83 FR 32227 - Definition of “Waters of the United States”-Recodification of Preexisting Rule
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 134 (July 12, 2018)
Department of the Army, Corps of Engineers
ENVIRONMENTAL PROTECTION AGENCY
Federal Register Volume 83, Issue 134 (July 12, 2018)
| Page Range | 32227-32252 | |
| FR Document | 2018-14679 |
[Federal Register Volume 83, Number 134 (Thursday, July 12, 2018)] [Proposed Rules] [Pages 32227-32252] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-14679] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers 33 CFR Part 328 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401 [EPA-HQ-OW-2017-0203; FRL-9980-52-OW] RIN 2040-AF74 Definition of ``Waters of the United States''--Recodification of Preexisting Rule AGENCY: Department of Defense, Department of the Army, Corps of Engineers; Environmental Protection Agency (EPA). ACTION: Supplemental notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The purpose of this supplemental notice is for the Environmental Protection Agency (EPA) and the Department of the Army (agencies) to clarify, supplement and seek additional comment on an earlier proposal, published on July 27, 2017, to repeal the 2015 Rule Defining Waters of the United States (``2015 Rule''), which amended portions of the Code of Federal Regulations (CFR). As stated in the agencies' July 27, 2017 Notice of Proposed Rulemaking (NPRM), the agencies propose to repeal the 2015 Rule and restore the regulatory text that existed prior to the 2015 Rule, as informed by guidance in effect at that time. If this proposal is finalized, the regulations defining the scope of federal Clean Water Act (CWA) jurisdiction would be those portions of the CFR as they existed before the amendments promulgated in the 2015 Rule. Those preexisting regulatory definitions are the ones that the agencies are currently implementing in light of the agencies' final rule published on February 6, 2018, adding a February 6, 2020 applicability date to the 2015 Rule, as well as judicial decisions preliminarily enjoining and staying the 2015 Rule. DATES: Comments must be received on or before August 13, 2018. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW- 2017-0203, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The agencies may publish any comment received to the public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The agencies will generally not consider comments or comment content located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets.commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Michael McDavit, Office of Water (4504-T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 566-2428; email address: [email protected]; or Stacey Jensen, Regulatory Community of Practice (CECW-CO-R), U.S. Army Corps of Engineers, 441 G Street NW, Washington, DC 201314; telephone number: (202) 761-6903; email address: [email protected]. SUPPLEMENTARY INFORMATION: The agencies propose to repeal the Clean Water Rule: Definition of ``Waters of the United States,'' 80 FR 37054, and recodify the regulatory definitions of ``waters of the United States'' that existed prior to the August 28, 2015 effective date of the 2015 Rule. Those preexisting regulatory definitions are the ones that the agencies are currently implementing in light of the agencies' final rule (83 FR 5200, February 6, 2018), which added a February 6, 2020 applicability date to the 2015 Rule. Judicial decisions currently enjoin the 2015 Rule in 24 States as well. If this proposal is finalized, the agencies would administer the regulations promulgated in 1986 and 1988 in portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401, and would continue to interpret the statutory term ``waters of the United States'' to mean the waters covered by those regulations, as the agencies are currently implementing those regulations consistent with Supreme Court decisions and longstanding practice, as informed by applicable guidance documents, training, and experience. State, tribal, and local governments have well-defined and established relationships with the federal government in implementing CWA programs. Those relationships are not affected by this proposed rule, which would not alter the jurisdiction of the CWA compared to the regulations and practice that the agencies are currently applying. The proposed rule would permanently repeal the 2015 Rule, which amended the longstanding definition of ``waters of the United States'' in portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401, and restore the regulations as they existed prior to the amendments in the 2015 Rule.\1\ --------------------------------------------------------------------------- \1\ While EPA administers most provisions in the CWA, the Department of the Army, Corps of Engineers (Corps) administers the permitting program under section 404. During the 1980s, both agencies adopted substantially similar definitions of ``waters of the United States.'' See 51 FR 41206, Nov. 13, 1986, amending 33 CFR 328.3; 53 FR 20764, June 6, 1988, amending 40 CFR 232.2. --------------------------------------------------------------------------- The agencies are issuing this supplemental notice of proposed rulemaking (SNPRM) to clarify, supplement and give interested parties an opportunity to comment on certain important considerations and reasons for the agencies' proposal. The agencies clarify herein the scope of the solicitation of comment and the actions proposed. In response to the July 27, 2017 NPRM, (82 FR 34899), the agencies received numerous comments on the impacts of repealing the 2015 Rule in its entirety. Others commented in favor of retaining the 2015 Rule, either as written or with modifications. Some commenters interpreted the proposal as restricting their opportunity to provide such comments either supporting or opposing repeal of the 2015 Rule. In this SNPRM, the agencies reiterate that this regulatory action is intended to permanently repeal the 2015 Rule in its entirety, and we invite all interested persons to comment on whether the 2015 Rule should be repealed. [[Page 32228]] The agencies are also issuing this SNPRM to clarify that the rule adding an applicability date to the 2015 Rule does not change the agencies' decision to proceed with this proposed repeal. For the reasons discussed in this notice, the agencies propose to conclude that regulatory certainty would be best served by repealing the 2015 Rule and recodifying the scope of CWA jurisdiction currently in effect. The agencies propose to conclude that rather than achieving its stated objectives of increasing predictability and consistency under the CWA, see 80 FR 37055, the 2015 Rule is creating significant confusion and uncertainty for agency staff, regulated entities, states, tribes, local governments, and the public, particularly in view of court decisions that have cast doubt on the legal viability of the rule. To provide for greater regulatory certainty, the agencies propose to repeal the 2015 Rule and to recodify the pre-2015 regulations, thereby maintaining a longstanding regulatory framework that is more familiar to and better- understood by the agencies, states, tribes, local governments, regulated entities, and the public. Further, court rulings against the 2015 Rule suggest that the interpretation of the ``significant nexus'' standard as applied in the 2015 Rule may not comport with and accurately implement the legal limits on CWA jurisdiction intended by Congress and reflected in decisions of the Supreme Court. At a minimum, the agencies find that the interpretation of the statute adopted in the 2015 Rule is not compelled and raises significant legal questions. In light of the substantial uncertainty associated with the 2015 Rule, including by virtue of a potential stay, injunction, or vacatur of the 2015 Rule in various legal challenges, as well as the substantial experience the agencies already possess implementing the preexisting regulations that the agencies are implementing today, the agencies propose to conclude that administrative goals of regulatory certainty would be best served by repealing the 2015 Rule. The agencies also propose to conclude that the 2015 Rule exceeded the agencies' authority under the CWA by adopting such an interpretation of Justice Kennedy's ``significant nexus'' standard articulated in Rapanos v. United States and Carabell v. United States, 547 U.S. 715 (2006) (``Rapanos'') as to be inconsistent with important aspects of that opinion and to cover waters outside the scope of the Act, even though that concurring opinion was identified as the basis for the significant nexus standard articulated in the 2015 Rule. The agencies also propose to conclude that, contrary to conclusions articulated in support of the rule, the 2015 Rule appears to have expanded the meaning of tributaries and adjacent wetlands to include waters well beyond those regulated by the agencies under the preexisting regulations, as applied by the agencies following decisions of the Supreme Court in Rapanos and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (``SWANCC''). The agencies believe that the 2015 Rule may have altered the balance of authorities between the federal and State governments, contrary to the agencies' statements in promulgating the 2015 Rule and in contravention of CWA section 101(b), 33 U.S.C. 1251(b). I. Background The agencies refer the public to the Executive Summary for the NPRM, 82 FR 34899 (July 27, 2017), and incorporate it by reference herein. A. The 2015 Rule On June 29, 2015, the agencies issued a final rule (80 FR 37054) amending various portions of the CFR that set forth definitions of ``waters of the United States,'' a term contained in the CWA section 502(7) definition of ``navigable waters,'' 33 U.S.C. 1362(7). A primary purpose of the 2015 Rule was to ``increase CWA program predictability and consistency by clarifying the scope of `waters of the United States' protected under the Act.'' 80 FR 37054. The 2015 Rule attempted to clarify the geographic scope of the CWA by placing waters into three categories: (A) Waters that are categorically ``jurisdictional by rule'' in all instances (i.e., without the need for any additional analysis); (B) waters that are subject to case-specific analysis to determine whether they are jurisdictional, and (C) waters that are categorically excluded from jurisdiction. Waters that are ``jurisdictional by rule'' include (1) waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) interstate waters, including interstate wetlands; (3) the territorial seas; (4) impoundments of waters otherwise identified as jurisdictional; (5) tributaries of the first three categories of ``jurisdictional by rule'' waters; and (6) waters adjacent to a water identified in the first five categories of ``jurisdictional by rule'' waters, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters. See id. at 37104. The 2015 Rule added new definitions of key terms such as ``tributaries'' and revised previous definitions of terms such as ``adjacent'' (by adding a new definition of ``neighboring'' that is used in the definition of ``adjacent'') that would determine whether waters are ``jurisdictional by rule.'' See id. at 37105. Specifically, a tributary under the 2015 Rule is a water that contributes flow, either directly or through another water, to a water identified in the first three categories of ``jurisdictional by rule'' waters and that is characterized by the presence of the ``physical indicators'' of a bed and banks and an ordinary high water mark. ``These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and therefore an ordinary high water mark, and thus to qualify as a tributary.'' Id. The 2015 Rule does not delineate jurisdiction specifically based on categories with established scientific meanings such as ephemeral, intermittent, and perennial waters that are based on the source of the water and nature of the flow. See id. at 37076 (``Under the rule, flow in the tributary may be perennial, intermittent, or ephemeral.''). Under the 2015 Rule, tributaries need not be demonstrated to possess any specific volume, frequency, or duration of flow, or to contribute flow to a traditional navigable water in any given year or specific time period. Tributaries under the 2015 Rule can be natural, man-altered, or man-made, and they do not lose their status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. Id. at 37105-06. In the 2015 Rule, the agencies did not expressly amend the longstanding definition of ``adjacent'' (defined as ``bordering, contiguous, or neighboring''), but the agencies added a new definition of ``neighboring'' that impacted the interpretation of ``adjacent.'' The 2015 Rule defined ``neighboring'' to encompass all waters located within 100 feet of the ordinary high water mark of a category (1) through (5) ``jurisdictional by rule'' water; all waters located within the 100-year floodplain of a category (1) through (5) ``jurisdictional by rule'' water and not more than 1,500 feet from the ordinary high water mark of such water; [[Page 32229]] all waters located within 1,500 feet of the high tide line of a category (1) though (3) ``jurisdictional by rule'' water; and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. Id. at 37105. The entire water is considered neighboring if any portion of it lies within one of these zones. See id. This regulatory text did not appear in the proposed rule, and thus the agencies did not receive public comment on these numeric measures. In addition to the six categories of ``jurisdictional by rule'' waters, the 2015 Rule identifies certain waters that are subject to a case-specific analysis to determine if they have a ``significant nexus'' to a water that is jurisdictional. Id. at 37104-05. The first category consists of five specific types of waters in specific regions of the country: Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands. Id. at 37105. The second category consists of all waters located within the 100-year floodplain of any category (1) through (3) ``jurisdictional by rule'' water and all waters located within 4,000 feet of the high tide line or ordinary high water mark of any category (1) through (5) ``jurisdictional by rule'' water. Id. These quantitative measures did not appear in the proposed rule, and thus the agencies did not receive public comment on these specific measures. The 2015 Rule defines ``significant nexus'' to mean a water, including wetlands, that either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a category (1) through (3) ``jurisdictional by rule'' water. 80 FR 37106. ``For an effect to be significant, it must be more than speculative or insubstantial.'' Id. The term ``in the region'' means ``the watershed that drains to the nearest'' primary water.\2\ Id. This definition is different than the test articulated by the agencies in their 2008 Rapanos Guidance.\3\ That guidance interpreted ``similarly situated'' to include all wetlands (not waters) adjacent to the same tributary, a much less expansive treatment of similarly situated waters than in the 2015 Rule. --------------------------------------------------------------------------- \2\ In this notice, a ``primary'' water is a category (1) through (3) ``jurisdictional by rule'' water. \3\ See U.S. EPA and U.S. Army Corps of Engineers. Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States at 1 (Dec. 2, 2008) (``Rapanos Guidance''), available at https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf. The agencies acknowledge that the Rapanos Guidance did not impose legally binding requirements, see id. at 4 n.17, but believe that this guidance is relevant to the discussion in this notice. --------------------------------------------------------------------------- Under the 2015 Rule, to determine whether a water, alone or in combination with similarly situated waters across a watershed, has such an effect, one must look at nine functions such as sediment trapping, runoff storage, provision of life cycle dependent aquatic habitat, and other functions. It is sufficient for determining whether a water has a significant nexus if any single function performed by the water, alone or together with similarly situated waters in the watershed, contributes significantly to the chemical, physical, or biological integrity of the nearest category (1) through (3) ``jurisdictional by rule'' water. Id. Taken together, the enumeration of the nine functions and the more expansive consideration of ``similarly situated'' in the 2015 Rule could mean that the vast majority of water features in the United States may come within the jurisdictional purview of the federal government.\4\ Indeed, the agencies stated in the 2015 Rule that the ``the chemical, physical, and biological integrity of downstream waters is directly related to the aggregate contribution of upstream waters that flow into them, including any tributaries and connected wetlands.'' Id. at 37066. --------------------------------------------------------------------------- \4\ ``[T]he vast majority of the nation's water features are located within 4,000 feet of a covered tributary, traditional navigable water, interstate water, or territorial sea.'' U.S. EPA and Department of the Army. Economic Analysis of the EPA-Army Clean Water Rule at 11 (May 20, 2015) (``2015 Rule Economic Analysis'') (Docket ID: EPAHQ-OW-2011-0880-20866), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20866. --------------------------------------------------------------------------- The agencies also retained exclusions from the definition of ``waters of the United States'' for prior converted cropland and waste treatment systems. Id. at 37105. In addition, the agencies codified several exclusions that reflected longstanding agency practice, and added others such as ``puddles'' and ``swimming pools'' in response to concerns raised by stakeholders during the public comment period on the proposed 2015 Rule. Id. at 37096-98, 37105. B. Legal Challenges to the 2015 Rule Following the 2015 Rule's publication, 31 States \5\ and 53 non- state parties, including environmental groups, and groups representing farming, recreational, forestry, and other interests, filed complaints and petitions for review in multiple federal district \6\ and appellate \7\ courts challenging the 2015 Rule. In those cases, the challengers alleged procedural deficiencies in the development and promulgation of the 2015 Rule and substantive deficiencies in the 2015 Rule itself. Some challengers argued that the 2015 Rule was too expansive while others argued that it excluded too many waters from federal jurisdiction. --------------------------------------------------------------------------- \5\ Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico (Environment Department and State Engineer), North Carolina (Department of Environment and Natural Resources), North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming. Iowa joined the legal challenge later in the process, bringing the total to 32 States. \6\ U.S. District Courts for the Northern and Southern District of Georgia, District of Minnesota, District of North Dakota, Southern District of Ohio, Northern District of Oklahoma, Southern District of Texas, District of Arizona, Northern District of Florida, District of the District of Columbia, Western District of Washington, Northern District of California, and Northern District of West Virginia. \7\ U.S. Court of Appeals for the Second, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and District of Columbia Circuits. --------------------------------------------------------------------------- The day before the 2015 Rule's August 28, 2015 effective date, the U.S. District Court for the District of North Dakota preliminarily enjoined the 2015 Rule in the 13 States that challenged the rule in that court.\8\ The district court found those States were ``likely to succeed'' on the merits of their challenge to the 2015 Rule because, among other reasons, ``it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule.'' In particular, the court noted concern that the 2015 Rule's definition of tributary ``includes vast numbers of waters that are unlikely to have a nexus to navigable waters.'' Further, the court found that ``it appears likely that the EPA failed to comply with [Administrative Procedure Act (APA)] requirements when promulgating the Rule,'' suggesting that certain distance-based measures were not a logical outgrowth of the proposal to the 2015 Rule. North Dakota v. EPA, 127 F. Supp. 3d 1047, 1051, 1056, 1058 (D.N.D. 2015). No party sought an interlocutory appeal. --------------------------------------------------------------------------- \8\ Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. Iowa's motion to intervene in the case was granted after issuance of the preliminary injunction. --------------------------------------------------------------------------- The petitions for review filed in the courts of appeals were consolidated in the U.S. Court of Appeals for the Sixth Circuit. In that litigation, state and industry petitioners raised concerns about whether the 2015 Rule violates the Constitution and the CWA and whether its promulgation violated [[Page 32230]] procedural requirements under the APA and other statutes. Environmental petitioners also challenged the 2015 Rule, including exclusions therein. On October 9, 2015, approximately six weeks after the 2015 Rule took effect in the 37 States that were not subject to the preliminary injunction issued by the District of North Dakota, the Sixth Circuit stayed the 2015 Rule nationwide after finding, among other things, that State petitioners had demonstrated ``a substantial possibility of success on the merits of their claims.'' In re EPA & Dep't of Def. Final Rule, 803 F.3d 804 (6th Cir. 2015) (``In re EPA''). On January 13, 2017, the U.S. Supreme Court granted certiorari on the question of whether the courts of appeals have original jurisdiction to review challenges to the 2015 Rule. See Nat'l Ass'n of Mfrs. v. Dep't of Defense, 137 S. Ct. 811 (2017). The Sixth Circuit granted petitioners' motion to hold in abeyance the briefing schedule in the litigation challenging the 2015 Rule pending a Supreme Court decision on the question of the court of appeals' jurisdiction. On January 22, 2018, the Supreme Court, in a unanimous opinion, held that the 2015 Rule is subject to direct review in the district courts. Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 624 (2018). Throughout the pendency of the Supreme Court litigation (and for a short time thereafter), the Sixth Circuit's nationwide stay remained in effect. In response to the Supreme Court's decision, on February 28, 2018, the Sixth Circuit lifted the stay and dismissed the corresponding petitions for review. See In re Dep't of Def. & EPA Final Rule, 713 Fed. App'x 489 (6th Cir. 2018). Since the Supreme Court's jurisdictional ruling, district court litigation regarding the 2015 Rule has resumed. At this time, the 2015 Rule continues to be subject to a preliminary injunction issued by the District of North Dakota as to 13 States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, Wyoming, and New Mexico. The 2015 Rule also is subject to a preliminary injunction issued by the U.S. District Court for the Southern District of Georgia as to 11 more States: Georgia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia, and Wisconsin. See Georgia v. Pruitt, No. 15-cv-79 (S.D. Ga.). In another action, the U.S. District Court for the Southern District of Texas is considering preliminary injunction motions filed by parties including the States of Texas, Louisiana, and Mississippi. See Texas v. EPA, No. 3:15-cv-162 (S.D. Tex.); Am. Farm Bureau Fed'n et al. v. EPA, No. 3:15-cv-165 (S.D. Tex.). At least three additional States are seeking a preliminary injunction in the U.S. District Court for the Southern District of Ohio as well. See, e.g., States' Supplemental Memorandum in Support of Preliminary Injunction, Ohio v. EPA, No. 2:15-cv-02467 (S.D. Ohio June 20, 2018) (brief filed by the States of Ohio, Michigan, and Tennessee in support of the States' motion for a preliminary injunction against the 2015 Rule). C. Executive Order 13778, the Notice of Proposed Rulemaking, and the Applicability Date Rule The agencies are engaged in a two-step process intended to review and repeal or revise, as appropriate and consistent with law, the definition of ``waters of the United States'' as set forth in the 2015 Rule. This process began in response to Executive Order 13778 issued on February 28, 2017, by the President entitled ``Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.'' Section 1 of the Executive Order states, ``[i]t is in the national interest to ensure the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.'' The Order directed the EPA and the Army to review the 2015 Rule for consistency with the policy outlined in Section 1 of the Order and to issue a proposed rule rescinding or revising the 2015 Rule as appropriate and consistent with law (Section 2). The Executive Order also directed the agencies to ``consider interpreting the term `navigable waters' . . . in a manner consistent with'' Justice Scalia's plurality opinion in Rapanos (Section 3). On March 6, 2017, the agencies published a notice of intent to review the 2015 Rule and provide notice of a forthcoming proposed rulemaking consistent with the Executive Order. 82 FR 12532. Shortly thereafter, the agencies announced that they would implement the Executive Order in a two-step approach. On July 27, 2017, the agencies published a NPRM (82 FR 34899) that proposed to rescind the 2015 Rule and restore the regulatory text that governed prior to the promulgation of the 2015 Rule, which the agencies have been implementing since the judicial stay of the 2015 Rule consistent with Supreme Court decisions and informed by applicable guidance documents and longstanding agency practice. The agencies invited comment on the NPRM over a 62-day period. Shortly after the Supreme Court decided that the courts of appeals do not have original jurisdiction to review challenges to the 2015 Rule and directed the Sixth Circuit to dismiss the consolidated challenges to the 2015 Rule for lack of jurisdiction, the agencies issued a final rule (83 FR 5200, Feb. 6, 2018), after providing notice and an opportunity for public comment, that added an applicability date to the 2015 Rule. The applicability date was established as February 6, 2020. When adding the applicability date to the 2015 Rule, the agencies clarified that they will continue to implement nationwide the previous regulatory definition of ``waters of the United States,'' consistent with the practice and procedures the agencies implemented before and immediately following the issuance of the 2015 Rule pursuant to the preliminary injunction issued by the District of North Dakota and the nationwide stay issued by the Sixth Circuit. The agencies further explained that the final applicability date rule would ensure regulatory certainty and consistent implementation of the CWA nationwide while the agencies reconsider the 2015 Rule and potentially pursue further rulemaking to develop a new definition of ``waters of the United States.'' The applicability date rule was challenged in a number of district courts. Generally, the challenges raise concerns that the agencies' action was arbitrary and capricious because the agencies did not address substantive comments regarding the 2015 Rule, as well as procedural concerns with respect to the length of the public comment period for the proposed applicability date rule. At this time, these challenges remain pending in the district courts where they were filed. D. Comments on the Original Notice of Proposed Rulemaking The agencies accepted comments on the NPRM from July 27, 2017, through September 27, 2017. The agencies received more than 685,000 comments on the NPRM from a broad spectrum of interested parties. The agencies are continuing to review those extensive comments. Some commenters expressed support for the agencies' proposal to repeal the 2015 Rule, stating, among other things, that the 2015 Rule exceeds the agencies' statutory authority. Other commenters opposed the proposal, stating, among other things, that repealing the 2015 Rule will increase [[Page 32231]] regulatory uncertainty and adversely impact water quality. Based on the agencies' careful and ongoing review of the comments submitted in response to the NPRM, the agencies believe that it is in the public interest to provide further explanation and allow interested parties additional opportunity to comment on the proposed repeal of the 2015 Rule. Because some commenters interpreted the NPRM as restricting their ability to comment on the legal and policy reasons for or against the repeal of the 2015 Rule while others submitted comments addressing these topics, the agencies wish to make clear that comments on that subject are solicited. Additionally, some commenters appeared to be confused by whether the agencies proposed a temporary or interim, as opposed to a permanent, repeal of the 2015 Rule. While the agencies did refer to the July 2017 proposal as an ``interim action'' (82 FR 34902), that was in the context of explaining that the proposal to repeal the 2015 Rule is the first step of a two-step process, as described above, and that the agencies are planning to take the additional, second step of conducting a separate notice and comment rulemaking to propose a new definition of ``waters of the United States.'' In this notice, the agencies are clarifying that, regardless of the timing or ultimate outcome of that additional rulemaking, the agencies are proposing a permanent repeal of the 2015 Rule at this stage. This was also our intent in the NPRM. Finally, some commenters did not fully understand the precise action the NPRM proposed to take, e.g., repealing, staying, or taking some other action with respect to the 2015 Rule. The agencies are issuing this SNPRM and are inviting all interested persons to comment on whether the agencies should repeal the 2015 Rule and recodify the regulations currently being implemented by the agencies. E. Comments on This Supplemental Notice of Proposed Rulemaking As discussed in the next sections, the agencies are proposing to permanently repeal the 2015 Rule. The agencies welcome comment on all issues that are relevant to the consideration of whether to repeal the 2015 Rule. In response to the initial NPRM, many commenters have already provided comment on considerations and issues that weigh in favor of or against repeal, including many of the issues articulated below. The agencies will consider all of those previously submitted comments, in addition to any new comments submitted in response to this SNPRM, in taking a final action on this rulemaking. As such, commenters need not resubmit comments already provided in response to the agencies' July 27, 2017 NPRM (82 FR 34899). II. Proposal To Repeal the 2015 Rule A. Legal Authority To Repeal The agencies' ability to repeal an existing regulation through notice-and-comment rulemaking is well-grounded in the law. The APA defines rulemaking to mean ``agency process for formulating, amending, or repealing a rule.'' 5 U.S.C. 551(5). The CWA complements this authority by providing the Administrator with broad authority to ``prescribe such regulations as are necessary to carry out the functions under this Act.'' 33 U.S.C. 1361(a). This broad authority includes regulations that repeal or revise CWA implementing regulations promulgated by a prior administration. The Supreme Court has made clear that ``[a]gencies are free to change their existing policies as long as they provide a reasoned explanation for the change,'' and ``[w]hen an agency changes its existing position, it `need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.' '' Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (citations omitted). The NPRM discussed how the agencies may revise or repeal the regulatory definition of ``waters of the United States'' so long as the agencies' action is based on a reasoned explanation. See 82 FR 34901. The agencies can do so based on changes in circumstance, or changes in statutory interpretation or policy judgments. