tribal law to regulate discharges of dredged or fill
material. For a more detailed discussion see the Sector Impact
Assessment section of the Regulatory Impact Analysis for the Proposed
Rule. As documented in the Regulatory Impact Analysis for the Proposed
Rule located in the docket, the agencies do not expect the cost of the
proposed rule to result in adverse impacts to a significant number of
small entities, since the proposed rule would be expected to result in
net cost savings for
[[Page 52544]]
all entities indirectly affected by this proposed rule.
E. Unfunded Mandates Reform Act (UMRA)
This proposed action does not contain an unfunded mandate as
described in UMRA, 2 U.S.C. 1531-1538, and would not significantly or
uniquely affect small governments. The proposed action would impose no
enforceable duty on any State, local, or Tribal governments or the
private sector.
F. Executive Order 13132: Federalism
Under the technical requirements of Executive Order 13132 (64 FR
43255, August 10, 1999), the agencies have determined that this
proposed rule may have federalism implications but believe that the
requirements of the Executive Order will be satisfied, in any event.
The agencies believe that a revised definition of ``waters of the
United States'' may be of significant interest to State and local
governments. Consistent with the agencies' policies to promote
communications between the Federal government and State and local
governments, the EPA and the Army consulted with representatives of
State and local governments early in the process of developing the
proposed rule to permit them to have meaningful and timely input into
its development.
Consulting with State and local government officials, or their
representative national organizations, is an important step in the
process prior to proposing regulations that may have federalism
implications under the terms of Executive Order 13132. The agencies
engaged State and local governments over a 60-day federalism
consultation period during development of this proposed rule, beginning
with the initial federalism consultation meeting on April 3, 2025, and
concluding on June 2, 2025. Fourteen intergovernmental organizations,
including six of the ten organizations identified in EPA's 2008
Executive Order 13132 Guidance, attended the initial Federalism
consultation meeting, as well as three associations representing State
and local governments. Organizations in attendance included the
following: United States Conference of Mayors, Association of Clean
Water Administrators, National Association of Counties, Western States
Water Council, American Public Works Association, National Association
of Wetland Managers, Association of State Drinking Waters
Administrators, National Conference of State Legislatures, National
Association of Towns and Townships, National League of Cities, and
American Water Works Association. In addition, the agencies held a
briefing for the National Association of State Departments of
Agriculture on April 17, 2025. The agencies also held a listening
session for States and State associations on April 29, 2025, a
listening session for local governments and their member associations
on May 6, 2025, and a listening session for State and local governments
and their member associations on May 28, 2025. All letters received by
the agencies during this consultation may be found in the docket
(Docket ID No. EPA-HQ-OW-2025-0322) for this proposed rule or in the
pre-proposal recommendations docket (Docket ID No. EPA-HQ-OW-2025-
0093).
These meetings and the letters provided by representatives provide
a wide and diverse range of interests, positions, comments, and
recommendations to the agencies. The agencies have prepared a report
summarizing their federalism consultation and additional outreach to
State and local governments and the results of this outreach. A copy of
the report is available in the docket (Docket ID. No. EPA-HQ-OW-2025-
0322) for this proposed rule.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action may have Tribal implications. However, it will
neither impose substantial direct compliance costs on federally
recognized Tribal governments, nor preempt Tribal law. The EPA and the
Army consulted with Tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes early in the process
of developing this action to permit them to have meaningful and timely
input into its development.
The agencies initiated a Tribal consultation and coordination
process before proposing this rule by sending a ``Notification of
Consultation and Coordination'' letter on March 21, 2025, to all 574
Tribes federally recognized at that time. The letter invited Tribal
leaders and designated consultation representatives to participate in
the Tribal consultation and coordination process. The agencies engaged
Tribes over a 60-day Tribal consultation period during development of
this proposed rule, including via a Tribal consultation kick-off
webinar on March 31, 2025, in which the agencies answered questions
directly from Tribal representatives and heard their initial feedback
on the agencies' rulemaking effort. The agencies also held a Tribal
listening session on April 30, 2025, to hear pre-proposal input from
Tribal governments and Tribal organizations. The agencies convened
eight one-on-one consultation meetings with individual Tribal
governments. Additional one-on-one consultations may be requested by
Tribes and scheduled after the rule is proposed. All letters received
by the agencies during this consultation may be found in the docket
(Docket ID. No. EPA-HQ-OW-2025-0322) for this proposed rule or in the
pre-proposal recommendations docket (Docket ID. No. EPA-HQ-OW-2025-
0093). The agencies have prepared a report summarizing the consultation
and further engagement with Tribal nations. This report is available in
the docket for this proposed rule (Docket ID. No. EPA-HQ-OW-2025-0322).
During the Tribal consultation and engagement efforts and in Tribal
consultation comments, many Tribes urged the agencies not to revise the
definition and expressed concern that the proposed rule would reduce
Federal jurisdiction or could adversely impact Tribal waters. One Tribe
supported the agencies' efforts to revise the definition of ``waters of
the United States'' and noted that it would increase the Tribe's
ability to manage and regulate their own Reservation lands. The
agencies acknowledge that because they generally implement Clean Water
Act programs on Tribal lands, a reduced scope of Federal jurisdiction
as a result of the Sackett decision will affect Tribes differently than
it will affect States. Currently, of the Tribes that are eligible, most
have not received treatment in a manner similar to a State (TAS) status
to administer Clean Water Act regulatory programs. While some Tribes
have established Tribal water programs under Tribal law or have the
authority to establish Tribal programs under Tribal law, many Tribes
are still building capacity and may lack resources to create a Tribal
water program under Tribal law, to administer a program, or to expand
programs that currently exist. Therefore, Tribes may disproportionately
rely on the Federal Government for water program implementation and
enforcement of water quality violations. Tribes may also be affected by
pollution from adjacent jurisdictions. Many Tribes are located in the
arid West, where there are fewer waters that may meet the relatively
permanent standard. Nonetheless, the proposed rule preserves Tribal
authority to choose whether to include waters that are not covered
under the Clean Water Act under Tribal laws and regulations. Any
decision by the Tribes to protect beyond the limits of the Clean Water
[[Page 52545]]
Act is not compelled by the statute or by this proposed rule.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risk
EPA and the Army interpret Executive Order 13045 as applying only
to those regulatory actions that concern environmental health or safety
risks that the agencies have reason to believe may disproportionately
affect children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order.
Therefore, this proposed action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk. Since this action does not concern human health, EPA's
Policy on Children's Health also does not apply.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed action is not a ``significant energy action'' because
it is not likely to have a significant adverse effect on the supply,
distribution or use of energy. This proposed action is a deregulatory
action that would reduce regulatory burden, including to the energy
sector, and thus is not anticipated to have an adverse effect on the
supply, distribution or use of energy.
J. National Technology Transfer and Advancement Act
This proposed action does not involve technical standards.
List of Subjects
33 CFR Part 328
Administrative practice and procedure, Environmental protection,
Navigation (water), Water pollution control, Waterways.
40 CFR Part 120
Environmental protection, Water pollution control, Waterways.
Adam Telle,
Assistant Secretary of the Army (Civil Works), Department of the Army.
Lee Zeldin,
Administrator, Environmental Protection Agency.
Title 33--Navigation and Navigable Waters
For the reasons set forth in the preamble, the Corps of Engineers
proposes to amend 33 CFR part 328 as follows:
PART 328--DEFINITION OF WATERS OF THE UNITED STATES
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1. The authority citation for part 328 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
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2. Section 328.3 is amended by:
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a. Revising paragraphs (a)(1)(i) and (ii);
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b. Removing paragraph (a)(1)(iii);
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c. Revising paragraph (a)(5);
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d. Revising paragraphs (b)(1), (b)(2), (b)(3), (b)(7), and (b)(8);
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e. Adding paragraph (b)(9);
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f. Redesignating paragraph (c)(3) as (c)(5);
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g. Redesignating paragraph (c)(4) as (c)(6);
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h. Redesignating paragraph (c)(5) as (c)(9); and
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i. Adding paragraphs (c)(3), (c)(4), (c)(7), (c)(8), (c)(10), and
(c)(11).