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009); Ctr. for Sci. in Pub. Interest v. Dep't of Treasury, 797 F.2d 995, 998-99 & n.1 (D.C. Cir. 1986). The agencies' interpretation of the statutes they administer, such as the CWA, are not ``instantly carved in stone''; quite the contrary, the agencies ``must consider varying interpretations and the wisdom of [their] policy on a continuing basis, . . . for example, in response to . . . a change in administrations.'' Nat'l Cable & Telecommc'ns Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981-82 (2005) (``Brand X'') (internal quotation marks omitted) (quoting Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 863-64 (1984)) (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part)). The Supreme Court and lower courts have acknowledged an agency's ability to repeal regulations promulgated by a prior administration based on changes in agency policy where ``the agency adequately explains the reasons for a reversal of policy.'' See Brand X, 545 U.S. at 981. A revised rulemaking based ``on a reevaluation of which policy would be better in light of the facts'' is ``well within an agency's discretion,'' and ``[a] change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal'' of its regulations and programs. Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1038 & 1043 (D.C. Cir. 2012) (``NAHB''). B. Legal Background 1. The Clean Water Act Congress amended the Federal Water Pollution Control Act (FWPCA), or Clean Water Act (CWA) as it is commonly called,\9\ in 1972 to address longstanding concerns regarding the quality of the nation's waters and the federal government's ability to address those concerns under existing law. Prior to 1972, the ability to control and redress water pollution in the nation's waters largely fell to the Corps under the Rivers and Harbors Act of 1899. Congress had also enacted the Water Pollution Control Act of 1948, Public Law 80-845, 62 Stat. 1155 (June 30, 1948), to address interstate water pollution, and subsequently amended that statute in 1956 (giving the statute is current formal name), 1961, and 1965. The early versions of the CWA promoted the development of pollution abatement programs, required states to develop water quality standards, and authorized the federal government to bring enforcement actions to abate water pollution. --------------------------------------------------------------------------- \9\ The FWPCA is commonly referred to as the CWA following the 1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566 (1977). For ease of reference, the agencies will generally refer to the FWPCA in this notice as the CWA or the Act. --------------------------------------------------------------------------- These early statutory efforts, however, proved inadequate to address the decline in the quality of the nation's waters, see City of Milwaukee v. Illinois, 451 U.S. 304, 310 (1981), so Congress performed a ``total restructuring'' and ``complete rewriting'' of the existing statutory framework in 1972, id. at 317 (quoting legislative history of 1972 amendments). That restructuring resulted in the enactment of a comprehensive scheme designed to prevent, reduce, and eliminate pollution in the nation's waters generally, and to regulate the discharge of pollutants into navigable waters specifically. See, e.g., [[Page 32232]] S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 385 (2006) (``[T]he Act does not stop at controlling the `addition of pollutants,' but deals with `pollution' generally[.]''). The objective of the new statutory scheme was ``to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'' 33 U.S.C. 1251(a). In order to meet that objective, Congress declared two national goals: (1) ``that the discharge of pollutants into the navigable waters be eliminated by 1985;'' and (2) ``that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983. . . .'' Id. at 1251(a)(1)-(2). Congress established several key policies that direct the work of the agencies to effectuate those goals. For example, Congress declared as a national policy ``that the discharge of toxic pollutants in toxic amounts be prohibited; . . . that Federal financial assistance be provided to construct publicly owned waste treatment works; . . . that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; . . . [and] that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution.'' Id. at 1251(a)(3)-(7). Congress envisioned a major role for the states in implementing the CWA, and the CWA also recognizes the importance of preserving the states' independent authority and responsibility in this area. The CWA balances the traditional power of states to regulate land and water resources within their borders with the need for a federal water quality regulation to protect the waters of the United States. For example, the statute reflects ``the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution'' and ``to plan the development and use . . . of land and water resources. . . .'' Id. at 1251(b). Congress also declared as a national policy that states manage the major construction grant program and implement the core permitting programs authorized by the statute, among other responsibilities. Id. Congress added that ``nothing in this Act shall . . . be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.'' Id. at 1370. Congress also pledged to provide technical support and financial aid to the states ``in connection with the prevention, reduction, and elimination of pollution.'' Id. at 1251(b). To carry out these policies, Congress broadly defined ``pollution'' to mean ``the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water,'' id. at 1362(19), to parallel the broad objective of the Act ``to restore and maintain the chemical, physical, and biological integrity of the Nation's waters,'' id. at 1251(a). Congress then crafted a non- regulatory statutory framework to provide technical and financial assistance to the states to prevent, reduce, and eliminate pollution in the broader set of the nation's waters. For example, section 105 of the Act, ``Grants for research and development,'' authorized EPA ``to make grants to any State or States or interstate agency to demonstrate, in river basins or portions thereof, advanced treatment and environmental enhancement techniques to control pollution from all sources, . . . including nonpoint sources, . . . [and] for research and demonstration projects for prevention of pollution of any waters by industry including, but not limited to, the prevention, reduction, and elimination of the discharge of pollutants.'' 33 U.S.C. 1255(b)-(c) (emphases added); see also id. at 1256(a) (authorizing EPA to issue ``grants to States and to interstate agencies to assist them in administering programs for the prevention, reduction, and elimination of pollution''). Section 108, ``Pollution control in the Great Lakes,'' authorized EPA to enter into agreements with any state to develop plans for the ``elimination or control of pollution, within all or any part of the watersheds of the Great Lakes.'' Id. at 1258(a) (emphasis added); see also id. at 1268(a)(3)(C) (defining the ``Great Lakes System'' as ``all the streams, rivers, lakes, and other bodies of water within the drainage basin of the Great Lakes''). Similar broad pollution control programs were created for other major watersheds, including, for example, the Chesapeake Bay, see id. at 1267(a)(3), Long Island Sound, see id. at 1269(c)(2)(D), and Lake Champlain, see id. at 1270(g)(2). For the narrower set of the nation's waters identified as ``navigable waters'' or ``the waters of the United States,'' id. at 1362(7), Congress created a federal regulatory permitting program designed to address the discharge of pollutants into those waters. Section 301 contains the key regulatory mechanism: ``Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful.'' Id. at 1311(a). A ``discharge of a pollutant'' is defined to include ``any addition of any pollutant to navigable waters from any point source,'' such as a pipe, ditch or other ``discernible, confined and discrete conveyance.'' Id. at 1362(12), (14) (emphasis added). The term ``pollutant,'' as compared to the broader term ``pollution,'' id. at 1362(19), means ``dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.'' Id. at 1362(6). Thus, it is unlawful to discharge pollutants into navigable waters (defined in the Act as ``the waters of the United States'') from a point source unless the discharge complies with certain enumerated sections of the CWA, including obtaining authorizations to discharge pollutants pursuant to the section 402 National Pollutant Discharge Elimination System (NPDES) permit program and the section 404 dredged or fill material permit program. See id. at 1342 and 1344. Under this statutory scheme, the states are responsible for developing water quality standards for waters of the United States within their borders and reporting on the condition of those waters to EPA every two years. Id. at 1313, 1315. States are also responsible for developing total maximum daily loads (TMDLs) for waters that are not meeting established water quality standards and must submit those TMDLs to EPA for approval. Id. at 1313(d). States also have authority to issue water quality certifications or waive certification for every federal permit or license issued within their borders that may result in a discharge to navigable waters. Id. at 1341. A change to the interpretation of ``waters of the United States'' may change the scope of waters subject to CWA jurisdiction and thus may change the scope of waters for which states may assume these responsibilities under the Act. These same regulatory authorities can be assumed by Indian tribes under section 518 of the CWA, which authorizes EPA to treat eligible Indian tribes in a manner similar to states for a variety of purposes, including administering each of the principal [[Page 32233]] CWA regulatory programs. Id. at 1377(e). In addition, states and tribes retain sovereign authority to protect and manage the use of those waters that are not navigable waters under the CWA. See, e.g., id. at 1251(b), 1251(g), 1370, 1377(a). Forty-seven states administer the CWA section 402 permit program for those waters of the United States within their boundaries, and two administer the section 404 permit program. At present, no tribes administer the section 402 or 404 programs. The agencies must develop regulatory programs designed to ensure that the full statute is implemented as Congress intended. See, e.g., Hibbs v. Winn, 542 U.S. 88, 101 (2004) (``A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.''). This includes pursuing the overall ``objective'' of the CWA to ``restore and maintain the chemical, physical, and biological integrity of the Nation's waters,'' 33 U.S.C. 1251(a), while implementing the specific ``policy'' directives from Congress to, among other things, ``recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution'' and ``to plan the development and use . . . of land and water resources,'' id. at 1251(b). See Webster's II, New Riverside University Dictionary (1994) (defining ``policy'' as a ``plan or course of action, as of a government[,] designed to influence and determine decisions and actions;'' an ``objective'' is ``something worked toward or aspired to: Goal''). To maintain that balance, the agencies must determine what Congress had in mind when it defined ``navigable waters'' in 1972 as simply ``the waters of the United States''--and must do so in light of, inter alia, the policy directive to preserve and protect the states' rights and responsibilities. Congress' authority to regulate navigable waters derives from its power to regulate the ``channels of interstate commerce'' under the Commerce Clause. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); see also United States v. Lopez, 514 U.S. 549, 558-59 (1995) (describing the ``channels of interstate commerce'' as one of three areas of congressional authority under the Commerce Clause). The Supreme Court explained in SWANCC that the term ``navigable'' indicates ``what Congress had in mind as its authority for enacting the Clean Water Act: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.'' 531 U.S. 159, 172 (2001). The Court further explained that nothing in the legislative history of the Act provides any indication that ``Congress intended to exert anything more than its commerce power over navigation.'' Id. at 168 n.3. The Supreme Court has cautioned that one must look to the underlying purpose of the statute to determine the scope of federal authority being exercised over navigable waters under the Commerce Clause. See PPL Montana, LLC v. Montana, 132 S. Ct. 1215, 1228 (2012). The Supreme Court did that in United States v. Riverside Bayview Homes, for example, and determined that Congress had intended ``to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed `navigable' under the classical understanding of that term.'' 474 U.S. 121, 133 (1985) (``[T]he evident breadth of congressional concern for protection of water quality and aquatic ecosystems suggests that it is reasonable for the Corps to interpret the term `waters' to encompass wetlands adjacent to waters as more conventionally defined.''); see also SWANCC, 531 U.S. at 167 (noting that the Riverside Bayview ``holding was based in large measure upon Congress' unequivocal acquiescence to, and approval of, the Corps' regulations interpreting the CWA to cover wetlands adjacent to navigable waters''). The classical understanding of the term navigable was first articulated by the Supreme Court in The Daniel Ball: Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the Acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. 77 U.S. (10 Wall.) 557, 563 (1871). Over the years, this traditional test has been expanded to include waters that had been used in the past for interstate commerce, see Economy Light & Power Co. v. United States, 256 U.S. 113, 123 (1921), and waters that are susceptible for use with reasonable improvement, see United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407-10 (1940). By the time the 1972 CWA amendments were enacted, the Supreme Court had also made clear that Congress' authority over the channels of interstate commerce was not limited to regulation of the channels themselves, but could extend to activities necessary to protect the channels. See Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 523 (1941) (``Congress may exercise its control over the non- navigable stretches of a river in order to preserve or promote commerce on the navigable portions.''). The Supreme Court had also clarified that Congress could regulate waterways that formed a part of a channel of interstate commerce, even if they are not themselves navigable or do not cross state boundaries. See Utah v. United States, 403 U.S. 9, 11 (1971). These developments were discussed during the legislative process leading up to the passage of the 1972 CWA amendments, and certain members referred to the scope of the amendments as encompassing waterways that serve as ``links in the chain'' of interstate commerce as it flows through various channels of transportation, such as railroads and highways. See, e.g., 118 Cong. Rec. 33756-57 (1972) (statement of Rep. Dingell); 118 Cong. Rec. 33699 (Oct. 4, 1972) (statement of Sen. Muskie).\10\ Other references suggest that congressional committees at least contemplated applying the ``control requirements'' of the Act ``to the navigable waters, portions thereof, and their tributaries.'' S. Rep. No. 92-414, 92nd Cong., 1st Sess. at 77 (1971). And in 1977, when Congress authorized State assumption over the section 404 dredged or fill material permitting program, Congress limited the scope of assumable waters by requiring the Corps to retain permitting authority over Rivers and Harbors Act waters (as identified by the Daniel Ball test) plus wetlands adjacent to those waters, minus historic use only waters. See 33 U.S.C. 1344(g)(1).\11\ This suggests that Congress had in mind a broader scope of waters subject to CWA jurisdiction than waters traditionally understood as navigable. See SWANCC, 531 U.S. at 171; Riverside Bayview, 474 U.S. at 138 n.11. --------------------------------------------------------------------------- \10\ The agencies recognize that individual member statements are not a substitute for full congressional intent, but they do help provide context for issues that were discussed during the legislative debates. For a detailed discussion of the legislative history of the 1972 CWA amendments, see Albrecht & Nickelsburg, Could SWANCC Be Right? A New Look at the Legislative History of the Clean Water Act, 32 ELR 11042 (Sept. 2002). \11\ For a detailed discussion of the legislative history supporting the enactment of section 404(g), see Final Report of the Assumable Waters Subcommittee (May 2017), App. F. --------------------------------------------------------------------------- Thus, Congress intended to assert federal authority over more than just waters traditionally understood as navigable, and Congress rooted that [[Page 32234]] authority in ``its commerce power over navigation.'' SWANCC, 531 U.S. at 168 n.3. However, there must necessarily be a limit to that authority and to what water is subject to federal jurisdiction. How the agencies should exercise that authority has been the subject of dispute for decades, but the Supreme Court on three occasions has analyzed the issue and provided some instructional guidance. 2. U.S. Supreme Court Precedent a. Adjacent Wetlands In Riverside Bayview, the Supreme Court considered the Corps' assertion of jurisdiction over ``low-lying, marshy land'' immediately abutting a water traditionally understood as navigable on the grounds that it was an ``adjacent wetland'' within the meaning of the Corps' then-existing regulations. 474 U.S. at 124. The Court addressed the question whether non-navigable wetlands may be regulated as ``waters of the United States'' on the basis that they are ``adjacent to'' navigable-in-fact waters and ``inseparably bound up with'' them because of their ``significant effects on water quality and the aquatic ecosystem.'' See id. at 131-35 & n.9. In analyzing the meaning of adjacency, the Court captured the difficulty in determining where the limits of federal jurisdiction end, noting that the line is somewhere between open water and dry land: In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: The transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs--in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of ``waters'' is far from obvious. Id. at 132 (emphasis added). Within this statement, the Supreme Court identifies a basic principle for adjacent wetlands: The limits of jurisdiction lie within the ``continuum'' or ``transition'' ``between open waters and dry land.'' Observing that Congress intended the CWA ``to regulate at least some waters that would not be deemed `navigable,' '' the Court therefore held that it is ``a permissible interpretation of the Act'' to conclude that ``a wetland that actually abuts on a navigable waterway'' falls within the ``definition of `waters of the United States.' '' Id. at 133, 135. Thus, a wetland that abuts a navigable water traditionally understood as navigable is subject to CWA permitting because it is ``inseparably bound up with the `waters' of the United States.'' Id. at 134. ``This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water.'' Id. The Court also noted that the agencies can establish categories of jurisdiction for adjacent wetlands. See id. at 135 n.9. The Supreme Court in Riverside Bayview declined to decide whether wetlands that are not adjacent to navigable waters could also be regulated by the agencies. See id. at 124 n.2 & 131 n.8. In SWANCC, however, the Supreme Court analyzed a similar question in the context of an abandoned sand and gravel pit located some distance from a traditional navigable water, with excavation trenches that ponded--some only seasonally--and served as habitat for migratory birds. 531 U.S. at 162-65. The Supreme Court rejected the government's stated rationale for asserting jurisdiction over these ``nonnavigable, isolated, intrastate waters.'' Id. at 171-72. In doing so, the Supreme Court noted that Riverside Bayview upheld ``jurisdiction over wetlands that actually abutted on a navigable waterway'' because the wetlands were ``inseparably bound up with the `waters' of the United States.'' Id. at 167.\12\ As summarized by the SWANCC majority: --------------------------------------------------------------------------- \12\ For additional context, at oral argument during Riverside Bayview, the government attorney characterized the wetland at issue as ``in fact an adjacent wetland, adjacent--by adjacent, I mean it is immediately next to, abuts, adjoins, borders, whatever other adjective you might want to use, navigable waters of the United States.'' Transcript of Oral Argument at 16, United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (No. 84-701). It was the significant nexus between the wetlands and ``navigable waters'' that informed our reading of the CWA in Riverside Bayview Homes. Indeed, we did not ``express any opinion'' on the ``question of authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water. . . . In order to rule for [the Corps] here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text --------------------------------------------------------------------------- of the statute will not allow this. Id. at 167-68 (internal citations omitted). That is because the text of section 404(a)--the permitting provision at issue in the case--included the word ``navigable'' as its operative phrase, and signaled a clear direction to the Court that ``Congress had in mind . . . its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.'' Id. at 172. The Court dismissed the argument that the use of the abandoned ponds by migratory birds fell within the power of Congress to regulate activities that in the aggregate have a substantial effect on interstate commerce, or that the targeted use of the ponds as a municipal landfill was commercial in nature. Id. at 173. Such arguments, the Court noted, raised ``significant constitutional questions.'' Id. ``Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result.'' Id. at 172-73 (``Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority.''). This is particularly true ``where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.'' Id. at 173; see also Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242-43 (1985) (finding that where Congress intends to alter the ``usual constitutional balance between the States and the Federal Government,'' it must make its intention to do so ``unmistakably clear in the language of the statute''); Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) (``[The] plain statement rule . . . acknowledg[es] that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.''). ``Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose [in the CWA] to `recognize, preserve, and protect the primary responsibilities and rights of States . . . to plan the development and use . . . of land and water resources. . . .'' SWANCC, 531 U.S. at 174 (quoting 33 U.S.C. 1251(b)). The Court therefore found no clear statement from Congress that it had intended to permit federal encroachment on traditional state power, and construed the CWA to avoid the significant constitutional questions related to the scope of federal authority authorized therein. Id. The Supreme Court considered the concept of adjacency again several years later in consolidated cases arising out of the Sixth Circuit. See Rapanos v. United States, 547 U.S. 715 (2006). In one case, the Corps had determined that wetlands on three separate sites were subject to CWA jurisdiction because they were adjacent to ditches or man-made drains that eventually connected to traditional navigable waters several miles away through other ditches, drains, creeks, and/or rivers. Id. at 719-20, 729. In another case, the Corps had asserted [[Page 32235]] jurisdiction over a wetland separated from a man-made drainage ditch by a four-foot-wide man-made berm. Id. at 730. The ditch emptied into another ditch, which then connected to a creek, and eventually connected to Lake St. Clair, a traditional navigable water, approximately a mile from the parcel at issue. The berm was largely or entirely impermeable, but may have permitted occasional overflow from the wetland to the ditch. Id. The Court, in a fractured opinion, vacated and remanded the Sixth Circuit's decision upholding the Corps' asserted jurisdiction over the four wetlands at issue, with Justice Scalia writing for the plurality and Justice Kennedy concurring in the judgment. Id. at 757 (plurality), 787 (Kennedy, J.). The plurality determined that CWA jurisdiction only extended to adjacent ``wetlands with a continuous surface connection to bodies that are `waters of the United States' in their own right, so that there is no clear demarcation between `waters' and wetlands.'' Id. at 742. The plurality then concluded that ``establishing that wetlands . . . are covered by the Act requires two findings: first, that the adjacent channel contains a `wate[r] of the United States,' (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the `water' ends and the `wetland' begins.'' Id. (alteration in original). In order to reach the adjacency conclusion of this two-part test, the plurality interpreted the Riverside Bayview decision, and subsequent SWANCC decision characterizing Riverside Bayview, as authorizing jurisdiction over wetlands that physically abutted traditional navigable waters. Id. at 740-42. The plurality focused on the ``inherent ambiguity'' described in Riverside Bayview in determining where on the continuum between open waters and dry land the scope of federal jurisdiction should end. Id. at 740. It was ``the inherent difficulties of defining precise bounds to regulable waters,'' id. at 741 n.10, according to the plurality, that prompted the Court in Riverside Bayview to defer to the Corps' inclusion of adjacent wetlands as ``waters'' subject to CWA jurisdiction based on ecological considerations. Id. at 740-41 (``When we characterized the holding of Riverside Bayview in SWANCC, we referred to the close connection between waters and the wetlands they gradually blend into: `It was the significant nexus between the wetlands and `navigable waters' that informed our reading of the CWA in Riverside Bayview Homes.' ''). The plurality also noted that ``SWANCC rejected the notion that the ecological considerations upon which the Corps relied in Riverside Bayview . . . provided an independent basis for including entities like `wetlands' (or `ephemeral streams') within the phrase `the waters of the United States.' SWANCC found such ecological considerations irrelevant to the question whether physically isolated waters come within the Corps' jurisdiction.'' Id. at 741-42 (emphasis in original). Justice Kennedy disagreed with the plurality's determination that adjacency requires a ``continuous surface connection'' to covered waters. Id. at 772. In reading the phrase ``continuous surface connection'' to mean a continuous ``surface-water connection,'' id. at 776, and interpreting the plurality's standard to include a ``surface- water-connection requirement,'' id. at 774, Justice Kennedy stated that ``when a surface-water connection is lacking, the plurality forecloses jurisdiction over wetlands that abut navigable-in-fact waters--even though such navigable waters were traditionally subject to federal authority,'' id. at 776, even after the Riverside Bayview Court ``deemed it irrelevant whether `the moisture creating the wetlands . . . find[s] its source in the adjacent bodies of water,'' id. at 772 (internal citations omitted). This is one reason why Justice Kennedy stated that ``Riverside Bayview's observations about the difficulty of defining the water's edge cannot be taken to establish that when a clear boundary is evident, wetlands beyond that boundary fall outside the Corps' jurisdiction.'' Id. at 773. The plurality did not directly address the precise distinction raised by Justice Kennedy, but did note in response that the ``Riverside Bayview opinion required'' a ``continuous physical connection,'' id. at 751 n.13 (emphasis added), and focused on evaluating adjacency between a ``water'' and a wetland ``in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview.'' Id. at 757. The plurality also noted that its standard includes a ``physical- connection requirement'' between wetlands and covered waters. Id. at 751 n.13. In other words, the plurality appeared to be more focused on the abutting nature rather than the source of water creating the wetlands at issue in Riverside Bayview to describe the legal constructs applicable to adjacent wetlands, see id. at 747; see also Webster's II, New Riverside University Dictionary (1994) (defining ``abut'' to mean ``to border on'' or ``to touch at one end or side of something''), and indeed agreed with Justice Kennedy and the Riverside Bayview Court that ``[a]s long as the wetland is `adjacent' to covered waters . . . its creation vel non by inundation is irrelevant.'' Id. at 751 n.13.