The revisions and additions read as follows:
Sec. 328.3 Definitions.
* * * * *
(a) * * *
(1) * * *
(i) Currently used, or were used in the past, or may be susceptible
to use in interstate or foreign commerce, including all waters which
are subject to the ebb and flow of the tide; or
(ii) The territorial seas;
* * * * *
(5) Lakes and ponds not identified in paragraphs (a)(1) through (4)
of this section that are relatively permanent, standing or continuously
flowing bodies of water with a continuous surface connection to the
waters identified in paragraph (a)(1) or (a)(3) of this section.
(b) * * *
(1) Waste treatment systems;
(2) Prior converted cropland;
(3) Ditches (including roadside ditches) constructed or excavated
entirely in dry land;
* * * * *
(7) Waterfilled depressions created in dry land incidental to
construction activity and pits excavated in dry land for the purpose of
obtaining fill, sand, or gravel unless and until the construction or
excavation operation is abandoned and the resulting body of water meets
the definition of waters of the United States;
(8) Swales and erosional features (e.g., gullies, small washes)
characterized by low volume, infrequent, or short duration flow; and
(9) Groundwater, including groundwater drained through subsurface
drainage systems.
* * * * *
(c) * * *
(3) Continuous surface connection means having surface water at
least during the wet season and abutting (i.e., touching) a
jurisdictional water.
(4) Ditch means a constructed or excavated channel used to convey
water.
* * * * *
(7) Prior converted cropland means any area that, prior to December
23, 1985, was drained or otherwise manipulated for the purpose, or
having the effect, of making production of an agricultural product
possible. EPA and the Corps will recognize designations of prior
converted cropland made by the Secretary of Agriculture. An area is no
longer considered prior converted cropland for purposes of the Clean
Water Act when the area is abandoned and has reverted to wetlands, as
defined in paragraph (c)(1) of this section. Abandonment occurs when
prior converted cropland is not used for, or in support of,
agricultural purposes at least once in the immediately preceding five
years. For the purposes of the Clean Water Act, the EPA Administrator
shall have the final authority to determine whether prior converted
cropland has been abandoned.
(8) Relatively permanent means standing or continuously flowing
bodies of surface water that are standing or continuously flowing year-
round or at least during the wet season.
* * * * *
(10) Tributary means a body of water with relatively permanent
flow, and a bed and banks, that connects to a downstream traditional
navigable water or the territorial seas, either directly or through one
or more waters or features that convey relatively permanent flow. A
tributary does not include a body of water that contributes surface
water flow to a downstream jurisdictional water through a feature such
as a channelized non-jurisdictional surface water feature, subterranean
river, culvert, dam, tunnel, or similar artificial feature, or through
a debris pile, boulder field, wetland, or similar natural feature, if
such feature does not convey relatively permanent flow. When the
tributary is part of a water transfer (as that term is applied under 40
CFR 122.3) currently in operation, the tributary would retain
jurisdictional status.
(11) Waste treatment system means all components of a waste
treatment system designed to meet the requirements of the Clean Water
Act, including lagoons and treatment ponds (such as settling or cooling
ponds), designed to either convey or retain, concentrate, settle,
reduce, or remove pollutants, either
[[Page 52546]]
actively or passively, from wastewater prior to discharge (or
eliminating any such discharge).