\13\ --------------------------------------------------------------------------- \13\ The agencies' Rapanos Guidance recognizes the plurality's ``continuous surface connection'' does not refer to a continuous surface water connection. See, e.g., Rapanos Guidance at 7 n.28 (``A continuous surface connection does not require surface water to be continuously present between the wetland and the tributary.''). --------------------------------------------------------------------------- Because physically disconnected wetlands do not raise the same boundary-drawing concerns presented by actually abutting wetlands, the plurality determined that the rationale in Riverside Bayview does not apply to such features. The plurality stated 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 lack the necessary connection to covered waters that we described as a `significant nexus' in SWANCC[.]'' Id. at 742. The plurality supported this position by referring to the Court's treatment of isolated waters in SWANCC as non- jurisdictional. Id. at 726, 741-42 (``[W]e held that `nonnavigable, isolated, intrastate waters'--which, unlike the wetlands at issue in Riverside Bayview, did not `actually abu[t] on a navigable waterway,'-- were not included as `waters of the United States.' ''). The plurality found ``no support for the inclusion of physically unconnected wetlands as covered `waters' '' based on Riverside Bayview's treatment of the Corps' definition of adjacent. Id. at 746-47; see also id. at 746 (``[T]he Corps' definition of `adjacent' . . . has been extended beyond reason.''). Concurring in the judgment, Justice Kennedy focused on the ``significant nexus'' between the adjacent wetlands and traditional navigable waters as the basis for determining whether a wetland is a water subject to CWA jurisdiction: ``It was the significant nexus between wetlands and navigable waters . . . that informed our reading of the [Act] in Riverside Bayview Homes. Because such a nexus was lacking with respect to isolated ponds, [in SWANCC] the Court held that the plain text of the statute did not permit the Corps' action.'' Id. at 767 (internal quotations and citations omitted). Justice Kennedy noted that the wetlands at issue in Riverside Bayview were ``adjacent to [a] navigable-in-fact waterway[ ],'' while the ``ponds and [[Page 32236]] mudflats'' considered in SWANCC ``were isolated in the sense of being unconnected to other waters covered by the Act.'' Id. at 765-66. ``Taken together, these cases establish that in some instances, as exemplified by Riverside Bayview, the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a `navigable water' under the Act. In other instances, as exemplified by SWANCC, there may be little or no connection. Absent a significant nexus, jurisdiction under the Act is lacking.'' Id. at 767. According to Justice Kennedy, whereas the isolated ponds and mudflats in SWANCC lack the ``significant nexus'' to navigable waters, it is the ``conclusive standard for jurisdiction'' based on ``a reasonable inference of ecological interconnection'' between adjacent wetlands and navigable-in-fact waters that allows for their categorical inclusion as waters of the United States. Id. at 780 (``[T]he assertion of jurisdiction for those wetlands [adjacent to navigable-in-fact waters] is sustainable under the act by showing adjacency alone.''). Justice Kennedy surmised that it may be that the same rationale ``without any inquiry beyond adjacency . . . could apply equally to wetlands adjacent to certain major tributaries,'' noting that the Corps could establish by regulation categories of tributaries based on volume of flow, proximity to navigable waters, or other factors that ``are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.'' Id. at 780-81. However, ``[t]he Corps' existing standard for tributaries'' provided Justice Kennedy ``no such assurance'' to infer the categorical existence of a requisite nexus between waters traditionally understood as navigable and wetlands adjacent to nonnavigable tributaries. Id. at 781. That is because: the breadth of [the tributary] standard--which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes towards it--precludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood. Indeed, in many cases wetlands adjacent to tributaries covered by this standard might appear little more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act's scope in SWANCC. Id. at 781-82. Justice Kennedy stated that, absent development of a more specific regulation, the Corps ``must establish a significant nexus on a case- by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries. Given the potential overbreadth of the Corps' regulations, this showing is necessary to avoid unreasonable applications of the statute.'' Id. at 782. Justice Kennedy explained that ``wetlands possess the requisite nexus, and thus come within the statutory phrase `navigable waters,' if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable.' '' Id. at 780. ``Where an adequate nexus is established for a particular wetland, it may be permissible, as a matter of administrative convenience or necessity, to presume covered status for other comparable wetlands in the region.'' Id. at 782. In describing this significant nexus test, Justice Kennedy relied, in part, on the overall objective of the CWA to ``restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'' Id. at 779 (quoting 33 U.S.C. 1251(a)). Justice Kennedy also agreed with the plurality that ``environmental concerns provide no reason to disregard limits in the statutory text.'' Id. at 778. With respect to wetlands adjacent to nonnavigable tributaries, Justice Kennedy therefore determined that ``mere adjacency . . . is insufficient. A more specific inquiry, based on the significant-nexus standard, is . . . necessary.'' Id. at 786. Not requiring adjacent wetlands to possess a significant nexus with navigable waters, Justice Kennedy noted, would allow a finding of jurisdiction ``whenever wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow into traditional navigable waters. The deference owed the Corps' interpretation of the statute does not extend so far.'' Id. at 778-79. Based on the agencies' review of this Supreme Court precedent, although the plurality and Justice Kennedy established different standards to determine the jurisdictional status of wetlands adjacent to nonnavigable tributaries, they both appear to agree in principle that the determination must be made using a two-part test that considers: (1) The proximity of the wetland to the tributary; and (2) the status of the tributary with respect to downstream traditional navigable waters. The plurality and Justice Kennedy also agree that the proximity between the wetland and the tributary must be close. The plurality refers to that proximity as a ``continuous surface connection'' or ``continuous physical connection,'' as demonstrated in Riverside Bayview. Id. at 742, 751 n.13. Justice Kennedy recognized that ``the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a `navigable water' under the Act.'' Id. at 767. The second part of the two-part tests established by the plurality and Justice Kennedy is addressed in the next section. b. Tributaries The definition of tributaries was not addressed in either Riverside Bayview or SWANCC. And while the focus of Rapanos was on whether the Corps could regulate wetlands adjacent to nonnavigable waters, the plurality and concurring opinions provide some guidance on the regulatory status of tributaries to navigable-in-fact waters. The plurality and Justice Kennedy both recognized that the jurisdictional scope of the CWA is not restricted to traditional navigable waters. See id. at 731 (plurality) (``[T]he Act's term `navigable waters' includes something more than traditional navigable waters.''); id. at 767 (Justice Kennedy) (``Congress intended to regulate at least some waters that are not navigable in the traditional sense.''). Both also agree that federal authority under the Act is not without limit. See id. at 731-32 (plurality) (``[T]he waters of the United States . . . cannot bear the expansive meaning that the Corps would give it.''); id. at 778-79 (Justice Kennedy) (``The deference owed to the Corps' interpretation of the statute does not extend'' to ``wetlands'' which ``lie alongside a ditch or drain, however remote or insubstantial, that eventually may flow into traditional navigable waters.''). With respect to tributaries specifically, both the plurality and Justice Kennedy focus in large part on a tributary's contribution of flow to, and connection with, traditional navigable waters. The plurality would include as waters of the United States ``only relatively permanent, standing or flowing bodies of water'' and would define such ``waters'' as including streams, rivers, oceans, lakes and other bodies of waters that form geographical features, noting that all such ``terms connote continuously present, fixed bodies of water . . . .'' Id. at 732-33, 739. On the other hand, the plurality would likely exclude ephemeral streams [[Page 32237]] and related features. Id. at 733-34, 739, 741. Justice Kennedy would likely exclude some streams considered jurisdictional under the plurality's test. Id. at 769 (noting that under the plurality's test, ``[t]he merest trickle, if continuous, would count as a `water' subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not''). In addition, both the plurality and Justice Kennedy would likely include some intermittent streams as waters of the United States. See id. at 732-33 & n.5 (plurality); id. at 769-70 (Justice Kennedy). The plurality noted that its reference to ``relatively permanent'' waters did ``not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,'' or ``seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months . . . .'' Id. at 732 n.5 (emphasis in original). However, neither the plurality nor Justice Kennedy defined with precision where to draw the line. Nevertheless, the plurality provided that ``navigable waters'' must have ``at bare minimum, the ordinary presence of water,'' id. at 734, and Justice Kennedy noted that the Corps can identify by regulation categories of tributaries based on volume of flow, proximity to navigable waters, or other factors that ``are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.'' Id. at 780-81. And both the plurality and Justice Kennedy agreed that the Corps' assertion of jurisdiction over the wetlands adjacent to the ``drains, ditches, and streams remote from any navigable-in-fact water,'' id. at 781 (Kennedy), at issue in Rapanos raised significant jurisdictional questions. Id. at 737-38 (plurality); id. at 781-82 (Kennedy). 3. Principles and Considerations From this legal foundation, a few important principles emerge from which the agencies can evaluate their authorities. First, the power conferred on the agencies to regulate the waters of the United States is grounded in Congress' commerce power over navigation. The agencies can choose to regulate beyond waters more traditionally understood as navigable given the broad purposes of the CWA, including some tributaries to those traditional navigable waters, but must provide a reasonable basis grounded in the language and structure of the Act for determining the extent of jurisdiction. The agencies also can choose to regulate wetlands adjacent to the traditional navigable waters and some tributaries, if the wetlands are in close proximity to the tributaries, such as in the transitional zone between open waters and dry land. In the agencies' view, it would not be consistent with Justice Kennedy's Rapanos opinion or the Rapanos plurality opinion to regulate wetlands adjacent to all tributaries, no matter how small or remote from navigable water. The Court's opinion in SWANCC also calls into serious question the agencies' authority to regulate nonnavigable, isolated, intrastate waters that lack a sufficient connection to traditional navigable waters, and suggests that the agencies should avoid regulatory interpretations of the CWA that raise constitutional questions regarding the scope of their statutory authority. The agencies can, however, regulate certain waters by category, which could improve regulatory predictability and certainty and ease administrative burden while still effectuating the purposes of the Act. In developing a clear and predictable regulatory framework, the agencies also must respect the primary responsibilities and rights of States and Tribes to regulate their land and water resources. See 33 U.S.C. 1251(b), 1370. The oft-quoted objective of the CWA to ``restore and maintain the chemical, physical, and biological integrity of the Nation's waters,'' id. at 1251(a), must be implemented in a manner consistent with Congress' policy directives to the agencies. The Supreme Court long ago recognized the distinction between federal waters traditionally understood as navigable and waters ``subject to the control of the States.'' The Daniel Ball, 77 U.S. (10 Wall.) 557, 564-65 (1871). Over a century later, the Supreme Court in SWANCC reaffirmed the State's ``traditional and primary power over land and water use.'' 531 U.S. at 174; accord Rapanos, 547 U.S. at 738 (Scalia, J., plurality opinion). Ensuring that States and Tribes retain authority over their land and water resources pursuant to CWA section 101(b) and section 510 helps carry out the overall objective of the CWA, and ensures that the agencies are giving full effect and consideration to the entire structure and function of the Act, including Congress' intent as reflected in dozens of non-regulatory grant, research, nonpoint source, groundwater, and watershed planning programs to assist the states in controlling pollution in the nation's waters, not just its navigable waters. Further, the agencies are cognizant that the ``Clean Water Act imposes substantial criminal and civil penalties for discharging any pollutant into waters covered by the Act without a permit. . . .'' U.S. Army Corps of Eng'rs v. Hawkes Co., 136 S. Ct. 1807, 1812 (2016); see also Sackett v. EPA, 566 U.S. 120, 132-33 (2012) (Alito, J., concurring) (``[T]he combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA's tune.''). As the Chief Justice observed in Hawkes, ``[i]t is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does.'' 136 S. Ct. at 1812; see also id. at 1816-17 (Kennedy, J., concurring) (``[T]he reach and systemic consequences of the Clean Water Act remain a cause for concern,'' and the Act ``continues to raise troubling questions regarding the Government's power to cast doubt on the full use and enjoyment of private property throughout the Nation.''). Given the significant civil and criminal penalties associated with the CWA, it is important for the agencies to promote regulatory certainty while striving to provide fair and predictable notice of the limits of federal jurisdiction. See, e.g., Sessions v. Dimaya, 138 S. Ct. 1204, 1223-25 (2018) (Gorsuch, J., concurring in part and concurring in the judgment) (characterizing fair notice as possibly the most fundamental of the protections provided by the Constitution's guarantee of due process, and stating that vague laws are an exercise of ``arbitrary power . . . leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up''). C. Proposed Reasons for Repeal The agencies' proposal is based on our view that regulatory certainty may be best served by repealing the 2015 Rule and recodifying the preexisting scope of CWA jurisdiction. Specifically, the agencies are concerned that rather than achieving their stated objectives of increasing regulatory predictability and consistency under the CWA, retaining the 2015 Rule creates significant uncertainty for agency staff, regulated entities, and the public, which is compounded by court decisions that have increased litigation risk and cast doubt on the legal viability of the rule. To provide for greater regulatory certainty, the agencies propose to revert to the pre-2015 regulations, a regulatory regime that is more familiar to and better-understood by the agencies, States, Tribes, local governments, regulated entities, and the public. [[Page 32238]] Further, as a result of the agencies' review and reconsideration of their statutory authority and in light of the court rulings against the 2015 Rule that have suggested that the agencies' interpretation of the ``significant nexus'' standard as applied in the 2015 Rule was expansive and does not comport with and accurately implement the limits on jurisdiction reflected in the CWA and decisions of the Supreme Court, the agencies are also concerned that the 2015 Rule lacks sufficient statutory basis. The agencies are proposing to conclude in the alternative that, at a minimum, the interpretation of the statute adopted in the 2015 Rule is not compelled, and a different policy balance can be appropriate. Considering the substantial uncertainty associated with the 2015 Rule resulting from its legal challenges, and the substantial experience the agencies and others possess with the longstanding regulatory framework currently being administered by the agencies, the agencies conclude that clarity, predictability, and consistency may be best served by repealing the 2015 Rule and thus are proposing to do so. The agencies may still propose changes to the definition of ``waters of the United States'' in a future rulemaking. Further, the agencies are concerned that certain findings and assumptions supporting adoption of the 2015 Rule were not correct, and that these conclusions, if erroneous, may separately justify repeal of the 2015 Rule. The agencies are concerned and seek comment on whether the 2015 Rule significantly expanded jurisdiction over the preexisting regulatory program, as implemented by the agencies, and whether that expansion altered State, tribal, and local government relationships in implementing CWA programs. The agencies therefore propose to repeal the 2015 Rule in order to restore those preexisting relationships and better serve the balance of authorities envisioned in CWA section 101(b). 1. The 2015 Rule Fails To Achieve Regulatory Certainty The agencies are proposing to repeal the 2015 Rule because it does not appear to achieve one of its primary goals of providing regulatory certainty and consistency. When promulgating the 2015 Rule, the agencies concluded the rule would ``increase CWA program predictability and consistency by clarifying the scope of `waters of the United States' protected under the Act.'' 80 FR 37054. The agencies stated that the 2015 ``rule reflect[ed] the judgment of the agencies in balancing the science, the agencies' expertise, and the regulatory goals of providing clarity to the public while protecting the environment and public health, consistent with the law.'' Id. at 37065. Since then, developments in the litigation against the 2015 Rule and concerns raised since the rule's promulgation indicate that maintaining the 2015 Rule would produce substantial uncertainty and confusion among state and federal regulators and enforcement officials, the regulated public, and other interested stakeholders. To provide for greater regulatory certainty, the agencies propose to repeal the 2015 Rule and restore a longstanding regulatory framework that is more familiar to and better-understood by the agencies, our co-regulators, and regulated entities, until the agencies propose and finalize a replacement definition. a. Litigation to Date As noted above, the 2015 Rule has been challenged in legal actions across multiple district courts, in which plaintiffs have raised a number of substantive and procedural claims against the rule. Petitions for review were also filed in multiple courts of appeals and were consolidated in the U.S. Court of Appeals for the Sixth Circuit. To date, all three of the courts that substantively have considered the 2015 Rule--the Sixth Circuit, the District of North Dakota, and the Southern District of Georgia--have found that petitioners seeking to overturn the rule are likely to succeed on the merits of at least some of their claims against the rule. In the Sixth Circuit, the court granted a nationwide stay of the 2015 Rule after finding, among other factors, that the petitioners showed a ``substantial possibility of success on the merits'' of their claims against the 2015 Rule, including claims that the rule was inconsistent with Justice Kennedy's opinion in Rapanos and that the rule's distance limitations were not substantiated by specific scientific support. In re EPA, 803 F.3d 804, 807 (6th Cir. 2015). The District of North Dakota made similar findings in issuing a preliminary injunction against the 2015 Rule. There, the court found that the plaintiff-States are ``likely to succeed on the merits of their claim'' that the rule violated the congressional grant of authority to the agencies under the CWA because the rule ``likely fails'' to meet Justice Kennedy's significant nexus test. North Dakota v. EPA, 127 F. Supp. 3d 1047, 1055-56 (D.N.D. 2015). The court also found that the plaintiff-States have a fair chance of success on the merits of their procedural claims that the agencies failed to comply with APA requirements in promulgating the rule. Id. at 1056-57. The Southern District of Georgia also preliminarily enjoined the 2015 Rule, holding that the State plaintiffs had demonstrated ``a likelihood of success on their claims that the [2015] WOTUS Rule was promulgated in violation of the CWA and the APA.'' Georgia v. Pruitt, No. 15-cv-79, 2018 U.S. Dist. LEXIS 97223, at *14 (S.D. Ga. June 8, 2018) (``Georgia'') (granting preliminary injunction). The court determined that the 2015 Rule likely failed to meet the standard expounded in SWANCC and Rapanos, and that the rule was likely fatally defective because it ``allows the Agencies to regulate waters that do not bear any effect on the `chemical, physical, and biological integrity' of any navigable-in-fact water.'' Id. at *17-18. The court also held that the plaintiffs ``have demonstrated a likelihood of success on both of their claims under the APA'' that the 2015 Rule ``is arbitrary and capricious'' and ``that the final rule is not a logical outgrowth of the proposed rule.'' Id. at *18. These rulings indicate that substantive or procedural challenges to the 2015 Rule are likely to be successful, particularly claims that the rule is not authorized under the CWA and was promulgated in violation of the APA. A successful challenge to the 2015 Rule could result in a court order vacating the rule in all or part, in all or part of the country, and potentially resulting in different regulatory regimes being in effect in different parts of the country, which would likely lead to substantial regulatory confusion, uncertainty, and inconsistency. Notably, the agencies face an increasing risk of a court order vacating the 2015 Rule. The District of North Dakota is proceeding to hear the merits of the plaintiff-States' claims against the 2015 Rule in that case, and the plaintiff-States in the Southern District of Georgia have requested a similar merits-briefing schedule. See Scheduling Order, North Dakota v. EPA, No. 15-cv-59 (D.N.D. May 2, 2018); Response to Defendants' Updated Response to Plaintiff States' Motion for Preliminary Injunction at 11-12, Georgia, No. 15-cv-79 (S.D. Ga. May 29, 2018). Although the applicability date rule ensures that the 2015 Rule will not go into effect until February 6, 2020, the prospect of a court order vacating the 2015 Rule creates additional regulatory uncertainty. [[Page 32239]] b. Stakeholder Confusion Regarding the Scope of the 2015 Rule and Extent of Federal CWA Jurisdiction Statements made in the litigation against the 2015 Rule and in comments regarding the 2015 Rule indicate that there has been substantial disagreement and confusion as to the scope of the 2015 Rule and the extent of federal CWA jurisdiction more broadly. In the Sixth Circuit, for example, State petitioners asserted that the 2015 Rule covers waters outside the scope of the CWA pursuant to SWANCC and Rapanos and ``extends jurisdiction to virtually every potentially wet area of the country.'' \14\ Industry petitioners contended that the rule's ``uncertain standards are impossible for the public to understand or the agencies to apply consistently.'' \15\ In contrast, environmental petitioners found that SWANCC and Rapanos led to widespread confusion over the scope of the CWA and that the pre-2015 regulatory regime could theoretically apply to ``almost all waters and wetlands across the country.'' \16\ These petitioners asserted that the 2015 Rule violated the CWA by failing to cover certain waters, including waters that may possess a ``significant nexus'' to traditional navigable waters.\17\ Whether such comments are accurate or not, they indicate continued widespread disagreement and confusion over the meaning of the 2015 Rule and extent of jurisdiction it entails. --------------------------------------------------------------------------- \14\ Opening Brief of State Petitioners at 15, 61, In re EPA, No. 15-3751 (6th Cir. Nov. 1, 2016). \15\ Opening Brief for the Business & Municipal Petitioners, In re EPA, No. 15-3751 (6th Cir. Nov. 1, 2016). \16\ Brief of Conservation Groups at 11, In re EPA, No. 15-3751 (6th Cir. Nov. 1, 2016). \17\ See, e.g., id. at 22, 43. --------------------------------------------------------------------------- Some comments received on the July 27, 2017 NPRM also demonstrate continued confusion over the scope and various provisions of the 2015 Rule. For example, one commenter found that the rule's definitions of ``adjacent,'' ``significant nexus'' and other key terms lack clarity and thus lead to regulatory uncertainty.\18\ This same commenter contended that the rule could raise constitutional concerns related to the appropriate scope of federal authority and encouraged the agencies to undertake a new rulemaking to more clearly articulate the extent of federal CWA authority. Another commenter echoed these concerns, alleging that the 2015 Rule resulted in a ``vague and indecipherable explanation'' of the definition of ``waters of the United States'' that has caused confusion and uncertainty as to the extent of jurisdiction that can be asserted by federal, state and local authorities.\19\ --------------------------------------------------------------------------- \18\ See comments submitted by Oregon Cattlemen's Association (July 27, 2017) (Docket ID: EPA-HQ-OW-2017-0203-0039), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-0039. \19\ See comments submitted by Skagit County Dike, Drainage and Irrigation District No. 12 and Skagit County Dike District No. 1 (Sept. 27, 2017) (Docket ID: EPA-HQ-OW-2017-0203-11709), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-11709. --------------------------------------------------------------------------- The agencies have received comments from numerous other individuals and entities expressing confusion and concern about the extent of federal CWA jurisdiction asserted under the 2015 Rule, and the agencies are continuing to review and consider these comments. c. Impact on State Programs Like other commenters on the proposal to the 2015 Rule, some States expressed confusion regarding the scope of the proposal and, uniquely, the potential impacts of that uncertainty on States' ability to implement CWA programs. Though some States have stated that the 2015 Rule ``more clearly identifies what types of waters would be considered jurisdictional,'' \20\ others assert that the extent of CWA jurisdiction under the rule remained ``fuzzy'' and unclear.\21\ Certain States noted that this uncertainty could ``create time delays in obtaining permits which previously were not required'' \22\ and ``result in increased costs to the State and other private and public interests, along with decreased regulatory efficiency.'' \23\ One State suggested that even if the 2015 Rule established greater regulatory clarity, the rule's case-by-case determinations could result in permitting delays when a jurisdictional determination is required.\24\ --------------------------------------------------------------------------- \20\ See, e.g., comments submitted by State of Washington, Department of Ecology (Nov. 13, 2014) (Docket ID: EPA-HQ-OW-2011- 0880-13957), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-13957. \21\ See, e.g., comments submitted by State of Oklahoma (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-14625), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-14625; see also comments submitted by National Association of Counties (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-15081), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15081. \22\ See comments submitted by State of Utah, Governor's Office (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-16534), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-16534. \23\ See comments submitted by Wyoming Department of Environmental Quality (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011- 0880-16393), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-16393. \24\ See comments submitted by State of Washington, Department of Ecology, supra note 20. --------------------------------------------------------------------------- Similar concerns have been raised in the litigation challenging the 2015 Rule. For example, in the Southern District of Georgia, the State of Indiana has asserted that the 2015 Rule's definition of ``waters of the United States'' is ``vague'' and that the rule ``imposes . . . unclear regulatory requirements that will result in an inefficient use of limited regulatory resources.'' \25\ In particular, the State asserts concerns that implementing the 2015 Rule will divert resources by ``[d]emanding the time and attention of regulators to make the now- difficult determination of when and whether a feature is a WOTUS'' and ``[g]enerating unnecessary administrative appeals and lawsuits to resolve jurisdictional disputes.'' \26\ --------------------------------------------------------------------------- \25\ Statement of Bruno L. Pigott, Georgia, No. 15-cv-79 (S.D. Ga. July 21, 2015). \26\ Id. --------------------------------------------------------------------------- d. Agency Experience With the 1986 Regulations The agencies have been implementing the pre-2015 regulations (hereinafter referred to as the ``1986 regulations'') almost uninterruptedly since 1986. Corps staff are trained on making jurisdictional determinations in the field and through national webinars and classroom or field-based trainings. From June 2007 through June 2018, the Corps issued 241,857 \27\ approved jurisdictional determinations (AJDs) under their 1986 regulations, as informed by applicable Supreme Court precedent and the agencies' guidance. --------------------------------------------------------------------------- \27\ U.S. Army Corps of Engineers, OMBIL Regulatory Module (June 5, 2018). --------------------------------------------------------------------------- Through over 30 years of experience, the agencies have developed significant technical expertise with the 1986 regulations and have had the opportunity to refine the application of the rules through guidance and the agencies' experience and federal court decisions. Indeed, the 1986 regulations have been the subject of a wide body of case law, including three significant U.S. Supreme Court decisions \28\ and dozens of cases in federal district courts and courts of appeals that have addressed the scope of analysis required. Since 1986, the agencies have issued numerous memoranda, guidance, and question-and-answer documents explaining and clarifying these regulations.\29\ --------------------------------------------------------------------------- \28\ Riverside Bayview, 474 U.S. 121 (1985); SWANCC, 531 U.S. 159 (2001); Rapanos, 547 U.S. 715 (2006). \29\ The Corps maintains many of these documents on its public website, available at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Related-Resources/CWA-Guidance/ . The EPA maintains many of these documents as well; see also https://www.epa.gov/wotus-rule/about-waters-united-states. --------------------------------------------------------------------------- Given the longstanding nature and history of the 1986 regulations, this [[Page 32240]] regulatory regime is more familiar to the agencies, co-regulators, and regulated entities. For this reason, as between the 2015 Rule and the 1986 regulations, the 1986 regulations (as informed by applicable Supreme Court precedent and the agencies' guidance) would appear to provide for greater regulatory predictability, consistency, and certainty, and the agencies seek public comment on this issue. Though the agencies acknowledge that the 1986 regulations have posed certain implementation difficulties and were the subject of court decisions that had the effect of narrowing their scope, the longstanding nature of the regulatory regime--coupled with the agencies' and others' extensive experience with the regulatory scheme--make it preferable to the regulatory uncertainty posed by the 2015 Rule. 2. The 2015 Rule May Exceed the Agencies' Authority Under the CWA The agencies are concerned that the 2015 Rule exceeded EPA's authority under the CWA by adopting an expansive interpretation of the ``significant nexus'' standard that covers waters outside the scope of the Act and stretches the significant nexus standard so far as to be inconsistent with important aspects of Justice Kennedy's opinion in Rapanos, even though this opinion was identified as the basis for the significant nexus standard articulated in the 2015 Rule. In particular, the agencies are concerned that the 2015 Rule took an expansive reading of Justice Kennedy's significant nexus test and exceeds the agencies' authority under the Act. As expounded in Rapanos, Justice Kennedy's significant nexus standard is a test intended to limit federal jurisdiction due to the breadth of the Corps' then-existing standard for tributaries and in order to ``prevent[ ] problematic applications of the statute.'' 547 U.S. at 783. ``Given the potential overbreadth of the Corps' [1986] regulations,'' Justice Kennedy found that the showing of a significant nexus ``is necessary to avoid unreasonable applications of the statute.'' Id. at 782. The agencies are concerned, upon further consideration of the 2015 Rule, that the significant nexus standard articulated in that rule could lead to similar unreasonable applications of the CWA. Justice Kennedy wrote that adjacent ``wetlands possess the requisite nexus, and thus come within the statutory phrase `navigable waters,' if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable.' '' 547 U.S. at 780. The opinion did not expressly define the relevant ``region'' or what was meant by ``similarly situated,'' but it is reasonable to presume that that the Justice did not mean ``similarly situated'' to be synonymous with ``all'' waters in a region. The agencies' Rapanos Guidance, for example, had interpreted the term ``similarly situated'' more narrowly to ``include all wetlands adjacent to the same tributary.'' \30\ ``A tributary . . . is the entire reach of the stream that is of the same order (i.e., from the point of confluence, where two lower order streams meet to form the tributary, downstream to the point such tributary enters a higher order stream).'' \31\ Thus, under the agencies' 2008 guidance, ``where evaluating significant nexus for an adjacent wetland, the agencies will consider the flow characteristics and functions performed by the tributary to which the wetland is adjacent along with the functions performed by the wetland and all other wetlands adjacent to that tributary. This approach reflects the agencies' interpretation of Justice Kennedy's term `similarly situated' to include all wetlands adjacent to the same tributary. . . . Interpreting the phrase `similarly situated' to include all wetlands adjacent to the same tributary is reasonable because such wetlands are physically located in a like manner (i.e., lying adjacent to the same tributary).'' \32\ --------------------------------------------------------------------------- \30\ Rapanos Guidance at 8. \31\ Id. at 10. \32\ Id. --------------------------------------------------------------------------- The 2015 Rule departed from this interpretation of ``similarly situated'' wetlands in a ``region,'' including applying it to other waters, not only wetlands, that were not already categorically jurisdictional as tributaries or adjacent waters. The proposed rule, for example, stated that ``[o]ther waters, including wetlands, are similarly situated when they perform similar functions and are located sufficiently close together or sufficiently close to a `water of the United States' so that they can be evaluated as a single landscape unit with regard to their effect on the chemical, physical, or biological integrity of a [primary] water.'' 79 FR 22263 (April 21, 2014). The 2015 Rule took it a step further and stated that ``the downstream health of larger downstream waters is directly related to the aggregate health of waters located upstream, including waters such as wetlands that may not be hydrologically connected but function together to ameliorate the potential impacts of flooding and pollutant contamination from affecting downstream waters.'' 80 FR 37063. The 2015 Rule thus concluded that ``[a] water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest [primary] water.'' Id. at 37106. The ``term `in the region' means the watershed that drains to the nearest [primary] water.'' Id. An examination of all of the waters in ``the watershed'' of ``the nearest [primary] water'' under the 2015 Rule therefore may have materially broadened the scope of aggregation that determines jurisdiction in a ``significant nexus'' inquiry for waters not categorically jurisdictional from the focus in the proposed rule on waters ``located sufficiently close together or sufficiently close to a `water of the United States' so that they can be evaluated as a single landscape unit.'' 79 FR 22263. The agencies in finalizing the rule viewed the scientific literature through a broader lens as ``the effect of landscape position on the strength of the connection to the nearest `water of the United States,' '' and that ``relevant factors influencing chemical connectivity include hydrologic connectivity . . . , surrounding land use and land cover, the landscape setting, and deposition of chemical constituents (e.g., acidic deposition).'' 80 FR 37094. The agencies are concerned that this important change in the interpretation of ``similarly situated waters'' from the proposed 2015 Rule and the 2008 Rapanos Guidance may not be explainable by the scientific literature, including the Connectivity Report \33\ cited throughout the preamble to the 2015 Rule, in light of the agencies' view at the time that ``[t]he scientific literature does not use the term `significant' as it is defined in a legal context.'' 80 FR 37062. The agencies solicit comment on whether the agencies' justification for the 2015 Rule's interpretation of ``similarly situated'' with reference to an entire watershed for purposes of waters not categorically jurisdictional relied on the scientific literature without due regard for the restraints imposed by the statute and case law, and whether this interpretation of Justice Kennedy's significant nexus standard is a reason, at a minimum because of the legal risk it [[Page 32241]] creates, to repeal the 2015 Rule. As discussed, the 2015 Rule included distance-based limitations that were not specified in the proposal. In light of this, the agencies also solicit comment on whether these distance-based limitations mitigated or affected the agencies' change in interpretation of similarly situated waters in the 2015 Rule. --------------------------------------------------------------------------- \33\ U.S. EPA. Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Jan. 2015) (EPA/600/R-14/475F). --------------------------------------------------------------------------- The agencies are also concerned that the 2015 Rule does not give sufficient effect to the term ``navigable'' in the CWA. See South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 510 n.22 (1986) (``It is our duty to give effect, if possible, to every clause and word of a statute[.]'' (quoting United States v. Menasche, 348 U.S. 528, 538-39 (1955)) (internal quotation marks omitted)). Justice Kennedy's concurring opinion in Rapanos, on which the 2015 Rule relied heavily for its basis, recognized the term ``navigable'' must have ``some importance'' and, if that word has any meaning, the CWA cannot be interpreted to ``permit federal regulation whenever wetlands lie along a ditch or drain, however remote and insubstantial, that eventually may flow into traditional navigable waters.'' Rapanos, 547 U.S. at 778-79 (Kennedy, J., concurring in judgment). When interpreting the Rapanos decision and its application for determining the scope of CWA jurisdiction in 2008, the agencies wrote ``[p]rincipal considerations when evaluating significant nexus include the volume, duration, and frequency of the flow of water in the tributary and the proximity of the tributary to a traditional navigable water.'' \34\ The agencies are considering whether the 2015 Rule's definitions of ``tributary'' and ``adjacent'' were so broad as to eliminate consideration of these factors in a manner consistent with Justice Kennedy's opinion and the CWA. --------------------------------------------------------------------------- \34\ Rapanos Guidance at 10. --------------------------------------------------------------------------- The 2015 Rule stated that the agencies assessed ``the significance of the nexus'' to navigable water ``in terms of the CWA's objective to `restore and maintain the chemical, physical, and biological integrity of the Nation's waters.' '' 80 FR 37056 (quoting 33 U.S.C. 1251(a)). Under the 2015 Rule, a significant nexus may be established by an individual water or by collectively considering ``similarly situated'' waters across a ``region,'' defined as ``the watershed that drains to the nearest [primary] water identified.'' Id. at 37106. The agencies are now concerned that this broad reliance on biological functions, such as the provision of life cycle dependent aquatic habitat, may not comport with the CWA and Justice Kennedy's statement in Rapanos that ``environmental concerns provide no reason to disregard limits in the statutory text.'' See 547 U.S. at 778. In particular, the agencies are mindful that the Southern District of Georgia's preliminary injunction of the 2015 Rule was based in part on the court's holding that the 2015 Rule likely is flawed for the same reason as the Migratory Bird Rule: ``the WOTUS Rule asserts that, standing alone, a significant `biological effect'--including an effect on `life cycle dependent aquatic habitat[s]'--would place a water within the CWA's jurisdiction. Thus, this WOTUS Rule will likely fail for the same reason that the rule in SWANCC failed.'' Georgia, 2018 U.S. Dist. LEXIS 97223, at *18 (quoting 33 CFR 328.3(c)(5)). The agencies solicit comment on whether the 2015 Rule is flawed in the same manner as the Migratory Bird Rule, including whether the 2015 Rule raises significant constitutional questions similar to the questions raised by the Migratory Bird Rule as discussed by the Supreme Court in SWANCC. Moreover, the 2015 Rule relied on a scientific literature review-- the Connectivity Report--to support exerting federal jurisdiction over certain waters based on nine enumerated functions. See 80 FR 37065 (``the agencies interpret the scope of `waters of the United States' protected under the CWA based on the information and conclusions in the [Connectivity] Report''). The report notes that connectivity ``occur[s] on a continuum or gradient from highly connected to highly isolated,'' and ``[t]hese variations in the degree of connectivity are a critical consideration to the ecological integrity and sustainability of downstream waters.'' Id. at 37057. In its review of a draft version of the Connectivity Report, EPA's Science Advisory Board (``SAB'') noted, ``[s]patial proximity is one important determinant of the magnitude, frequency and duration of connections between wetlands and streams that will ultimately influence the fluxes of water, materials and biota between wetlands and downstream waters.'' \35\ ``Wetlands that are situated alongside rivers and their tributaries are likely to be connected to those waters through the exchange of water, biota and chemicals. As the distance between a wetland and a flowing water system increases, these connections become less obvious.'' \36\ The Connectivity Report also recognizes that ``areas that are closer to rivers and streams have a higher probability of being connected than areas farther away.'' Connectivity Report at ES-4. --------------------------------------------------------------------------- \35\ Science Advisory Board, U.S. EPA. Review of the EPA Water Body Connectivity Report at 60 (Oct. 17, 2014). \36\ Id. at 55. --------------------------------------------------------------------------- Yet, the SAB observed that ``[t]he Report is a science, not policy, document that was written to summarize the current understanding of connectivity or isolation of streams and wetlands relative to large water bodies such as rivers, lakes, estuaries, and oceans.'' \37\ ``The SAB also recommended that the agencies clarify in the preamble to the final rule that `significant nexus' is a legal term, not a scientific one.'' 80 FR 37065. And in issuing the 2015 Rule, the agencies stated, ``the science does not provide a precise point along the continuum at which waters provide only speculative or insubstantial functions to downstream waters.'' Id. at 37090. --------------------------------------------------------------------------- \37\ Id. at 2. --------------------------------------------------------------------------- The agencies now believe that they previously placed too much emphasis on the information and conclusions of the Connectivity Report when setting jurisdictional lines in the 2015 Rule, relying on its environmental conclusions in place of interpreting the statutory text and other indicia of Congressional intent to ensure that the agencies' regulations comport with their statutory authority to regulate. This is of particular concern to the agencies today with respect to the agencies' broad application of Justice Kennedy's phrase ``similarly situated lands. '' As discussed previously, the agencies took an expansive reading of this phrase, in part based on ``one of the main conclusions of the [Connectivity Report] . . . that the incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands in that watershed,'' see 80 FR 37066. Yet, Justice Kennedy observed in Rapanos that what constitutes a ``significant nexus'' to the waters of the United States is not a solely scientific question and that it cannot be determined by environmental effects alone. See, e.g., 547 U.S. at 777- 78 (noting that although ``[s]cientific evidence indicates that wetlands play a critical role in controlling and filtering runoff . . . environmental concerns provide no reason to disregard limits in the statutory text'' (citations omitted)). This includes how Congress' use of the term ``navigable'' in the CWA and how the policies embodied in section 101(b) should inform this analysis. Justice Kennedy wrote that ``the Corps deems a [[Page 32242]] water a tributary if it feeds into a traditional navigable water (or a tributary thereof) and possesses an ordinary high-water mark,'' defined as a ``line on the shore established by the fluctuations of water and indicated by [certain] physical characteristics.'' Id. at 781. This ``may well provide a reasonable measure of whether specific minor tributaries bear a sufficient nexus with other regulated waters to constitute `navigable waters' under the Act. Yet the breadth of this standard--which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor volumes toward it--precludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood.'' Id. (emphasis added). The 2015 Rule, by contrast, asserts jurisdiction categorically over any tributary, including all ephemeral and intermittent streams that meet the rule's tributary definition, as well as all wetlands and other waters that are within certain specified distances from a broadly defined category of tributaries (e.g., all waters located within the 100-year floodplain of a category (1) through (5) ``jurisdictional by rule'' water and not more than 1,500 feet from the ordinary high water mark of such water). According to the rule, tributaries are characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark and eventually contribute flow (directly or indirectly) to a traditional navigable water, interstate water, or territorial sea that may be a considerable distance away. See 80 FR 37105. The 2015 Rule defined ``ordinary high water mark'' as ``that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.'' Id. at 37106. The 2015 Rule did not require any assessment of flow, including volume, duration, or frequency, when defining the ``waters of the United States.'' Instead, the 2015 Rule concluded that it was reasonable to presume that ``[t]hese physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary.'' Id. at 37105. The 2015 Rule thus covers ephemeral washes that flow only in response to infrequent precipitation events if they meet the definition of tributary. These results, particularly that adjacent waters, broadly defined, are categorically jurisdictional no matter how small or frequently flowing the tributary to which they are adjacent, is, at a minimum, in significant tension with Justice Kennedy's understanding of the term significant nexus as explained in Rapanos. See id. at 781-82 (``[I]n many cases wetlands adjacent to tributaries covered by [the Corps' 1986 tributary] standard might appear little more related to navigable-in- fact waters than were the isolated ponds held to fall beyond the Act's scope in SWANCC.''). The agencies are mindful that courts that have considered the merits of challenges to the 2015 Rule have similarly observed that the rule may conflict with Justice Kennedy's opinion in Rapanos, particularly the rule's definition of ``tributary.'' The District of North Dakota found that the definitions in the 2015 Rule raise ``precisely the concern Justice Kennedy had in Rapanos, and indeed the general definition of tributary [in the 2015 Rule] is strikingly similar'' to the standard for tributaries that concerned Justice Kennedy in Rapanos. North Dakota, 127 F. Supp. 3d at 1056. The Southern District of Georgia also found that the 2015 Rule's definition of ``tributary'' ``is similar to the one'' at issue in Rapanos, and that ``it carries with it the same concern that Justice Kennedy had there.'' Georgia, 2018 U.S. Dist. LEXIS 97223, at *17. Likewise, the Sixth Circuit stated in response to petitioners' ``claim that the Rule's treatment of tributaries, `adjacent waters,' and waters having a `significant nexus' to navigable waters is at odds with the Supreme Court's ruling in Rapanos'' that ``[e]ven assuming, for present purposes, as the parties do, that Justice Kennedy's opinion in Rapanos represents the best instruction on the permissible parameters of `waters of the United States' as used in the Clean Water Act, it is far from clear that the new Rule's distance limitations are harmonious with the instruction.'' In re EPA, 803 F.3d at 807 & n.3 (noting that ``[t]here are real questions regarding the collective meaning of the [Supreme] Court's fragmented opinions in Rapanos''). One example that illustrates this point is the ``seasonally ponded, abandoned gravel mining depressions'' specifically at issue in SWANCC, 531 U.S. at 164, which the Supreme Court determined were ``nonnavigable, isolated, intrastate waters,'' id. at 166-72, and not jurisdictional. These depressions are located within 4,000 feet of Poplar Creek, a tributary to the Fox River, and may have the ability to store runoff or contribute other ecological functions in the watershed. Thus, they would be subject to, and might satisfy, a significant nexus determination under the 2015 Rule's case-specific analysis. However, Justice Kennedy himself stated in Rapanos, which informed the significant nexus standard articulated in the rule, that, ``[b]ecause such a [significant] nexus was lacking with respect to isolated ponds, the [SWANCC] Court held the plain text of the statute did not permit'' the Corps to assert jurisdiction over them. 547 U.S. at 767. Other potential examples of the breadth of the significant nexus standard articulated in the 2015 Rule are provided below in the next section. 3. Concerns Regarding the 2015 Rule's Effect on the Scope of CWA Jurisdiction The agencies asserted in the preamble to the 2015 Rule that ``State, tribal, and local governments have well-defined and longstanding relationships with the Federal government in implementing CWA programs and these relationships are not altered by the final rule.'' 80 FR 37054. The agencies further noted that ``[c]ompared to the current regulations and historic practice of making jurisdictional determinations, the scope of jurisdictional waters will decrease'' under the 2015 Rule. Id. at 37101. When compared to more recent practice, however, the agencies determined that the 2015 Rule would result ``in an estimated increase between 2.84 and 4.65 percent in positive jurisdictional determinations annually.'' Id. The agencies thus concluded that the 2015 Rule would ``result in a small overall increase in positive jurisdiction determinations compared to those made under the Rapanos Guidance'' and that the ``net effect'' of the regulatory changes would ``be marginal at most.'' Brief for Respondents at 32-33 & n.6, In re EPA, No. 15-3571 (6th Cir. Jan. 13, 2017). Since publication of the final rule, the agencies have received information about the impact of these changes, including through filings in litigation against the 2015 Rule and comments received in response to the July 27, 2017 NPRM. After further analysis and reconsideration of how the 2015 Rule is likely to impact jurisdictional determinations, including how the data on those impacts relate to the specific regulatory changes made in the 2015 Rule, the agencies are now considering whether the definitional changes in the 2015 Rule would have a more substantial impact on the scope of [[Page 32243]] jurisdictional determinations made pursuant to the CWA than acknowledged in the analysis for the rule and would thus impact the balance between federal, state, tribal, and local government in a way that gives inadequate consideration to the overarching Congressional policy to ``recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution'' and ``to plan the development and use . . . of land and water resources. . . .'' 33 U.S.C. 1251(b). Between the agencies' ``historic'' (i.e., 1986 regulations) and ``recent'' practices of making jurisdictional determinations under the Rapanos Guidance, the Supreme Court held that the agencies' application of the 1986 regulation was overbroad in some important respects. See SWANCC, 531 U.S. at 174 (reversing and remanding the assertion of jurisdiction); Rapanos, 547 U.S. at 715 (vacating and remanding, for further analysis, the assertion of CWA jurisdiction). Throughout the rulemaking process for the 2015 Rule, the agencies stressed in public statements,\38\ fact sheets,\39\ blog posts,\40\ and before Congress \41\ that the rule would not significantly expand the jurisdictional reach of the CWA. Some commenters questioned the accuracy of these statements during the rulemaking process for the 2015 Rule and in response to the July 27, 2017 NPRM. The court in North Dakota questioned the scope of waters subject to the 2015 Rule, and based its preliminary injunction in principal part on those doubts, stating, for example, that ``the definition of tributary'' in the 2015 Rule ``includes vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term.'' 127 F. Supp. 3d at 1056; see also In re EPA, 803 F.3d at 807 (finding that ``it is far from clear that the new Rule's distance limitations are harmonious'' with Justice Kennedy's significant nexus test in Rapanos); Georgia, 2018 U.S. Dist. LEXIS 97223, at *17 (holding that the 2015 Rule's ``tributary'' definition ``is similar to the one invalidated in Rapanos, and it carries with it the same concern that Justice Kennedy had there''). --------------------------------------------------------------------------- \38\ Addressing farmers in Missouri in July 2014, then-EPA Administrator Gina McCarthy stated that no additional CWA permits would be required under the proposed 2015 Rule. See: http://www.farmfutures.com/story-epas-mccarthy-ditch-myths-waters-rule-8-114845 (``The bottom line with this proposal is that if you weren't supposed to get a permit before, you don't need to get one now.''). \39\ U.S. EPA. Facts About the Waters of the U.S. Proposal at 4 (July 1, 2014), available at https://www.regulations.gov/contentStreamer?documentId=EPA-HQ-OW-2011-0880-16357&attachmentNumber=38&contentType=pdf (``The proposed rule does not expand jurisdiction.''). \40\ U.S. EPA blog post entitled ``Setting the Record Straight on Waters of the US'' (June 30, 2014), available at https://blog.epa.gov/blog/2014/06/setting-the-record-straight-on-wous/ (``The proposed rule does not expand jurisdiction.''). \41\ In a hearing before the House Committee on Science, Space, and Technology entitled ``Navigating the Clean Water Act: Is Water Wet?'' (July 9, 2014), then-Deputy EPA Administrator Bob Perciasepe told the Committee that the agencies are not expanding the jurisdiction of the CWA. See https://science.house.gov/legislation/hearings/full-committee-hearing-navigating-clean-water-act-water-wet. --------------------------------------------------------------------------- Given the concerns raised by some commenters and the federal courts, the agencies have reviewed data previously relied upon to conclude that the 2015 Rule would have no or ``marginal at most'' impacts on jurisdictional determinations, Brief for Respondents at 32 n.6, In re EPA, No. 15-3571 (6th Cir. Jan. 13, 2017), and are reconsidering the validity of this conclusion. The agencies solicit comment on whether the agencies appropriately characterized or estimated the potential scope of CWA jurisdiction that could change under the 2015 Rule, including whether the documents supporting the 2015 Rule appropriately considered the data relevant to and were clear in that assessment. For example, the agencies relied upon an examination of the documents supporting the estimated 2.84 to 4.65 percent annual increase in positive approved jurisdictional determinations (AJDs) to conclude that the 2015 Rule would only ``result in a small overall increase in positive jurisdictional determinations compared to those made under the Rapanos Guidance.'' See Brief for Respondents at 32, In re EPA, No. 15- 3571 (6th Cir. Jan. 13, 2017). However, others have raised concerns that this information and other data show the 2015 Rule may have expanded jurisdiction more significantly, particularly with respect to so-called ``other waters'' that are not adjacent to navigable waters and their tributaries. In developing the 2015 Rule, the agencies examined records in the Corps' Operation and Maintenance Business Information Link, Regulatory Module (ORM2) database that documents jurisdictional determinations associated with various aquatic resource types, including an isolated waters category. ``The isolated waters category is used in the Corps' ORM2 database to represent intrastate, non-navigable waters; including wetlands, lakes, ponds, streams, and ditches, that lack a direct surface connection to other waterways. These waters are hereafter referred to as `ORM2 other waters.' '' \42\ To examine how assertion of jurisdiction could change under the 2015 Rule, the agencies reviewed ORM2 aquatic resource records from Fiscal Year (FY)13 and FY14 and placed them into three groups: Streams (ORM2 categories of traditionally navigable waters, relatively permanent waters, and non- relatively permanent waters), wetlands adjacent to the stream category group, and other waters. Of the 160,087 records for FY13 and FY14, streams represented 65 percent of the total records available, wetlands represented 29 percent, and other waters represented 6 percent. --------------------------------------------------------------------------- \42\ 2015 Rule Economic Analysis at 7. --------------------------------------------------------------------------- From this baseline, the agencies assumed that 100 percent of the records classified as streams would meet the jurisdictional tests established in the final rule, and 100 percent of the records classified as adjacent wetlands would meet the definition of adjacent in the final rule. These assumptions resulted in a relatively minor projected increase in positive jurisdictional determinations under the final rule for these categories: 99.3 to 100 percent for the streams category, and 98.9 to 100 percent for the wetlands category. The agencies also performed a detailed analysis of the other waters category to determine whether jurisdiction might change for those waters under the final rule. In total, ``these files represented over 782 individual waters in 32 states.'' \43\ --------------------------------------------------------------------------- \43\ 2015 Rule Economic Analysis at 9. --------------------------------------------------------------------------- Of the existing negative determinations for other waters, the agencies made the following estimates:17.1 percent of the negative jurisdictional determinations for other waters would become positive under the 2015 Rule because the aquatic resources would meet the new definition of adjacent waters. See 80 FR 37105. These waters fall within the 100-year floodplain and are within 1,500 feet of a stream included in the United States Geological Survey's (USGS) National Hydrography Dataset (NHD). 15.7 percent of the other waters could become jurisdictional under category (7) of the 2015 Rule following a significant nexus analysis. See id. at 37104-05. 1.7 percent of the other waters could become jurisdictional under category (8) of the 2015 Rule following a significant nexus analysis. See id. at 37105. In total, the agencies estimated that 34.5 percent of the other waters represented in the FY13 and FY14 ORM2 database could become jurisdictional under the 2015 Rule after [[Page 32244]] having been declared not jurisdictional under the existing regulations and agency guidance. Thus, while the agencies acknowledged in the 2015 Rule Economic Analysis that ``[f]ollowing the Supreme Court decisions in SWANCC (2001) and Rapanos (2006), the agencies no longer asserted CWA jurisdiction over isolated waters,'' the agencies estimated in the 2015 Rule Economic Analysis that 34.5 percent of the other waters category could become jurisdictional under the 2015 Rule.\44\ By way of comparison, a similar analysis of this category of other waters performed in support of the proposed rule in 2014 (using FY09 and FY10 data from the ORM2 database) estimated that 17 percent of the negative jurisdictional for other waters would become positive.