Title 40--Protection of Environment
For the reasons set forth in the preamble, the Environmental
Protection Agency proposes to amend 40 CFR part 120 as follows:
PART 120--DEFINITION OF WATERS OF THE UNITED STATES
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1. The authority citation for part 120 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
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2. Section 120.2 is amended by:
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a. Revising paragraphs (a)(1)(i) and (ii);
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b. Removing paragraph (a)(1)(iii);
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c. Revising paragraph (a)(5);
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d. Revising paragraphs (b)(1), (b)(2), (b)(3), (b)(7), and (b)(8);
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e. Adding paragraph (b)(9);
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f. Redesignating paragraph (c)(3) as (c)(5);
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g. Redesignating paragraph (c)(4) as (c)(6);
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h. Redesignating paragraph (c)(5) as (c)(9); and
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i. Adding paragraphs (c)(3), (c)(4), (c)(7), (c)(8), (c)(10), and
(c)(11).
The revisions and additions read as follows:
Sec. 120.2 Definitions.
* * * * *
(a) * * *
(1) * * *
(i) Currently used, or were used in the past, or may be susceptible
to use in interstate or foreign commerce, including all waters which
are subject to the ebb and flow of the tide; or
(ii) The territorial seas;
* * * * *
(5) Lakes and ponds not identified in paragraphs (a)(1) through (4)
of this section that are relatively permanent, standing or continuously
flowing bodies of water with a continuous surface connection to the
waters identified in paragraph (a)(1) or (a)(3) of this section.
(b) * * *
(1) Waste treatment systems;
(2) Prior converted cropland;
(3) Ditches (including roadside ditches) constructed or excavated
entirely in dry land;
* * * * *
(7) Waterfilled depressions created in dry land incidental to
construction activity and pits excavated in dry land for the purpose of
obtaining fill, sand, or gravel unless and until the construction or
excavation operation is abandoned and the resulting body of water meets
the definition of waters of the United States;
(8) Swales and erosional features (e.g., gullies, small washes)
characterized by low volume, infrequent, or short duration flow; and
(9) Groundwater, including groundwater drained through subsurface
drainage systems.
* * * * *
(c) * * *
(3) Continuous surface connection means having surface water at
least during the wet season and abutting (i.e., touching) a
jurisdictional water.
(4) Ditch means a constructed or excavated channel used to convey
water.
* * * * *
(7) Prior converted cropland means any area that, prior to December
23, 1985, was drained or otherwise manipulated for the purpose, or
having the effect, of making production of an agricultural product
possible. EPA and the Corps will recognize designations of prior
converted cropland made by the Secretary of Agriculture. An area is no
longer considered prior converted cropland for purposes of the Clean
Water Act when the area is abandoned and has reverted to wetlands, as
defined in paragraph (c)(1) of this section. Abandonment occurs when
prior converted cropland is not used for, or in support of,
agricultural purposes at least once in the immediately preceding five
years. For the purposes of the Clean Water Act, the EPA Administrator
shall have the final authority to determine whether prior converted
cropland has been abandoned.
(8) Relatively permanent means standing or continuously flowing
bodies of surface water that are standing or continuously flowing year-
round or at least during the wet season.
* * * * *
(10) Tributary means a body of water with relatively permanent
flow, and a bed and banks, that connects to a downstream traditional
navigable water or the territorial seas, either directly or through one
or more waters or features that convey relatively permanent flow. A
tributary does not include a body of water that contributes surface
water flow to a downstream jurisdictional water through a feature such
as a channelized non-jurisdictional surface water feature, subterranean
river, culvert, dam, tunnel, or similar artificial feature, or through
a debris pile, boulder field, wetland, or similar natural feature, if
such feature does not convey relatively permanent flow. When the
tributary is part of a water transfer (as that term is applied under 40
CFR 122.3) currently in operation, the tributary would retain
jurisdictional status.
(11) Waste treatment system means all components of a waste
treatment system designed to meet the requirements of the Clean Water
Act, including lagoons and treatment ponds (such as settling or cooling
ponds), designed to either convey or retain, concentrate, settle,
reduce, or remove pollutants, either actively or passively, from
wastewater prior to discharge (or eliminating any such discharge).
[FR Doc. 2025-20402 Filed 11-19-25; 8:45 am]
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