\45\ --------------------------------------------------------------------------- \44\ 2015 Rule Economic Analysis at 5, 12. \45\ U.S. EPA and U.S. Army Corps of Engineers. Economic Analysis of Proposed Revised Definition of Waters of the United States at 12, Exhibit 3 (Mar. 2014) (Docket ID: EPA-HQ-OW-2011-0880- 0003), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-0003. --------------------------------------------------------------------------- While the Economic Analysis for the 2015 Rule estimated that 34.5 percent of negative jurisdictional determinations for other waters would become positive,\46\ the agencies nevertheless premised the 2015 Rule on assertions that the ``scope of jurisdiction in this rule is narrower than that under the existing regulation,'' the scope of jurisdiction in the rule would result ``in an estimated increase between 2.84 and 4.65 percent in positive jurisdictional determinations annually'' based on existing practice, and that such impacts would be ``small overall'' and ``marginal at most.'' See 80 FR 37054, 37101; Brief for Respondents at 32-33 & n.6, In re EPA, No. 15-3571 (6th Cir. Jan. 13, 2017). The agencies are examining these statements and how this data relates specifically to the regulatory changes made in the 2015 Rule (as opposed to those provisions which already subjected many streams and wetlands to CWA jurisdiction). The agencies request comment on whether the projected increase for this category is most relevant to measuring the impacts of the 2015 Rule, whether the public had ample notice of the doubling of projected positive jurisdiction over the other waters category from the proposed to final rule, and whether the final rule could expand overall CWA positive jurisdictional determinations by a material amount inconsistent with the findings and conclusions that justified the 2015 Rule. --------------------------------------------------------------------------- \46\ 2015 Rule Economic Analysis at 13, Figure 2. --------------------------------------------------------------------------- In particular, the agencies seek comment on the conclusions that were based on the method that estimated a 2.84 to 4.65 percent increase in overall jurisdiction, including the use of a method whereby the increase in assertion of jurisdiction in a particular category of waters (e.g., streams, wetlands, and other waters) was proportionally applied based on the raw number of records in a category relative to the total number of records across all categories in the ORM2 database, notwithstanding whether the regulatory changes in the 2015 Rule did not materially impact those other categories. For example, of the 160,087 records in the ORM2 database for FY13 and FY14, 103,591 were associated with the streams category, 46,781 were associated with the wetlands category, and 9,715 were related to the other waters category. Thus, although 34.5 percent of previously non-jurisdictional ``other waters'' would become jurisdictional under the 2015 Rule, the proportional method used in the 2015 Rule Economic Analysis resulted in only an estimated 2.09 percent increase in positive jurisdictional determinations for ``other waters'' relative to the total number of jurisdictional determinations considered.\47\ --------------------------------------------------------------------------- \47\ The following summarizes the methodology used to derive the low-end estimated increase in jurisdiction of 2.84 percent: Streams account for 103,591 of the 160,087 total records (64.709 percent of the total ORM2 records) and 100 percent of streams are assumed to be jurisdictional under the final rule compared to 99.3 percent under previous practice (100 percent minus 99.3 percent = 0.7 percent). The relative contribution of streams to the overall change in jurisdictional determinations is thus 64.709 percent multiplied by 0.7 percent for a total of 0.45 percent. Wetlands account for 46,781 of the 160,087 total records (29.222 percent of the total ORM2 records) and 100 percent of wetlands are assumed to be jurisdictional under the final rule compared to 98.9 percent under previous practice (100 percent minus 98.9 percent = 1.1 percent). The relative contribution of wetlands to the overall estimated change in jurisdictional determinations is thus 29.222 percent multiplied by 1.1 percent for a total of 0.32 percent. Other waters account for 9,715 of the 160,087 total records (6.069 percent of the total ORM2 records) and 34.5 percent of other waters are assumed to be jurisdictional under the final rule compared to 0.0 percent under previous practice (34.5 percent minus 0.0 percent = 34.5 percent). The relative contribution of other waters to the overall estimated change in jurisdictional determinations is thus 6.069 percent multiplied by 34.5 percent for a total of 2.09 percent. The agencies then added the relative contribution to the overall estimated change in jurisdictional determinations for each category of waters (i.e., 0.45 percent for streams, 0.32 percent for wetlands, and 2.09 percent for other waters) to get a total projected change in positive jurisdictional determinations of 2.86 percent. The differences between this calculation and the reported 2.84 percent in the 2015 Rule Economic Analysis may be the result of rounding error. --------------------------------------------------------------------------- In addition, the record for the 2015 Rule includes a 57-page document entitled ``Supporting Documentation: Analysis of Jurisdictional Determinations for Economic Analysis and Rule,'' \48\ along with an accompanying 3,695 page document of approved jurisdictional determination (AJD) forms.\49\ This contains the agencies' assessment conducted in April 2015 of almost two hundred previously performed AJDs to help the agencies better understand how waters might change jurisdictional status based on the distance limitations included in the final 2015 Rule for adjacent and case- specific waters (see 80 FR 37105), including where they might no longer be jurisdictional under the final rule. Certain examples included in the assessment suggest that the 2015 Rule could modify CWA jurisdiction over waters that were deemed not jurisdictional under the 1986 regulatory framework and Supreme Court precedent. The agencies request comment on whether the examples illustrate the concerns expressed by the recent court decisions discussed above that the 2015 Rule may have exceeded the significant nexus standard articulated by Justice Kennedy in the Rapanos opinion and concerns expressed by certain commenters that the 2015 Rule may have created additional regulatory uncertainty over waters that were previously thought beyond the scope of CWA jurisdiction. The examples are intended to be illustrative, and are not intended to attempt to quantify or reassess previous estimates of CWA jurisdiction, as the agencies are not aware of any map or dataset that accurately or with any precision portrays CWA jurisdiction at any point in the history of this complex regulatory program. --------------------------------------------------------------------------- \48\ U.S. EPA. Supporting Documentation: Analysis of Jurisdictional Determinations for Economic Analysis and Rule (Docket ID: EPA-HQ-OW-2011-0880-20877), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20877. \49\ U.S. EPA and U.S. Army Corps of Engineers. Supporting Documentation: Jurisdictional Determinations (Docket ID: EPA-HQ-OW- 2011-0880-20876), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20876. --------------------------------------------------------------------------- In the first example, a property in Chesapeake, Virginia, was reviewed by the Corps' Norfolk District in early January 2014 and again in March 2015 and was determined not to contain jurisdictional wetlands because the wetlands on the property lacked a hydrological surface connection of any duration, frequency, or volume of flow to other jurisdictional waters. The Corps noted that the wetlands ``appear to be dependent upon groundwater for hydrology, and have no surface connections'' to nearby tributaries, the closest one of which was approximately 80 feet from the wetland. The agencies [[Page 32245]] later stated that the wetland features ``would be jurisdictional under the new rule'' because they are ``within 100-feet of a tributary'' and would thus meet the rule's definition of ``neighboring'' and, in turn, ``adjacent.'' Further information regarding this AJD and property has been added to the docket for the NPRM and is identified as ``Case Study A--AJD Number NAO-2014-2269'' (see Support Document). In another example, the Corps' Buffalo District reviewed a small wetland approximately 583 feet away from the Johlin Ditch near Toledo, Ohio, which eventually leads north to Lake Erie. After conducting a field investigation in September 2014, the Corps determined that the wetlands were not jurisdictional because the ``wetlands are isolated and there is no surface water connections [sic] and the only potential jurisdiction would be the [Migratory Bird Rule],'' noting that the area previously would have been regulated under the Migratory Bird Rule prior to the Supreme Court's SWANCC decision. The agencies later stated that the wetlands would be jurisdictional under the 2015 Rule. Further information regarding this AJD and property has been added to the docket for the NPRM and is identified as ``Case Study B--AJD Number 2004-001914'' (see Support Document). In another example, the Corps' Memphis District reviewed a borrow pit on a property in Mississippi County, Missouri, and concluded that the borrow pit did not contain jurisdictional wetlands. The project area was described in the AJD as follows: The borrow pit has been abandoned for some time. Vegetation consists mainly of black willow (Salix nigra) and poison ivy (Toxicodendron radicans). A site visit was conducted on 8 December 2014. The borrow pit is bordered by agricultural land on three sides and County Road K on the western border. There are no surface water connections to other waters of the U.S. A sample was taken within the site and all three parameters for a wetland are present. The Soil Survey book for Cape Girardeau, Mississippi and Scott Counties Missouri, compiled in 1974 and 1975 from aerial photography indicates no drainage into or out of the project site. The area is an isolated wetland approximately 7.6 acres in size. The abandoned pit in this example was 2,184 feet from the nearest ``tributary,'' a feature that itself appears to be a ditch in an agricultural field. The wetlands in the borrow pit were determined by the Corps to be isolated and non-jurisdictional ``with no substantial nexus to interstate (or foreign) commerce'' and on the basis that ``prior to . . .`'SWANCC,' the review area would have been regulated based solely on the `Migratory Bird Rule.' '' A later review by the agencies, however, stated that these wetlands would be jurisdictional under the 2015 Rule. Further information regarding this property and associated AJD has been added to the docket for the NPRM and is identified as ``Case Study C--AJD Number MVM-2014-460'' (see Support Document). In another example, the Corps' New England District reviewed a ``mowed wet meadow within a mowed hayfield'' in Greensboro, Vermont, in August 2012 and concluded the site did not contain jurisdictional wetlands. The AJD described the wetlands as ``surrounded on all sides by similar upland,'' ``500'-985' away'' from the nearest jurisdictional waters, and ``isolated intrastate waters with no outlet, no hydrological connection to the Lamoille River, no nexus to interstate commerce, and no significant nexus to the Lamoille River (located about 1.7-1.8 miles southeast of the site).'' A later review by the agencies, however, stated the wetlands would be jurisdictional under the 2015 Rule. Further information regarding this property and associated AJD has been added to the docket for the NPRM and is identified as ``Case Study D--AJD Number NAE-2012-1813'' (see Support Document). In another example, the Corps' Chicago District completed AJD number LRC-2015-31 for wetlands in agricultural fields in Kane County, Illinois, in January 2015. AJD Number LRC-2015-31 was completed using two separate AJD forms: One form for the features at the project site that were determined to be jurisdictional according to the Rapanos Guidance (``positive AJD form'') and a second form for the features at the site that the Corps determined were not jurisdictional under the Rapanos Guidance (``negative AJD form''). Only the positive AJD form was included in the docket in Supporting Documentation entitled, ``Jurisdictional Determinations--Redacted.'' \50\ The negative AJD form is available on the Chicago District website.\51\ --------------------------------------------------------------------------- \50\ Id. at 2082-83. \51\ Available at: http://www.lrc.usace.army.mil/Portals/36/docs/regulatory/jd/lrcnjd02-2015.pdf (page 1 and 2). --------------------------------------------------------------------------- Using a field determination and desk determinations, the Corps found on the AJD form that there were ``no `waters of the U.S.' within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area.'' The Corps described the project area in the AJD form as follows: ``Wetland A is a 1.37 acre high quality closed depressional isolated wetland. Wetlands B and C (0.08 ac and 0.15 ac) are isolated wetlands that formed over a failed drain tile and are over 1,200 feet away from the closest jurisdictional waterway.'' The AJD also notes, ``Weland [sic] A and the area around Wetlands B and C were previously determined to be isolated in 2008. Wetland C is mapped as Prior Converted in a NRCS certified farmed wetland determination--other areas are mapped as not inventoried.'' Upon later reviewing the negative AJD, however, the agencies determined the wetlands would be ``now Yes JD'' under the 2015 Rule. Further information regarding this property and associated positive and negative AJDs has been added to the docket for the NPRM and is identified as ``Case Study E--AJD Number LRC-2015-31'' (see Support Document). In another example, the Corps' Pittsburgh District visited a property in Butler, Pennsylvania, in October 2014 and determined the site did not contain waters of the United States because the wetland was ``completely isolated and has no nexus to a TNW or interstate or foreign commerce.'' The Corps noted that the wetland would have been regulated based solely on the Migratory Bird Rule prior to the decision in SWANCC. Upon reviewing the AJD, the agencies later stated the wetland is ``[i]solated but would have flood storage function.'' The agencies' review notes that the wetland is 1,270 feet from the nearest relatively permanent water (RPW) or traditional navigable water (TNW). Given the wetland is within 4,000 feet of a tributary and the agencies have stated it possesses at least one of the nine functions relevant to the significant nexus evaluation, see 80 FR 37106 (i.e., retention and attenuation of flood waters), the wetland would be subject to a significant nexus evaluation under the 2015 Rule. It is unclear, however, whether the wetland and its flood storage function would contribute significantly to the chemical, physical, or biological integrity of the nearest category (1) through (3) water as required by the 2015 Rule to satisfy the significant nexus test. Further information regarding this property and associated AJD has been added to the docket for the NPRM and is identified as ``Case Study F--AJD Number LRP 2014-855'' (see Support Document). In addition to the projected increase in positive jurisdictional determinations and the above examples of expected JD changes, an examination of the documents supporting the estimated 2.84 to 4.65 percent annual increase in positive AJDs raises concerns that the 2015 Rule may have significantly expanded jurisdiction over tributaries in [[Page 32246]] certain States, particularly those in more arid parts of the country. As described previously, to assess how assertion of jurisdiction may change under the 2015 Rule, the agencies reviewed ORM2 aquatic resource records from FY13 and FY14 and placed the aquatic resources into three groups: Streams, wetlands adjacent to the stream category group, and other waters. With respect to the streams category, the agencies assumed that ``100 percent of the records classified as streams will meet the definition of tributary in the final rule,'' \52\ resulting in a relatively minor projected increase in positive jurisdictional determinations under the final rule for streams: 99.3 percent to 100 percent, or a 0.7 percent increase. --------------------------------------------------------------------------- \52\ 2015 Rule Economic Analysis at 8. --------------------------------------------------------------------------- However, the agencies have reexamined the 57-page ``Supporting Documentation: Analysis of Jurisdictional Determinations for Economic Analysis and Rule'' and have questions regarding the minor projected increase in positive jurisdictional determinations over streams in some states. An untitled table on page 46 of the supporting document lists an analysis of a subset of streams and the number of those streams estimated to be non-jurisdictional by State in the FY13-FY14 ORM2 records for the purpose of estimating stream mitigation costs associated with the 2015 Rule.\53\ --------------------------------------------------------------------------- \53\ The table includes all states except Hawaii. --------------------------------------------------------------------------- Investigating the percent of streams estimated to be non- jurisdictional on a State-by-State basis coupled with the 2015 Rule Economic Analysis's assumption that 100 percent of the stream jurisdictional determinations will be positive under the 2015 Rule could indicate that there may be a significant expansion of jurisdiction over tributaries in some States beyond current practice. For example, in the FY13-FY14 ORM2 records for Arizona, the table identifies 709 of 1,070 total streams (66.3 percent) were non- jurisdictional. For Arkansas, the table identifies 116 of 213 total streams (54.5 percent) as non-jurisdictional. In South Dakota, North Dakota, Nevada, New Mexico, and Wyoming, 8.5 percent, 9.2 percent, 13.2 percent, 16.7 percent, and 57.1 percent of streams in the FY13-FY14 ORM2 database, respectively, were identified in the table as non- jurisdictional. The agencies are concerned that because the 2015 Rule may assert jurisdiction over 100 percent of streams as the agencies assumed in the 2015 Rule Economic Analysis, certain States, particularly those in the arid West, would see significant expansions of federal jurisdiction over streams. The agencies solicit comment on whether such expansions conflict with the assumptions underlying and statements justifying the 2015 Rule, and if such expansions were consistent with the policy goals of section 101(b) of the CWA. Several questions were raised by commenters regarding whether the 2015 Rule expanded CWA jurisdiction over intermittent and ephemeral streams, and whether the agencies accurately identified that potential expansion in the development of the 2015 Rule. Several commenters, for example, suggested that the amount of jurisdictional river and stream miles in the United States may increase from approximately 3.5 million miles to more than 8 million miles in response to the per se jurisdictional treatment of millions of miles of ephemeral and intermittent streams under the tributary definition.\54\ To frame their analysis, those commenters compared river and stream miles reported in recent CWA section 305(b) reports submitted by States to EPA, and transmitted by EPA to Congress, to the river and stream miles depicted in maps developed by the agencies and the USGS prior to the 2015 Rule's proposal. --------------------------------------------------------------------------- \54\ See comments submitted by Arizona Department of Environmental Quality et al. (Nov. 14, 2014) (Docket ID: EPA-HQ-OW- 2011-0880-15096), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15096; comments submitted by CropLife America (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-14630), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-14630; comments submitted by American Foundry Society (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-15148), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15148; comments submitted by U.S. Chamber of Commerce et al. (Nov. 12, 2014) (Docket ID: EPA-HQ-OW-2011-0880-14115), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-14115. --------------------------------------------------------------------------- Section 305(b)(1)(A) of the CWA directs each state to ``prepare and submit to the Administrator . . . biennially . . . a report which shall include . . . a description of the water quality of all navigable waters in such State during the preceding year. . . .'' 33 U.S.C. 1315(b)(1)(A). Section 305(b)(2) additionally directs the Administrator to ``transmit such State reports, together with an analysis thereof, to Congress . . . .'' Id. at 1315(b)(2). Over the years, those reports to Congress have identified between 3.5 and 3.7 million river and stream miles nationwide (see Support Document). The agencies previously observed that this analysis may not be precise, because of concerns regarding the baseline for comparison and assumptions regarding which intermittent and ephemeral streams may be covered under the 2015 Rule.\55\ --------------------------------------------------------------------------- \55\ See U.S. EPA and U.S. Army Corps of Engineers. Clean Water Rule Response to Comments--Topic 8: Tributaries at 88-89, available at https://www.epa.gov/sites/production/files/2015-06/documents/cwr_response_to_comments_8_tributaries.pdf. --------------------------------------------------------------------------- The agencies are not aware of any national, regional, or state- level map that identifies all ``waters of the United States'' and acknowledge that there are limitations associated with existing datasets. The agencies, however, developed a series of draft maps using the NHD identifying ``rivers and streams and tributaries and other water bodies'' in each State, which then-EPA Administrator Gina McCarthy mentioned at a March 27, 2014 hearing before the U.S. House of Representatives Appropriations Committee Subcommittee on Interior, Environment, and Related Agencies.\56\ The EPA provided a copy of those draft maps to Congress on July 28, 2014,\57\ and they remain available to the public on the U.S. House of Representatives Committee on Science, Space and Technology website.\58\ The draft maps identify a total of 8,086,742 river and stream miles across the 50 States (see Support Document). --------------------------------------------------------------------------- \56\ EPA Administrator Gina McCarthy testimony before the U.S. House of Representatives Appropriations Committee Subcommittee on Interior, Environment, and Related Agencies (March 27, 2014), available at https://www.c-span.org/video/?318438-1/fy2015-epa-budget. \57\ Letter from Nancy Stoner, Acting Asst. Administrator, U.S. EPA Office of Water, to Rep. Lamar Smith, Chairman, U.S. House of Representatives Committee on Science, Space, and Technology (July 28, 2014), available at https://science.house.gov/sites/republicans.science.house.gov/files/documents/epa_releases_maps_letter.pdf. \58\ EPA State and National Maps of Waters and Wetlands, available at https://science.house.gov/epa-state-and-national-maps-waters-and-wetlands. --------------------------------------------------------------------------- Given the significant differences between the CWA section 305(b) reports and the draft NHD maps submitted to Congress, and the possibility that each may represent potential estimates for the relative jurisdictional scope of the 1986 regulations and practice compared to the 2015 Rule, several States have questioned whether the proposed definition of ``tributary'' for the 2015 Rule would expand federal jurisdiction over State water resources. Eight State departments of environmental quality, for example, stated in joint comments that ``comparing the `waters of the United States' reported by States to recent USGS maps released by the EPA shows a 131% increase in federal waters.'' \59\ Comments filed by the State [[Page 32247]] of Kansas on the proposed rule raised similar concerns and focused on the inclusion of ephemeral streams in the proposed definition of tributary: ``In Kansas we have identified approximately 31,000 miles of perennial and intermittent waters that have been treated as WOTUS for several decades. . . . As per the preamble to the Rule and EPA/ACOE statements, the additional 133,000 miles [of ephemeral streams] would result in a 460% increase in the number of Kansas waters presumed to be jurisdictional under the Rule.'' \60\ Kansas added that the State does ``not believe ephemeral waters have always been considered de facto tributaries for CWA jurisdictional purposes.'' \61\ Referencing a statement made by then-EPA Administrator McCarthy in which she stated, ``[u]nfortunately, 60 percent of our nation's streams and millions of acres of wetlands currently lack clear protection from pollution under the Clean Water Act,'' \62\ Kansas noted that ``if those 60 percent that `lack clear protection' are brought under the umbrella of the CWA, [there will be] a significantly larger expansion than estimated in the economic analysis for the Rule.'' \63\ --------------------------------------------------------------------------- \59\ See comments submitted by Alabama Dept. of Environ. Mgmt., Arizona Dept. of Environ. Quality, Indiana Dept. of Environ. Mgmt., Kansas Dept. of Health and Environ., Louisiana Dept. of Environ. Quality, Mississippi Dept. of Environ. Quality, Oklahoma Dept. of Environ. Quality, and Wyoming Dept. of Environ. Quality (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-15096), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15096. \60\ See comments submitted by the State of Kansas at Appendix A (Oct. 23, 2014) (Docket ID: EPA-HQ-OW-2011-0880-16636), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-16636. \61\ Id. (emphasis in original). \62\ See ``Clean Water Drives Economic Growth'' by Gina McCarthy (Sept. 29, 2014), available at http://www.huffingtonpost.com/gina-mccarthy/clean-water-act_b_5900734.html. \63\ See supra note 60. --------------------------------------------------------------------------- The agencies in 2015 suggested that a feature that flows very infrequently would not form the physical indicators required to meet the 2015 Rule's definitions of ``ordinary high water mark'' and ``tributary.'' \64\ In response to comments questioning the agencies' characterization of the change in scope of jurisdiction under the 2015 Rule, the agencies stated that the 2015 Rule was narrower in scope than the existing regulations and historical practice, and reiterated that an increase of approximately 3 percent represented the agencies' estimate of the increased positive jurisdictional determinations compared to recent practice.\65\ In the administrative record for the 2015 Rule and in a brief filed with the Sixth Circuit (based on that record), the agencies asserted that the definition of ``waters of the United States'' historically has included ephemeral streams and that some federal court decisions after SWANCC upheld assertions of CWA jurisdiction over surface waters that have a hydrologic connection to and that form part of the tributary system of a traditional navigable water, including intermittent or ephemeral streams. 80 FR 37079; Brief for Respondents at 11, 62-64, In re EPA, No. 15-3571 (6th Cir. Jan. 13, 2017).\66\ The agencies are requesting comment on whether these responses to these issues are adequate. While some ephemeral streams may have been jurisdictional after a case-specific analysis pursuant to the Rapanos Guidance,\67\ and while challenges to some of those determinations have been rejected by courts, the agencies are requesting public comment on whether these prior conclusions and assertions were correct. --------------------------------------------------------------------------- \64\ See, e.g., U.S. EPA and U.S. Army Corps of Engineers. Clean Water Rule Response to Comments--Topic 11: Cost/Benefits (Volume 2) at 223, available at https://www.epa.gov/sites/production/files/2015-06/documents/cwr_response_to_comments_11_econ_vol2.pdf. \65\ See, e.g., id. at 10-13, 17. \66\ See also U.S. EPA and Department of the Army. Technical Support Document for the Clean Water Rule: Definition of Waters of the United States at 28 (May 27, 2015), available at https://www.epa.gov/sites/production/files/2015-05/documents/technical_support_document_for_the_clean_water_rule_1.pdf. \67\ See Rapanos Guidance at 7 (`` `[R]elatively permanent' waters do not include ephemeral tributaries which flow only in response to precipitation and intermittent streams which do not typically flow year-round or have continuous flow at least seasonally. However, CWA jurisdiction over these waters will be evaluated under the significant nexus standard.''). --------------------------------------------------------------------------- Given the concerns expressed by three federal courts regarding the potential scope of the 2015 Rule and comments raised during the 2015 rulemaking and submitted in response to the July 27, 2017 NPRM, the agencies are re-evaluating the 2015 Rule and the potential change in jurisdiction. While the agencies are not aware of any data that estimates with any reasonable certainty or predictability the exact baseline miles and area of waters covered by the 1986 regulations and preexisting agency practice or data that accurately forecasts of the additional waters subject to jurisdiction under the 2015 Rule, the agencies are examining whether the data and estimates used to support the 2015 Rule's conclusions that the rule would be narrower than preexisting regulations may not have supported those conclusions, and instead the 2015 Rule may have had more than a marginal impact on CWA jurisdictional determinations and may impact well-defined and longstanding relationships between the federal and State governments in implementing CWA programs. The agencies seek comment on this and other data that may be relevant to a proposed finding, and whether such a change in finding would, either independently or in conjunction with other factors, support the agencies' proposal to repeal the 2015 Rule. 4. Potential Impact on Federal-State Balance When promulgating the 2015 Rule, the agencies concluded and prominently stated that ``State, tribal, and local governments have well-defined and longstanding relationships with the Federal government in implementing CWA programs and these relationships are not altered by the final rule,'' 80 FR 37054. Indeed, it was ``the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this Act.'' 33 U.S.C. 1251(b). In response to the agencies' July 27, 2017 NPRM, some commenters have suggested that the 2015 Rule--including, inter alia, elements of the final rule that commenters were not able to address during the comment period--may not effectively reflect the specific policy that Congress articulated in CWA section 101(b). The agencies are considering whether and are proposing to conclude that the 2015 Rule did not draw the appropriate line, for purposes of CWA jurisdiction, between waters subject to federal and State regulation, on the one hand, and waters subject to state regulation only, on the other. In comments submitted to the agencies in response to the July 27, 2017 NPRM, many States, representatives of entities within many sectors of the regulated community, and numerous other commenters expressed concerns that the 2015 Rule permits federal encroachment upon the States' traditional and primary authority over land and water resources. Such commenters cite the Supreme Court's recognition that ``Congress chose to `recognize, preserve, and protect the primary responsibilities and rights of states . . . to plan the development and use' '' of those resources in enacting the CWA rather than ``readjust the federal-state balance,'' SWANCC, 531 U.S. at 174 (quoting CWA section 101(b), 33 U.S.C. 1251(b)). [[Page 32248]] Under the 2015 Rule, commenters have observed that the agencies asserted categorical jurisdiction over water features that may be wholly intrastate and physically remote from navigable-in-fact waters. Such waters ``adjacent'' to jurisdictional waters are deemed to meet the definition of ``waters of the United States'' under the 2015 Rule, so long as any portion of the water is located within 100 feet of the ordinary high water mark of a category (1) through (5) ``jurisdictional by rule'' water; within the 100-year floodplain of a category (1) through (5) ``jurisdictional by rule'' water but not more than 1,500 feet from the ordinary high water mark of such water; or within 1,500 feet of the high tide line of a primary water or the ordinary high water mark of the Great Lakes. 80 FR 37085-86, 37105. The agencies also established case-specific jurisdiction over water features generally at a greater distance, including waters (including seasonal or ephemeral waters) located within 4,000 feet of the high tide line or ordinary high water mark of a category (1) through (5) water. See 80 FR 37105. For such waters, ``the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in paragraphs (a)(1) through (3) . . . or within 4,000 feet of the high tide line or ordinary high water mark'' of a category (1) through (5) water.'' Id. The agencies are considering whether the 2015 Rule's coverage of waters based, in part, on their location within the 100-year floodplain of a jurisdictional water is consistent with the policy articulated in CWA section 101(b) that States should maintain primary responsibility over land and water resources. The agencies received many comments on the proposal to the 2015 Rule indicating that the potential breadth of this standard could conflict with other federal, State or local laws that regulate development within floodplains.\68\ In particular, certain local governments expressed concern that the floodplain element of the rule could conflict with local floodplain ordinances or otherwise complicate local land use planning and development.\69\ Though the agencies added a distance-based threshold to limit the use of the 100-year floodplain as a basis for categorical CWA jurisdiction with respect to adjacent waters, the agencies are concerned that the Rule's use of this standard, including its use as a basis for requiring a case-specific significant nexus determination, could nonetheless interfere with traditional state and local police power, as suggested by some of the comments received in 2014.\70\ Comments received in response to the July 27, 2017 NPRM also raise concerns about the use of the 100-year floodplain. Specifically, commenters expressed concern about the absence of suitable maps and about the accuracy of existing maps. Given these concerns, the agencies request comment on whether the 2015 Rule's use of the 100-year floodplain as a factor to establish jurisdiction over adjacent waters and case-specific waters interferes with States' primary responsibilities over the planning and development of land and water resources in conflict with CWA section 101(b). The agencies also seek comment on to what extent the 100-year floodplain component of the 2015 Rule conflicts with other federal regulatory programs, and whether such a conflict impacts State and local governments. --------------------------------------------------------------------------- \68\ See, e.g., comments submitted by City of Chesapeake (Sept. 9, 2014) (Docket ID: EPA-HQ-OW-2011-0880-9615), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-9615. \69\ See, e.g., comments submitted by National Association of Counties (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-15081), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15081. \70\ See, e.g., comments submitted by Georgia Municipal Association (Nov. 13, 2014) (Docket ID: EPA-HQ-OW-2011-0880-14527), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-14527; comments submitted by City of St. Petersburg (Nov. 13, 2014) (Docket ID: EPA-HQ-OW-2011-0880-18897), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-18897. --------------------------------------------------------------------------- The agencies noted in 2015 ``that the vast majority of the nation's water features are located within 4,000 feet of a covered tributary, traditional navigable water, interstate water, or territorial sea.'' \71\ The agencies' broadening of certain key concepts and terms relative to the prior regulatory regime means that the agencies can potentially review the ``vast majority'' of water features in the country under the 2015 Rule, unless those features have been excluded from the definition. Similar concern was raised in response to the July 27, 2017 NPRM, for example, by the Missouri Department of Natural Resources and Department of Agriculture.\72\ The agencies seek comment on that analysis and whether the 2015 Rule readjusts the federal-state balance in a manner contrary to the congressionally determined policy in CWA section 101(b). Indeed, when issuing a preliminary injunction of the 2015 Rule, the Southern District of Georgia held that ``The [2015] WOTUS Rule asserts jurisdiction over remote and intermittent waters without evidence that they have a nexus with any navigable-in-fact waters.'' Georgia, 2018 U.S. Dist. LEXIS 97223, at *19. The agencies thus solicit comment on whether the definitions in the 2015 Rule would subject wholly intrastate or physically remote waters or wetlands to CWA jurisdiction, either categorically or on a case-by-case basis, and request information about the number and scope of such waters of which commenters may be aware.\73\ --------------------------------------------------------------------------- \71\ 2015 Rule Economic Analysis at 11. \72\ See comments submitted by the Missouri Department of Natural Resources and Department of Agriculture (Sept. 26, 2017) (Docket ID: EPA-HQ-OW-2017-0203-13869), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-13869 (``The broad definition of tributary and the inclusion of a three-quarter mile buffer around every tributary and impoundment, would have cast a very broad jurisdictional umbrella over the state; requiring significant nexus determinations on all but a very few number of waters.''). \73\ This includes whether the 2015 Rule is supported by a ``clear and manifest'' statement under the CWA to change the scope of traditional state regulatory authority. See BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994); see also Bond v. United States, 134 S. Ct. 2077, 2089-90 (2014); SWANCC, 531 U.S. at 172-74. --------------------------------------------------------------------------- Further, the agencies solicit comment about whether these, or any other, aspects of the 2015 Rule as finalized would, as either a de facto or de jure matter, alter federal-state relationships in the implementation of CWA programs and State regulation of State waters, and whether the 2015 Rule appropriately implements the Congressional policy of recognizing, preserving, and protecting the primary rights of states to plan the development and use of land and water resources. Because such findings would, if adopted by the agencies, negate a key finding underpinning the 2015 Rule, the agencies request comment on whether to repeal the 2015 Rule on this basis. 5. Additional Bases for Repealing the 2015 Rule That the Agencies Are Considering In addition to our proposed conclusions that the 2015 Rule failed to provide regulatory certainty and that it exceeded the agencies' authority under the CWA, the agencies are also considering several other supplemental bases for repealing the 2015 Rule. These are discussed below along with requests for public comment. Some commenters have suggested that the 2015 Rule may exceed Congress' power under the Commerce Clause. The Supreme Court in SWANCC found that, in enacting the CWA, Congress had in mind as its authority ``its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.'' 531 U.S. at 172. The Court went on to construe the CWA to avoid the significant constitutional [[Page 32249]] questions raised by the agencies' assertion that the `` `Migratory Bird Rule' falls within Congress' power to regulate intrastate activities that `substantially affect' interstate commerce.'' Id. at 173. The agencies are evaluating the concerns, reflected in certain comments received by the agencies, that many features that are categorically jurisdictional under the 2015 Rule, such as wetlands that fall within the distance thresholds of the definition of ``neighboring,'' test the limits of the scope of the Commerce Clause because they may not have the requisite effect on the channels of interstate commerce.\74\ --------------------------------------------------------------------------- \74\ Though the agencies have previously said that the 2015 Rule is consistent with the Commerce Clause and the CWA, the agencies are in the process of considering whether it is more appropriate to draw a jurisdictional line that ensures that the agencies regulate well within our constitutional and statutory bounds. --------------------------------------------------------------------------- For example, according to certain litigants challenging the 2015 Rule, the ``seasonally ponded, abandoned gravel mining depressions'' specifically at issue in SWANCC, 531 U.S. at 164, which the Supreme Court determined were ``nonnavigable, isolated, intrastate waters,'' id. at 166-72, might be subject to case-specific jurisdiction under the 2015 Rule. The depressions appear to be located within 4,000 feet of Poplar Creek, a tributary to the Fox River, and may have the ability to store runoff or contribute other ecological functions in the watershed. The agencies request comment, including additional information, on whether the water features at issue in SWANCC or other similar water features could be deemed jurisdictional under the 2015 Rule, and whether such a determination is consistent with or otherwise well- within the agencies' statutory authority, would be unreasonable or go beyond the scope of the CWA, and is consistent with Justice Kennedy's significant nexus test expounded in Rapanos wherein he stated, ``[b]ecause such a [significant] nexus was lacking with respect to isolated ponds, the [SWANCC] Court held that the plain text of the statute did not permit'' the Corps to assert jurisdiction over them. See 547 U.S. at 767. The examples identified in Section II.C.3 above raise similar issues. The abandoned borrow pit, for example, discussed in Case Study C--AJD Number MVM-2014-460, was determined by the Corps in December 2014 to be an isolated water located 2,184 feet from a relatively permanent body of water ``with no substantial nexus to interstate (or foreign) commerce'' (see Support Document), yet the agencies later stated the feature would be jurisdictional under the 2015 Rule. In addition, the wetlands at issue in Case Study B--AJD Number 2004-001914 (see Support Document) described above in Section II.C.3 were located 583 feet from the Johlin Ditch outside Toledo, Ohio, situated east of an existing medical building and west of an agricultural area. The wetlands were determined by the Corps to be isolated, lacking a surface connection to a water of the United States and a substantial nexus to interstate commerce. Those wetlands, however, were later stated by the agencies to be subject to CWA jurisdiction under the 2015 Rule. The agencies therefore solicit comment on whether the 2015 Rule would cover such wetlands and, if so, whether that would exceed the CWA's statutory limits. See, e.g., SWANCC, 531 U.S. at 171-72, 174 (``[W]e find nothing approaching a clear statement from Congress that it intended Sec. 404(a) to reach an abandoned sand and gravel pit'' that is ``isolated.''). Interested parties are encouraged to provide comment on whether the 2015 Rule is consistent with the statutory text of the CWA and relevant Supreme Court precedent, the limits of federal power under the Commerce Clause as specifically exercised by Congress in enacting the CWA, and any applicable legal requirements that pertain to the scope of the agencies' authority to define the term ``waters of the United States.'' The agencies also solicit comment on any other issues that may be relevant to the agencies' consideration of whether to repeal the 2015 Rule, such as whether any potential procedural deficiencies limited effective public participation in the development of the 2015 Rule.\75\ --------------------------------------------------------------------------- \75\ See, e.g., Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (DC Cir. 1983). --------------------------------------------------------------------------- D. The Agencies' Next Steps In defining the term ``waters of the United States'' under the CWA, Congress gave the agencies broad discretion to articulate reasonable limits on the meaning of that term, consistent with the Act's text and its policies as set forth in CWA section 101. In light of the substantial litigation risk regarding waters covered under the 2015 Rule, and based on the agencies' experience and expertise in applying the CWA, the agencies propose to repeal the 2015 Rule and put in place the prior regulation. This is based on the concerns articulated above and the agencies' concern that there may be significant disruption to the implementation of the Act and to the public, including regulated entities, if the 2015 Rule were vacated in part. The agencies therefore propose to exercise their discretion and policy judgment by repealing the 2015 Rule permanently and in its entirety because the agencies believe that this approach is the most appropriate means to remedy the deficiencies of the 2015 Rule identified above, address the litigation risk surrounding the 2015 Rule, and restore a regulatory process that has been in place for years. The agencies have considered other alternatives that could have the effect of addressing some of the potential deficiencies identified, including proposing revisions to specific elements of the 2015 Rule, issuing revised implementation guidance and implementation manuals, and proposing a further change to the February 6, 2020 applicability date of the 2015 Rule. The agencies are soliciting comments on whether any of these alternative approaches would fully address and ameliorate potential deficiencies in and litigation risk associated with the 2015 Rule. Consistent with the President's Executive Order, the agencies are also evaluating options for revising the definition of ``waters of the United States.'' The agencies are proposing to permanently repeal the 2015 Rule at this time, and are taking comment on whether this proposal is the best and most efficient approach to address the potential deficiencies identified in this notice and to provide the predictability and regulatory certainty that alternative approaches may not provide. E. Effect of Repeal The 2015 Rule amended longstanding regulations contained in portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401 by revising, removing, and re-designating certain paragraphs and definitions in those regulations. In this action, the agencies would repeal the 2015 Rule and restore the regulations in existence immediately prior to the 2015 Rule. As such, if the agencies finalize this proposal and repeal the 2015 Rule and thus repeal those amendments, the regulatory definitions of ``waters of the United States'' in effect would be those portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401 as they existed immediately prior to the 2015 Rule's amendments. See, e.g., API v. EPA, 883 F.3d 918, 923 (DC Cir. 2018) (regulatory criterion in effect immediately before enactment of criterion that was vacated by the court ``replaces the now-vacated'' criterion). Thus, if the agencies [[Page 32250]] determine that repeal of the 2015 Rule is appropriate, the agencies concurrently would recodify the prior regulation in the CFR, which would not have the effect of creating a regulatory vacuum, and the agencies need not consider the potential consequences of such a regulatory vacuum in light of this. If this proposed rule is finalized, the agencies propose to apply the prior definition until a new definition of CWA jurisdiction is finalized. The current regulatory scheme for determining CWA jurisdiction is ``familiar, if imperfect,'' In re EPA, 803 F.3d at 808, and the agencies and regulated public have significant experience operating under the longstanding regulations that were replaced by the 2015 Rule. The agencies would continue to implement those regulations, as they have for many years, consistent with Supreme Court decisions and practice, other case law interpreting the rule, and informed by agency guidance documents. Apart from a roughly six-week period when the 2015 Rule was in effect in 37 States, the agencies have continued to implement the preexisting regulatory definitions as a result of the court orders discussed in Section I.B. above, as well as the final rule adding an applicability date to the 2015 Rule (83 FR 5200, Feb. 6, 2018). While the agencies acknowledge that the 1986 and 1988 regulations have been criticized and their application has been narrowed by various legal decisions, including SWANCC and Rapanos, the longstanding nature of the regulatory framework and its track record of implementation makes it preferable until the agencies propose and finalize a replacement definition. The agencies believe that, until a new definition is completed, it is important to retain the status quo that has been implemented for many years rather than the 2015 Rule, which has been and continues to be mired in litigation. In other words, restoration of the prior regulatory text in the CFR, interpreted in a manner consistent with Supreme Court decisions, and informed by applicable agency guidance documents and longstanding practice, will ensure that the scope of CWA jurisdiction will be administered in the same manner as it is now; as it was during the Sixth Circuit's lengthy, nationwide stay of the 2015 Rule; and as it was for many years prior to the promulgation of the 2015 Rule. To be clear, the agencies are not proposing a new definition of ``waters of the United States'' in this specific rulemaking separate from the definition that existed immediately prior to the 2015 Rule. The agencies also are not proposing to take this action in order to fill a regulatory gap because no such gap exists today. See 83 FR 5200, 5204. Rather, the agencies are solely proposing to repeal the 2015 amendments to the above-referenced portions of the CFR and recodify the prior regulatory text as it existed immediately prior to the 2015 Rule's amendments. III. Minimal Reliance Interests Implicated by a Repeal of the 2015 Rule More than 30,000 AJDs of individual aquatic resources and other features have been issued since August 28, 2015, the effective date of the 2015 Rule. However, less than two percent of the AJDs of individual aquatic resources were issued under the 2015 Rule provisions in the six weeks the rule was in effect in a portion of the country.\76\ The 2015 Rule was in effect in only 37 States for about six weeks between the 2015 Rule's effective date and the Sixth Circuit's October 9, 2015 nationwide stay order, see In re EPA, 803 F.3d 804 (6th Cir. 2015), and only 540 AJDs for aquatic resources and other features were issued during that short window of time. The remainder of the AJDs issued since August 28, 2015, were issued under the regulations defining the term ``waters of the United States'' that were in effect immediately before the effective date of the 2015 Rule. --------------------------------------------------------------------------- \76\ See Clean Water Act Approved Jurisdictional Determinations, available at https://watersgeo.epa.gov/cwa/CWA-JDs, as of May 9, 2018. The 2015 Rule was enjoined in 13 States by the U.S. District Court for the District of North Dakota and has never gone into effect in those States. --------------------------------------------------------------------------- ``Sudden and unexplained change, . . . or change that does not take account of legitimate reliance on prior [agency] interpretation, . . . may be arbitrary, capricious [or] an abuse of discretion[,] [b]ut if these pitfalls are avoided, change is not invalidating[.]'' Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996) (internal quotation marks and citations omitted). Therefore, in proposing to repeal the 2015 Rule, the agencies are considering any interests that may have developed in reliance on the 2015 Rule, as well as the potential harm to such reliance interests from repealing the Rule against the benefits. The agencies solicit comment on whether the AJDs that were issued under the 2015 Rule's brief tenure (and any ensuing reliance interests that were developed) would be adversely affected by the Rule's repeal. If the potential for such harm exists, the agencies also solicit comment on whether those harms outweigh the potential benefits of repealing the 2015 Rule. In staying the 2015 Rule nationwide, the Sixth Circuit found no indication ``that the integrity of the nation's waters will suffer imminent injury if the [2015 Rule] is not immediately implemented and enforced.'' In re EPA, 803 F.3d at 808. The Sixth Circuit wrote that the ``burden--potentially visited nationwide on governmental bodies, state and federal, as well as private parties--and the impact on the public in general, implicated by the Rule's effective redrawing of jurisdictional lines over certain of the nation's waters'' was of ``greater concern.'' Id. As a result, the Sixth Circuit held that ``the sheer breadth of the ripple effects caused by the Rule's definitional changes counsels strongly in favor of maintaining the status quo for the time being.'' Id. For the reasons expounded in this notice and the NPRM, the agencies believe that any potential adverse reliance interests are outweighed by the benefits of the agencies' proposed action. The agencies therefore propose to repeal the 2015 Rule and request comment on that proposal. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review; Executive Order 13563: Improving Regulation and Regulatory Review This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review prior to the NPRM and again prior to issuance of the SNPRM. Any changes made in response to OMB recommendations have been documented in the docket. While economic analyses are 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 action. See, e.g., NAHB, 682 F.3d at 1039-40 (noting that the quality of an agency's economic analysis can be tested under the APA if the ``agency decides to rely on a cost-benefit analysis as part of its rulemaking''). B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Cost This rule is expected to be an Executive Order 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the economic analysis that was published together with the NPRM. [[Page 32251]] C. Paperwork Reduction Act This proposed rule does not impose any new information collection burdens under the Paperwork Reduction Act. D. Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. The proposed repeal of the 2015 Rule is a deregulatory action that would effectively maintain the status quo as the agencies are currently implementing it, and avoid the imposition of potentially significant adverse economic impacts on small entities in the future. Details on the estimated cost savings of this proposed rule can be found in the economic analysis that was published together with the NPRM. Accordingly, after considering the potential economic impacts of the proposed repeal action on small entities, we certify that this proposed action will not have a significant economic impact on a substantial number of small entities. E. Unfunded Mandates Reform Act Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), signed into law on March 22, 1995, an agency must prepare a budgetary impact statement to accompany any proposed or final rule that includes a federal mandate that may result in estimated cost to state, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under section 205 of the UMRA, the agency must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires the agency to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. This proposed action does not contain any unfunded mandate as described in the UMRA, and does not significantly or uniquely affect small governments. The definition of ``waters of the United States'' applies broadly to CWA programs. The proposed action imposes no enforceable duty on any state, local, or tribal governments, or the private sector, and does not contain regulatory requirements that significantly or uniquely affect small governments. F. Executive Order 13132: Federalism Executive Order 13132 requires the agencies to develop an accountable process to ensure ``meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.'' ``Policies that have federalism implication'' is defined in the Executive Order to include regulations that have ``substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.'' Under Executive Order 13132, the agencies may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by state and local government, or the agencies consult with state and local officials early in the process of developing the proposed regulation. The agencies also may not issue a regulation that has federalism implications and that preempts state law unless the agencies consult with state and local officials early in the process of developing the proposed regulation. This proposed rule will not have substantial direct effects on the states, on the relationship between the national government and states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely proposes to repeal a rule that was in effect in only a portion of the country for a short period of time, and does not alter the relationship or the distribution of power and responsibilities established in the CWA. The agencies are proposing to repeal the 2015 Rule in part because the 2015 Rule may have impermissibly and materially affected the states and the distribution of power and responsibilities among the various levels of government and therefore likely should have been characterized as having federalism implications when promulgated in 2015. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed rule because it returns the federal-state relationship to the status quo. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled ``Consultation and Coordination with Indian Tribal Governments'' (65 FR 67249, Nov. 9, 2000), requires the agencies to develop an accountable process to ensure ``meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.'' This proposed rule does not have tribal implications, as specified in Executive Order 13175. This proposed rule will not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, because it merely preserves the status quo currently in effect today and in effect immediately before promulgation of the 2015 Rule. Thus, Executive Order 13175 does not apply to this proposed rule. Consistent with E.O. 13175, however, the agencies have and will continue to consult with tribal officials, as appropriate, as part of any future rulemaking to define ``waters of the United States.'' H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045, ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, Apr. 23, 1997), applies to any rule that: (1) Is determined to be ``economically significant'' as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that an agency has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency. This proposed rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks. I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. [[Page 32252]] J. National Technology Transfer and Advancement Act Section 12 of the National Technology Transfer and Advancement Act of 1995 requires federal agencies to evaluate existing technical standards when developing a new regulation. The proposed rule does not involve technical standards. K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations This proposed rule maintains the legal status quo. The agencies therefore believe that this action does not have disproportionately high and adverse human health or environmental effects on minority, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, Feb. 16, 1994). List of Subjects 33 CFR Part 328 Environmental protection, Administrative practice and procedure, Navigation (water), Water pollution control, Waterways. 40 CFR Part 110 Environmental protection, Oil pollution, Reporting and recordkeeping requirements. 40 CFR Part 112 Environmental protection, Oil pollution, Penalties, Reporting and recordkeeping requirements. 40 CFR Part 116 Environmental protection, Hazardous substances, Reporting and recordkeeping requirements, Water pollution control. 40 CFR Part 117 Environmental protection, Hazardous substances, Penalties, Reporting and recordkeeping requirements, Water pollution control. 40 CFR Part 122 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous substances, Reporting and recordkeeping requirements, Water pollution control. 40 CFR Part 230 Environmental protection, Water pollution control. 40 CFR Part 232 Environmental protection, Intergovernmental relations, Water pollution control. 40 CFR Part 300 Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Occupational safety and health, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. 40 CFR Part 302 Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. 40 CFR Part 401 Environmental protection, Waste treatment and disposal, Water pollution control. 0 For the reasons stated herein, the agencies propose to amend 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401 of the Code of Federal Regulations to repeal the amendments that were promulgated in the 2015 Rule and reestablish the regulatory text that was in place immediately prior to promulgation of the 2015 Rule. Dated: June 29, 2018. E. Scott Pruitt, Administrator, Environmental Protection Agency. Dated: June 29, 2018. R.D. James, Assistant Secretary of the Army (Civil Works). [FR Doc. 2018-14679 Filed 7-11-18; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules 32227
vending machine, in a type size at least the ones that the agencies are currently 2015 Rule in 24 States as well. If this
150 percent of the size of the net implementing in light of the agencies’ proposal is finalized, the agencies
quantity of contents declaration on the final rule published on February 6, would administer the regulations
front of the package, and with sufficient 2018, adding a February 6, 2020 promulgated in 1986 and 1988 in
color and contrasting background to applicability date to the 2015 Rule, as portions of 33 CFR part 328 and 40 CFR
other print on the label to permit the well as judicial decisions preliminarily parts 110, 112, 116, 117, 122, 230, 232,
prospective purchaser to clearly enjoining and staying the 2015 Rule. 300, 302, and 401, and would continue
distinguish the information. DATES: Comments must be received on to interpret the statutory term ‘‘waters of
* * * * * or before August 13, 2018. the United States’’ to mean the waters
ADDRESSES: Submit your comments, covered by those regulations, as the
Dated: July 6, 2018. agencies are currently implementing
Leslie Kux,
identified by Docket ID No. EPA–HQ–
OW–2017–0203, at http:// those regulations consistent with
Associate Commissioner for Policy. Supreme Court decisions and
www.regulations.gov. Follow the online
[FR Doc. 2018–14906 Filed 7–11–18; 8:45 am] instructions for submitting comments. longstanding practice, as informed by
BILLING CODE 4164–01–P Once submitted, comments cannot be applicable guidance documents,
edited or removed from Regulations.gov. training, and experience.
The agencies may publish any comment State, tribal, and local governments
DEPARTMENT OF DEFENSE received to the public docket. Do not have well-defined and established
submit electronically any information relationships with the federal
Department of the Army, Corps of you consider to be Confidential government in implementing CWA
Engineers Business Information (CBI) or other programs. Those relationships are not
information whose disclosure is affected by this proposed rule, which
33 CFR Part 328 restricted by statute. Multimedia would not alter the jurisdiction of the
submissions (audio, video, etc.) must be CWA compared to the regulations and
ENVIRONMENTAL PROTECTION accompanied by a written comment. practice that the agencies are currently
AGENCY The written comment is considered the applying. The proposed rule would
official comment and should include permanently repeal the 2015 Rule,
40 CFR Parts 110, 112, 116, 117, 122, discussion of all points you wish to which amended the longstanding
230, 232, 300, 302, and 401 make. The agencies will generally not definition of ‘‘waters of the United
consider comments or comment content States’’ in portions of 33 CFR part 328
[EPA–HQ–OW–2017–0203; FRL–9980–52– and 40 CFR parts 110, 112, 116, 117,
OW] located outside of the primary
submission (i.e., on the web, cloud, or 122, 230, 232, 300, 302, and 401, and
RIN 2040–AF74 other file sharing system). For restore the regulations as they existed
additional submission methods, the full prior to the amendments in the 2015
Definition of ‘‘Waters of the United EPA public comment policy, Rule.1
States’’—Recodification of Preexisting information about CBI or multimedia The agencies are issuing this
Rule submissions, and general guidance on supplemental notice of proposed
making effective comments, please visit rulemaking (SNPRM) to clarify,
AGENCY: Department of Defense, supplement and give interested parties
Department of the Army, Corps of http://www2.epa.gov/
dockets.commenting-epa-dockets. an opportunity to comment on certain
Engineers; Environmental Protection important considerations and reasons
Agency (EPA). FOR FURTHER INFORMATION CONTACT:
Michael McDavit, Office of Water for the agencies’ proposal. The agencies
ACTION: Supplemental notice of clarify herein the scope of the
proposed rulemaking. (4504–T), Environmental Protection
Agency, 1200 Pennsylvania Avenue solicitation of comment and the actions
NW, Washington, DC 20460; telephone proposed. In response to the July 27,
SUMMARY: The purpose of this 2017 NPRM, (82 FR 34899), the agencies
supplemental notice is for the number: (202) 566–2428; email address:
CWAwotus@epa.gov; or Stacey Jensen, received numerous comments on the
Environmental Protection Agency (EPA) impacts of repealing the 2015 Rule in its
and the Department of the Army Regulatory Community of Practice
(CECW–CO–R), U.S. Army Corps of entirety. Others commented in favor of
(agencies) to clarify, supplement and retaining the 2015 Rule, either as
seek additional comment on an earlier Engineers, 441 G Street NW,
Washington, DC 201314; telephone written or with modifications. Some
proposal, published on July 27, 2017, to commenters interpreted the proposal as
repeal the 2015 Rule Defining Waters of number: (202) 761–6903; email address:
USACE_CWA_Rule@usace.army.mil. restricting their opportunity to provide
the United States (‘‘2015 Rule’’), which such comments either supporting or
amended portions of the Code of SUPPLEMENTARY INFORMATION: The
opposing repeal of the 2015 Rule. In this
Federal Regulations (CFR). As stated in agencies propose to repeal the Clean SNPRM, the agencies reiterate that this
the agencies’ July 27, 2017 Notice of Water Rule: Definition of ‘‘Waters of the regulatory action is intended to
Proposed Rulemaking (NPRM), the United States,’’ 80 FR 37054, and permanently repeal the 2015 Rule in its
agencies propose to repeal the 2015 recodify the regulatory definitions of entirety, and we invite all interested
Rule and restore the regulatory text that ‘‘waters of the United States’’ that persons to comment on whether the
existed prior to the 2015 Rule, as existed prior to the August 28, 2015 2015 Rule should be repealed.
amozie on DSK3GDR082PROD with PROPOSALS1
informed by guidance in effect at that effective date of the 2015 Rule. Those
time. If this proposal is finalized, the preexisting regulatory definitions are 1 While EPA administers most provisions in the
regulations defining the scope of federal the ones that the agencies are currently CWA, the Department of the Army, Corps of
Clean Water Act (CWA) jurisdiction implementing in light of the agencies’ Engineers (Corps) administers the permitting
would be those portions of the CFR as final rule (83 FR 5200, February 6, program under section 404. During the 1980s, both
agencies adopted substantially similar definitions of
they existed before the amendments 2018), which added a February 6, 2020 ‘‘waters of the United States.’’ See 51 FR 41206,
promulgated in the 2015 Rule. Those applicability date to the 2015 Rule. Nov. 13, 1986, amending 33 CFR 328.3; 53 FR
preexisting regulatory definitions are Judicial decisions currently enjoin the 20764, June 6, 1988, amending 40 CFR 232.2.
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![Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules 32229
all waters located within 1,500 feet of same tributary, a much less expansive parties, including environmental
the high tide line of a category (1) treatment of similarly situated waters groups, and groups representing
though (3) ‘‘jurisdictional by rule’’ than in the 2015 Rule. farming, recreational, forestry, and other
water; and all waters within 1,500 feet Under the 2015 Rule, to determine interests, filed complaints and petitions
of the ordinary high water mark of the whether a water, alone or in for review in multiple federal district 6
Great Lakes. Id. at 37105. The entire combination with similarly situated and appellate 7 courts challenging the
water is considered neighboring if any waters across a watershed, has such an 2015 Rule. In those cases, the
portion of it lies within one of these effect, one must look at nine functions challengers alleged procedural
zones. See id. This regulatory text did such as sediment trapping, runoff deficiencies in the development and
not appear in the proposed rule, and storage, provision of life cycle promulgation of the 2015 Rule and
thus the agencies did not receive public dependent aquatic habitat, and other substantive deficiencies in the 2015
comment on these numeric measures. functions. It is sufficient for determining Rule itself. Some challengers argued
In addition to the six categories of whether a water has a significant nexus that the 2015 Rule was too expansive
‘‘jurisdictional by rule’’ waters, the 2015 if any single function performed by the while others argued that it excluded too
Rule identifies certain waters that are water, alone or together with similarly many waters from federal jurisdiction.
subject to a case-specific analysis to situated waters in the watershed, The day before the 2015 Rule’s
determine if they have a ‘‘significant contributes significantly to the August 28, 2015 effective date, the U.S.
nexus’’ to a water that is jurisdictional. chemical, physical, or biological District Court for the District of North
Id. at 37104–05. The first category integrity of the nearest category (1) Dakota preliminarily enjoined the 2015
consists of five specific types of waters through (3) ‘‘jurisdictional by rule’’ Rule in the 13 States that challenged the
in specific regions of the country: water. Id. Taken together, the rule in that court.8 The district court
Prairie potholes, Carolina and Delmarva enumeration of the nine functions and found those States were ‘‘likely to
bays, pocosins, western vernal pools in the more expansive consideration of succeed’’ on the merits of their
California, and Texas coastal prairie ‘‘similarly situated’’ in the 2015 Rule challenge to the 2015 Rule because,
wetlands. Id. at 37105. The second could mean that the vast majority of among other reasons, ‘‘it appears likely
category consists of all waters located water features in the United States may that the EPA has violated its
within the 100-year floodplain of any come within the jurisdictional purview Congressional grant of authority in its
category (1) through (3) ‘‘jurisdictional of the federal government.4 Indeed, the promulgation of the Rule.’’ In particular,
by rule’’ water and all waters located agencies stated in the 2015 Rule that the the court noted concern that the 2015
within 4,000 feet of the high tide line or ‘‘the chemical, physical, and biological Rule’s definition of tributary ‘‘includes
ordinary high water mark of any integrity of downstream waters is vast numbers of waters that are unlikely
category (1) through (5) ‘‘jurisdictional directly related to the aggregate to have a nexus to navigable waters.’’
by rule’’ water. Id. These quantitative contribution of upstream waters that Further, the court found that ‘‘it appears
measures did not appear in the flow into them, including any likely that the EPA failed to comply
proposed rule, and thus the agencies did tributaries and connected wetlands.’’ Id. with [Administrative Procedure Act
not receive public comment on these at 37066. (APA)] requirements when
specific measures. The agencies also retained exclusions promulgating the Rule,’’ suggesting that
The 2015 Rule defines ‘‘significant from the definition of ‘‘waters of the certain distance-based measures were
nexus’’ to mean a water, including United States’’ for prior converted not a logical outgrowth of the proposal
wetlands, that either alone or in cropland and waste treatment systems. to the 2015 Rule. North Dakota v. EPA,
combination with other similarly Id. at 37105. In addition, the agencies 127 F. Supp. 3d 1047, 1051, 1056, 1058
situated waters in the region, codified several exclusions that (D.N.D. 2015). No party sought an
significantly affects the chemical, reflected longstanding agency practice, interlocutory appeal.
physical, or biological integrity of a and added others such as ‘‘puddles’’ The petitions for review filed in the
category (1) through (3) ‘‘jurisdictional and ‘‘swimming pools’’ in response to courts of appeals were consolidated in
by rule’’ water. 80 FR 37106. ‘‘For an concerns raised by stakeholders during the U.S. Court of Appeals for the Sixth
effect to be significant, it must be more the public comment period on the Circuit. In that litigation, state and
than speculative or insubstantial.’’ Id. proposed 2015 Rule. Id. at 37096–98, industry petitioners raised concerns
The term ‘‘in the region’’ means ‘‘the 37105. about whether the 2015 Rule violates
watershed that drains to the nearest’’ the Constitution and the CWA and
B. Legal Challenges to the 2015 Rule
primary water.2 Id. This definition is whether its promulgation violated
different than the test articulated by the Following the 2015 Rule’s
agencies in their 2008 Rapanos publication, 31 States 5 and 53 non-state Utah, West Virginia, Wisconsin, and Wyoming.
Guidance.3 That guidance interpreted Iowa joined the legal challenge later in the process,
4 ‘‘[T]he vast majority of the nation’s water bringing the total to 32 States.
‘‘similarly situated’’ to include all 6 U.S. District Courts for the Northern and
features are located within 4,000 feet of a covered
wetlands (not waters) adjacent to the tributary, traditional navigable water, interstate Southern District of Georgia, District of Minnesota,
water, or territorial sea.’’ U.S. EPA and Department District of North Dakota, Southern District of Ohio,
2 In this notice, a ‘‘primary’’ water is a category of the Army. Economic Analysis of the EPA-Army Northern District of Oklahoma, Southern District of
(1) through (3) ‘‘jurisdictional by rule’’ water. Clean Water Rule at 11 (May 20, 2015) (‘‘2015 Rule Texas, District of Arizona, Northern District of
3 See U.S. EPA and U.S. Army Corps of Engineers. Economic Analysis’’) (Docket ID: EPAHQ–OW– Florida, District of the District of Columbia,
Clean Water Act Jurisdiction Following the U.S. 2011–0880–20866), available at https:// Western District of Washington, Northern District of
amozie on DSK3GDR082PROD with PROPOSALS1
Supreme Court’s Decision in Rapanos v. United www.regulations.gov/document?D=EPA-HQ-OW- California, and Northern District of West Virginia.
States & Carabell v. United States at 1 (Dec. 2, 2008) 2011-0880-20866. 7 U.S. Court of Appeals for the Second, Fifth,
(‘‘Rapanos Guidance’’), available at https:// 5 Alabama, Alaska, Arizona, Arkansas, Colorado, Sixth, Eighth, Ninth, Tenth, Eleventh, and District
www.epa.gov/sites/production/files/2016-02/ Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, of Columbia Circuits.
documents/cwa_jurisdiction_following_ Louisiana, Michigan, Mississippi, Missouri, 8 Alaska, Arizona, Arkansas, Colorado, Idaho,
rapanos120208.pdf. The agencies acknowledge that Montana, Nebraska, Nevada, New Mexico Missouri, Montana, Nebraska, Nevada, New
the Rapanos Guidance did not impose legally (Environment Department and State Engineer), Mexico, North Dakota, South Dakota, and
binding requirements, see id. at 4 n.17, but believe North Carolina (Department of Environment and Wyoming. Iowa’s motion to intervene in the case
that this guidance is relevant to the discussion in Natural Resources), North Dakota, Ohio, Oklahoma, was granted after issuance of the preliminary
this notice. South Carolina, South Dakota, Tennessee, Texas, injunction.
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procedural requirements under the APA Mississippi. See Texas v. EPA, No. informed by applicable guidance
and other statutes. Environmental 3:15–cv–162 (S.D. Tex.); Am. Farm documents and longstanding agency
petitioners also challenged the 2015 Bureau Fed’n et al. v. EPA, No. 3:15–cv– practice. The agencies invited comment
Rule, including exclusions therein. On 165 (S.D. Tex.). At least three additional on the NPRM over a 62-day period.
October 9, 2015, approximately six States are seeking a preliminary Shortly after the Supreme Court
weeks after the 2015 Rule took effect in injunction in the U.S. District Court for decided that the courts of appeals do
the 37 States that were not subject to the the Southern District of Ohio as well. not have original jurisdiction to review
preliminary injunction issued by the See, e.g., States’ Supplemental challenges to the 2015 Rule and directed
District of North Dakota, the Sixth Memorandum in Support of Preliminary the Sixth Circuit to dismiss the
Circuit stayed the 2015 Rule nationwide Injunction, Ohio v. EPA, No. 2:15–cv– consolidated challenges to the 2015
after finding, among other things, that 02467 (S.D. Ohio June 20, 2018) (brief Rule for lack of jurisdiction, the
State petitioners had demonstrated ‘‘a filed by the States of Ohio, Michigan, agencies issued a final rule (83 FR 5200,
substantial possibility of success on the and Tennessee in support of the States’ Feb. 6, 2018), after providing notice and
merits of their claims.’’ In re EPA & motion for a preliminary injunction an opportunity for public comment, that
Dep’t of Def. Final Rule, 803 F.3d 804 against the 2015 Rule). added an applicability date to the 2015
(6th Cir. 2015) (‘‘In re EPA’’). Rule. The applicability date was
On January 13, 2017, the U.S. C. Executive Order 13778, the Notice of
Proposed Rulemaking, and the established as February 6, 2020. When
Supreme Court granted certiorari on the adding the applicability date to the 2015
question of whether the courts of Applicability Date Rule
Rule, the agencies clarified that they
appeals have original jurisdiction to The agencies are engaged in a two-
will continue to implement nationwide
review challenges to the 2015 Rule. See step process intended to review and
the previous regulatory definition of
Nat’l Ass’n of Mfrs. v. Dep’t of Defense, repeal or revise, as appropriate and
‘‘waters of the United States,’’ consistent
137 S. Ct. 811 (2017). The Sixth Circuit consistent with law, the definition of
with the practice and procedures the
granted petitioners’ motion to hold in ‘‘waters of the United States’’ as set
forth in the 2015 Rule. This process agencies implemented before and
abeyance the briefing schedule in the
began in response to Executive Order immediately following the issuance of
litigation challenging the 2015 Rule
13778 issued on February 28, 2017, by the 2015 Rule pursuant to the
pending a Supreme Court decision on
the President entitled ‘‘Restoring the preliminary injunction issued by the
the question of the court of appeals’
Rule of Law, Federalism, and Economic District of North Dakota and the
jurisdiction. On January 22, 2018, the
Growth by Reviewing the ‘Waters of the nationwide stay issued by the Sixth
Supreme Court, in a unanimous
United States’ Rule.’’ Section 1 of the Circuit. The agencies further explained
opinion, held that the 2015 Rule is
Executive Order states, ‘‘[i]t is in the that the final applicability date rule
subject to direct review in the district
national interest to ensure the Nation’s would ensure regulatory certainty and
courts. Nat’l Ass’n of Mfrs. v. Dep’t of
navigable waters are kept free from consistent implementation of the CWA
Def., 138 S. Ct. 617, 624 (2018).
Throughout the pendency of the pollution, while at the same time nationwide while the agencies
Supreme Court litigation (and for a short promoting economic growth, reconsider the 2015 Rule and
time thereafter), the Sixth Circuit’s minimizing regulatory uncertainty, and potentially pursue further rulemaking to
nationwide stay remained in effect. In showing due regard for the roles of the develop a new definition of ‘‘waters of
response to the Supreme Court’s Congress and the States under the the United States.’’ The applicability
decision, on February 28, 2018, the Constitution.’’ The Order directed the date rule was challenged in a number of
Sixth Circuit lifted the stay and EPA and the Army to review the 2015 district courts. Generally, the challenges
dismissed the corresponding petitions Rule for consistency with the policy raise concerns that the agencies’ action
for review. See In re Dep’t of Def. & EPA outlined in Section 1 of the Order and was arbitrary and capricious because the
Final Rule, 713 Fed. App’x 489 (6th Cir. to issue a proposed rule rescinding or agencies did not address substantive
2018). revising the 2015 Rule as appropriate comments regarding the 2015 Rule, as
Since the Supreme Court’s and consistent with law (Section 2). The well as procedural concerns with
jurisdictional ruling, district court Executive Order also directed the respect to the length of the public
litigation regarding the 2015 Rule has agencies to ‘‘consider interpreting the comment period for the proposed
resumed. At this time, the 2015 Rule term ‘navigable waters’ . . . in a manner applicability date rule. At this time,
continues to be subject to a preliminary consistent with’’ Justice Scalia’s these challenges remain pending in the
injunction issued by the District of plurality opinion in Rapanos (Section district courts where they were filed.
North Dakota as to 13 States: Alaska, 3). D. Comments on the Original Notice of
Arizona, Arkansas, Colorado, Idaho, On March 6, 2017, the agencies Proposed Rulemaking
Missouri, Montana, Nebraska, Nevada, published a notice of intent to review
North Dakota, South Dakota, Wyoming, the 2015 Rule and provide notice of a The agencies accepted comments on
and New Mexico. The 2015 Rule also is forthcoming proposed rulemaking the NPRM from July 27, 2017, through
subject to a preliminary injunction consistent with the Executive Order. 82 September 27, 2017. The agencies
issued by the U.S. District Court for the FR 12532. Shortly thereafter, the received more than 685,000 comments
Southern District of Georgia as to 11 agencies announced that they would on the NPRM from a broad spectrum of
more States: Georgia, Alabama, Florida, implement the Executive Order in a interested parties. The agencies are
Indiana, Kansas, Kentucky, North two-step approach. On July 27, 2017, continuing to review those extensive
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Carolina, South Carolina, Utah, West the agencies published a NPRM (82 FR comments. Some commenters expressed
Virginia, and Wisconsin. See Georgia v. 34899) that proposed to rescind the support for the agencies’ proposal to
Pruitt, No. 15–cv–79 (S.D. Ga.). In 2015 Rule and restore the regulatory text repeal the 2015 Rule, stating, among
another action, the U.S. District Court that governed prior to the promulgation other things, that the 2015 Rule exceeds
for the Southern District of Texas is of the 2015 Rule, which the agencies the agencies’ statutory authority. Other
considering preliminary injunction have been implementing since the commenters opposed the proposal,
motions filed by parties including the judicial stay of the 2015 Rule consistent stating, among other things, that
States of Texas, Louisiana, and with Supreme Court decisions and repealing the 2015 Rule will increase
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regulatory uncertainty and adversely in taking a final action on this ability to repeal regulations
impact water quality. rulemaking. As such, commenters need promulgated by a prior administration
Based on the agencies’ careful and not resubmit comments already based on changes in agency policy
ongoing review of the comments provided in response to the agencies’ where ‘‘the agency adequately explains
submitted in response to the NPRM, the July 27, 2017 NPRM (82 FR 34899). the reasons for a reversal of policy.’’ See
agencies believe that it is in the public Brand X, 545 U.S. at 981. A revised
interest to provide further explanation II. Proposal To Repeal the 2015 Rule
rulemaking based ‘‘on a reevaluation of
and allow interested parties additional A. Legal Authority To Repeal which policy would be better in light of
opportunity to comment on the The agencies’ ability to repeal an the facts’’ is ‘‘well within an agency’s
proposed repeal of the 2015 Rule. existing regulation through notice-and- discretion,’’ and ‘‘[a] change in
Because some commenters interpreted comment rulemaking is well-grounded administration brought about by the
the NPRM as restricting their ability to people casting their votes is a perfectly
in the law. The APA defines rulemaking
comment on the legal and policy reasonable basis for an executive
to mean ‘‘agency process for
reasons for or against the repeal of the agency’s reappraisal’’ of its regulations
formulating, amending, or repealing a
2015 Rule while others submitted and programs. Nat’l Ass’n of Home
rule.’’ 5 U.S.C. 551(5). The CWA
comments addressing these topics, the Builders v. EPA, 682 F.3d 1032, 1038 &
complements this authority by
agencies wish to make clear that 1043 (D.C. Cir. 2012) (‘‘NAHB’’).
providing the Administrator with broad
comments on that subject are solicited.
authority to ‘‘prescribe such regulations B. Legal Background
Additionally, some commenters
as are necessary to carry out the
appeared to be confused by whether the 1. The Clean Water Act
functions under this Act.’’ 33 U.S.C.
agencies proposed a temporary or
interim, as opposed to a permanent, 1361(a). This broad authority includes Congress amended the Federal Water
repeal of the 2015 Rule. While the regulations that repeal or revise CWA Pollution Control Act (FWPCA), or
agencies did refer to the July 2017 implementing regulations promulgated Clean Water Act (CWA) as it is
proposal as an ‘‘interim action’’ (82 FR by a prior administration. commonly called,9 in 1972 to address
The Supreme Court has made clear longstanding concerns regarding the
34902), that was in the context of
that ‘‘[a]gencies are free to change their quality of the nation’s waters and the
explaining that the proposal to repeal
existing policies as long as they provide federal government’s ability to address
the 2015 Rule is the first step of a two-
a reasoned explanation for the change,’’ those concerns under existing law. Prior
step process, as described above, and
that the agencies are planning to take and ‘‘[w]hen an agency changes its to 1972, the ability to control and
the additional, second step of existing position, it ‘need not always redress water pollution in the nation’s
conducting a separate notice and provide a more detailed justification waters largely fell to the Corps under
comment rulemaking to propose a new than what would suffice for a new the Rivers and Harbors Act of 1899.
definition of ‘‘waters of the United policy created on a blank slate.’ ’’ Congress had also enacted the Water
States.’’ In this notice, the agencies are Encino Motorcars, LLC v. Navarro, 136 Pollution Control Act of 1948, Public
clarifying that, regardless of the timing S. Ct. 2117, 2125 (2016) (citations Law 80–845, 62 Stat. 1155 (June 30,
or ultimate outcome of that additional omitted). The NPRM discussed how the 1948), to address interstate water
rulemaking, the agencies are proposing agencies may revise or repeal the pollution, and subsequently amended
a permanent repeal of the 2015 Rule at regulatory definition of ‘‘waters of the that statute in 1956 (giving the statute is
this stage. This was also our intent in United States’’ so long as the agencies’ current formal name), 1961, and 1965.
the NPRM. Finally, some commenters action is based on a reasoned The early versions of the CWA
did not fully understand the precise explanation. See 82 FR 34901. The promoted the development of pollution
action the NPRM proposed to take, e.g., agencies can do so based on changes in abatement programs, required states to
repealing, staying, or taking some other circumstance, or changes in statutory develop water quality standards, and
action with respect to the 2015 Rule. interpretation or policy judgments. See, authorized the federal government to
The agencies are issuing this SNPRM e.g., FCC v. Fox Television Stations, bring enforcement actions to abate water
and are inviting all interested persons to Inc., 556 U.S. 502, 514–15 (2009); Ctr. pollution.
comment on whether the agencies for Sci. in Pub. Interest v. Dep’t of These early statutory efforts, however,
should repeal the 2015 Rule and Treasury, 797 F.2d 995, 998–99 & n.1 proved inadequate to address the
recodify the regulations currently being (D.C. Cir. 1986). The agencies’ decline in the quality of the nation’s
implemented by the agencies. interpretation of the statutes they waters, see City of Milwaukee v. Illinois,
administer, such as the CWA, are not 451 U.S. 304, 310 (1981), so Congress
E. Comments on This Supplemental ‘‘instantly carved in stone’’; quite the performed a ‘‘total restructuring’’ and
Notice of Proposed Rulemaking contrary, the agencies ‘‘must consider ‘‘complete rewriting’’ of the existing
As discussed in the next sections, the varying interpretations and the wisdom statutory framework in 1972, id. at 317
agencies are proposing to permanently of [their] policy on a continuing basis, (quoting legislative history of 1972
repeal the 2015 Rule. The agencies . . . for example, in response to . . . a amendments). That restructuring
welcome comment on all issues that are change in administrations.’’ Nat’l Cable resulted in the enactment of a
relevant to the consideration of whether & Telecommc’ns Ass’n v. Brand X comprehensive scheme designed to
to repeal the 2015 Rule. In response to Internet Servs., 545 U.S. 967, 981–82 prevent, reduce, and eliminate pollution
the initial NPRM, many commenters (2005) (‘‘Brand X’’) (internal quotation in the nation’s waters generally, and to
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have already provided comment on marks omitted) (quoting Chevron regulate the discharge of pollutants into
considerations and issues that weigh in U.S.A., Inc. v. NRDC, 467 U.S. 837, 863– navigable waters specifically. See, e.g.,
favor of or against repeal, including 64 (1984)) (citing Motor Vehicle Mfrs.
many of the issues articulated below. Ass’n v. State Farm Mut. Auto. Ins. Co., 9 The FWPCA is commonly referred to as the
The agencies will consider all of those 463 U.S. 29, 59 (1983) (Rehnquist, J., CWA following the 1977 amendments to the
FWPCA. Public Law 95–217, 91 Stat. 1566 (1977).
previously submitted comments, in concurring in part and dissenting in For ease of reference, the agencies will generally
addition to any new comments part)). The Supreme Court and lower refer to the FWPCA in this notice as the CWA or
submitted in response to this SNPRM, courts have acknowledged an agency’s the Act.
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S.D. Warren Co. v. Maine Bd. of Envtl. manner affecting any right or into those waters. Section 301 contains
Prot., 547 U.S. 370, 385 (2006) (‘‘[T]he jurisdiction of the States with respect to the key regulatory mechanism: ‘‘Except
Act does not stop at controlling the the waters (including boundary waters) as in compliance with this section and
‘addition of pollutants,’ but deals with of such States.’’ Id. at 1370. Congress sections 302, 306, 307, 318, 402, and
‘pollution’ generally[.]’’). also pledged to provide technical 404 of this Act, the discharge of any
The objective of the new statutory support and financial aid to the states pollutant by any person shall be
scheme was ‘‘to restore and maintain ‘‘in connection with the prevention, unlawful.’’ Id. at 1311(a). A ‘‘discharge
the chemical, physical, and biological reduction, and elimination of of a pollutant’’ is defined to include
integrity of the Nation’s waters.’’ 33 pollution.’’ Id. at 1251(b). ‘‘any addition of any pollutant to
U.S.C. 1251(a). In order to meet that To carry out these policies, Congress navigable waters from any point
objective, Congress declared two broadly defined ‘‘pollution’’ to mean source,’’ such as a pipe, ditch or other
national goals: (1) ‘‘that the discharge of ‘‘the man-made or man-induced ‘‘discernible, confined and discrete
pollutants into the navigable waters be alteration of the chemical, physical, conveyance.’’ Id. at 1362(12), (14)
eliminated by 1985;’’ and (2) ‘‘that biological, and radiological integrity of (emphasis added). The term
wherever attainable, an interim goal of water,’’ id. at 1362(19), to parallel the ‘‘pollutant,’’ as compared to the broader
water quality which provides for the broad objective of the Act ‘‘to restore term ‘‘pollution,’’ id. at 1362(19), means
protection and propagation of fish, and maintain the chemical, physical, ‘‘dredged spoil, solid waste, incinerator
shellfish, and wildlife and provides for and biological integrity of the Nation’s residue, sewage, garbage, sewage sludge,
recreation in and on the water be waters,’’ id. at 1251(a). Congress then munitions, chemical wastes, biological
achieved by July 1, 1983. . . .’’ Id. at crafted a non-regulatory statutory materials, radioactive materials, heat,
1251(a)(1)–(2). framework to provide technical and wrecked or discarded equipment, rock,
Congress established several key financial assistance to the states to sand, cellar dirt and industrial,
policies that direct the work of the prevent, reduce, and eliminate pollution municipal, and agricultural waste
agencies to effectuate those goals. For in the broader set of the nation’s waters. discharged into water.’’ Id. at 1362(6).
example, Congress declared as a For example, section 105 of the Act, Thus, it is unlawful to discharge
national policy ‘‘that the discharge of ‘‘Grants for research and development,’’ pollutants into navigable waters
toxic pollutants in toxic amounts be authorized EPA ‘‘to make grants to any (defined in the Act as ‘‘the waters of the
prohibited; . . . that Federal financial State or States or interstate agency to United States’’) from a point source
assistance be provided to construct demonstrate, in river basins or portions unless the discharge complies with
publicly owned waste treatment works; thereof, advanced treatment and certain enumerated sections of the
. . . that areawide waste treatment environmental enhancement techniques CWA, including obtaining
management planning processes be to control pollution from all sources, authorizations to discharge pollutants
developed and implemented to assure . . . including nonpoint sources, . . . pursuant to the section 402 National
adequate control of sources of pollutants [and] for research and demonstration Pollutant Discharge Elimination System
in each State; . . . [and] that programs projects for prevention of pollution of (NPDES) permit program and the
for the control of nonpoint sources of any waters by industry including, but section 404 dredged or fill material
pollution be developed and not limited to, the prevention, permit program. See id. at 1342 and
implemented in an expeditious manner reduction, and elimination of the 1344.
so as to enable the goals of this Act to discharge of pollutants.’’ 33 U.S.C. Under this statutory scheme, the
be met through the control of both point 1255(b)–(c) (emphases added); see also states are responsible for developing
and nonpoint sources of pollution.’’ Id. id. at 1256(a) (authorizing EPA to issue water quality standards for waters of the
at 1251(a)(3)–(7). ‘‘grants to States and to interstate United States within their borders and
Congress envisioned a major role for agencies to assist them in administering reporting on the condition of those
the states in implementing the CWA, programs for the prevention, reduction, waters to EPA every two years. Id. at
and the CWA also recognizes the and elimination of pollution’’). Section 1313, 1315. States are also responsible
importance of preserving the states’ 108, ‘‘Pollution control in the Great for developing total maximum daily
independent authority and Lakes,’’ authorized EPA to enter into loads (TMDLs) for waters that are not
responsibility in this area. The CWA agreements with any state to develop meeting established water quality
balances the traditional power of states plans for the ‘‘elimination or control of standards and must submit those
to regulate land and water resources pollution, within all or any part of the TMDLs to EPA for approval. Id. at
within their borders with the need for watersheds of the Great Lakes.’’ Id. at 1313(d). States also have authority to
a federal water quality regulation to 1258(a) (emphasis added); see also id. at issue water quality certifications or
protect the waters of the United States. 1268(a)(3)(C) (defining the ‘‘Great Lakes waive certification for every federal
For example, the statute reflects ‘‘the System’’ as ‘‘all the streams, rivers, permit or license issued within their
policy of the Congress to recognize, lakes, and other bodies of water within borders that may result in a discharge to
preserve, and protect the primary the drainage basin of the Great Lakes’’). navigable waters. Id. at 1341. A change
responsibilities and rights of States to Similar broad pollution control to the interpretation of ‘‘waters of the
prevent, reduce, and eliminate programs were created for other major United States’’ may change the scope of
pollution’’ and ‘‘to plan the watersheds, including, for example, the waters subject to CWA jurisdiction and
development and use . . . of land and Chesapeake Bay, see id. at 1267(a)(3), thus may change the scope of waters for
water resources. . . .’’ Id. at 1251(b). Long Island Sound, see id. at which states may assume these
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Congress also declared as a national 1269(c)(2)(D), and Lake Champlain, see responsibilities under the Act.
policy that states manage the major id. at 1270(g)(2). These same regulatory authorities can
construction grant program and For the narrower set of the nation’s be assumed by Indian tribes under
implement the core permitting programs waters identified as ‘‘navigable waters’’ section 518 of the CWA, which
authorized by the statute, among other or ‘‘the waters of the United States,’’ id. authorizes EPA to treat eligible Indian
responsibilities. Id. Congress added that at 1362(7), Congress created a federal tribes in a manner similar to states for
‘‘nothing in this Act shall . . . be regulatory permitting program designed a variety of purposes, including
construed as impairing or in any to address the discharge of pollutants administering each of the principal
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CWA regulatory programs. Id. at that nothing in the legislative history of commerce was not limited to regulation
1377(e). In addition, states and tribes the Act provides any indication that of the channels themselves, but could
retain sovereign authority to protect and ‘‘Congress intended to exert anything extend to activities necessary to protect
manage the use of those waters that are more than its commerce power over the channels. See Oklahoma ex rel.
not navigable waters under the CWA. navigation.’’ Id. at 168 n.3. Phillips v. Guy F. Atkinson Co., 313 U.S.
See, e.g., id. at 1251(b), 1251(g), 1370, The Supreme Court has cautioned 508, 523 (1941) (‘‘Congress may exercise
1377(a). Forty-seven states administer that one must look to the underlying its control over the non-navigable
the CWA section 402 permit program for purpose of the statute to determine the stretches of a river in order to preserve
those waters of the United States within scope of federal authority being or promote commerce on the navigable
their boundaries, and two administer exercised over navigable waters under portions.’’). The Supreme Court had also
the section 404 permit program. At the Commerce Clause. See PPL clarified that Congress could regulate
present, no tribes administer the section Montana, LLC v. Montana, 132 S. Ct. waterways that formed a part of a
402 or 404 programs. 1215, 1228 (2012). The Supreme Court channel of interstate commerce, even if
The agencies must develop regulatory did that in United States v. Riverside they are not themselves navigable or do
programs designed to ensure that the Bayview Homes, for example, and not cross state boundaries. See Utah v.
full statute is implemented as Congress determined that Congress had intended United States, 403 U.S. 9, 11 (1971).
intended. See, e.g., Hibbs v. Winn, 542 ‘‘to exercise its powers under the These developments were discussed
U.S. 88, 101 (2004) (‘‘A statute should Commerce Clause to regulate at least during the legislative process leading up
be construed so that effect is given to all some waters that would not be deemed to the passage of the 1972 CWA
its provisions, so that no part will be ‘navigable’ under the classical amendments, and certain members
inoperative or superfluous, void or understanding of that term.’’ 474 U.S. referred to the scope of the amendments
insignificant.’’). This includes pursuing 121, 133 (1985) (‘‘[T]he evident breadth as encompassing waterways that serve
the overall ‘‘objective’’ of the CWA to of congressional concern for protection as ‘‘links in the chain’’ of interstate
‘‘restore and maintain the chemical, of water quality and aquatic ecosystems commerce as it flows through various
physical, and biological integrity of the suggests that it is reasonable for the channels of transportation, such as
Nation’s waters,’’ 33 U.S.C. 1251(a), Corps to interpret the term ‘waters’ to railroads and highways. See, e.g., 118
while implementing the specific encompass wetlands adjacent to waters Cong. Rec. 33756–57 (1972) (statement
‘‘policy’’ directives from Congress to, as more conventionally defined.’’); see of Rep. Dingell); 118 Cong. Rec. 33699
among other things, ‘‘recognize, also SWANCC, 531 U.S. at 167 (noting (Oct. 4, 1972) (statement of Sen.
preserve, and protect the primary that the Riverside Bayview ‘‘holding was Muskie).10 Other references suggest that
responsibilities and rights of States to based in large measure upon Congress’ congressional committees at least
prevent, reduce, and eliminate unequivocal acquiescence to, and contemplated applying the ‘‘control
pollution’’ and ‘‘to plan the approval of, the Corps’ regulations requirements’’ of the Act ‘‘to the
development and use . . . of land and interpreting the CWA to cover wetlands navigable waters, portions thereof, and
water resources,’’ id. at 1251(b). See adjacent to navigable waters’’). their tributaries.’’ S. Rep. No. 92–414,
Webster’s II, New Riverside University The classical understanding of the 92nd Cong., 1st Sess. at 77 (1971). And
Dictionary (1994) (defining ‘‘policy’’ as term navigable was first articulated by in 1977, when Congress authorized
a ‘‘plan or course of action, as of a the Supreme Court in The Daniel Ball: State assumption over the section 404
government[,] designed to influence and dredged or fill material permitting
Those rivers must be regarded as public
determine decisions and actions;’’ an navigable rivers in law which are navigable program, Congress limited the scope of
‘‘objective’’ is ‘‘something worked in fact. And they are navigable in fact when assumable waters by requiring the Corps
toward or aspired to: Goal’’). To they are used, or are susceptible of being to retain permitting authority over
maintain that balance, the agencies must used, in their ordinary condition, as Rivers and Harbors Act waters (as
determine what Congress had in mind highways of commerce, over which trade and identified by the Daniel Ball test) plus
when it defined ‘‘navigable waters’’ in travel are or may be conducted in the wetlands adjacent to those waters,
1972 as simply ‘‘the waters of the customary modes of trade and travel on
water. And they constitute navigable waters
minus historic use only waters. See 33
United States’’—and must do so in light U.S.C. 1344(g)(1).11 This suggests that
of the United States within the meaning of
of, inter alia, the policy directive to the Acts of Congress, in contradistinction Congress had in mind a broader scope
preserve and protect the states’ rights from the navigable waters of the States, when of waters subject to CWA jurisdiction
and responsibilities. they form in their ordinary condition by than waters traditionally understood as
Congress’ authority to regulate themselves, or by uniting with other waters, navigable. See SWANCC, 531 U.S. at
navigable waters derives from its power a continued highway over which commerce 171; Riverside Bayview, 474 U.S. at 138
to regulate the ‘‘channels of interstate is or may be carried on with other States or
n.11.
commerce’’ under the Commerce foreign countries in the customary modes in
which such commerce is conducted by water.
Thus, Congress intended to assert
Clause. Gibbons v. Ogden, 22 U.S. (9 federal authority over more than just
Wheat.) 1 (1824); see also United States 77 U.S. (10 Wall.) 557, 563 (1871). Over waters traditionally understood as
v. Lopez, 514 U.S. 549, 558–59 (1995) the years, this traditional test has been navigable, and Congress rooted that
(describing the ‘‘channels of interstate expanded to include waters that had
commerce’’ as one of three areas of been used in the past for interstate 10 The agencies recognize that individual member
congressional authority under the commerce, see Economy Light & Power statements are not a substitute for full congressional
Commerce Clause). The Supreme Court Co. v. United States, 256 U.S. 113, 123 intent, but they do help provide context for issues
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that were discussed during the legislative debates.
explained in SWANCC that the term (1921), and waters that are susceptible For a detailed discussion of the legislative history
‘‘navigable’’ indicates ‘‘what Congress for use with reasonable improvement, of the 1972 CWA amendments, see Albrecht &
had in mind as its authority for enacting see United States v. Appalachian Elec. Nickelsburg, Could SWANCC Be Right? A New Look
the Clean Water Act: its traditional Power Co., 311 U.S. 377, 407–10 (1940). at the Legislative History of the Clean Water Act,
jurisdiction over waters that were or had By the time the 1972 CWA 32 ELR 11042 (Sept. 2002).
11 For a detailed discussion of the legislative
been navigable in fact or which could amendments were enacted, the Supreme history supporting the enactment of section 404(g),
reasonably be so made.’’ 531 U.S. 159, Court had also made clear that Congress’ see Final Report of the Assumable Waters
172 (2001). The Court further explained authority over the channels of interstate Subcommittee (May 2017), App. F.
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authority in ‘‘its commerce power over ‘‘inseparably bound up with the ‘waters’ The Court dismissed the argument
navigation.’’ SWANCC, 531 U.S. at 168 of the United States.’’ Id. at 134. ‘‘This that the use of the abandoned ponds by
n.3. However, there must necessarily be holds true even for wetlands that are not migratory birds fell within the power of
a limit to that authority and to what the result of flooding or permeation by Congress to regulate activities that in the
water is subject to federal jurisdiction. water having its source in adjacent aggregate have a substantial effect on
How the agencies should exercise that bodies of open water.’’ Id. The Court interstate commerce, or that the targeted
authority has been the subject of dispute also noted that the agencies can use of the ponds as a municipal landfill
for decades, but the Supreme Court on establish categories of jurisdiction for was commercial in nature. Id. at 173.
three occasions has analyzed the issue adjacent wetlands. See id. at 135 n.9. Such arguments, the Court noted, raised
and provided some instructional The Supreme Court in Riverside ‘‘significant constitutional questions.’’
guidance. Bayview declined to decide whether Id. ‘‘Where an administrative
2. U.S. Supreme Court Precedent wetlands that are not adjacent to interpretation of a statute invokes the
navigable waters could also be regulated outer limits of Congress’ power, we
a. Adjacent Wetlands by the agencies. See id. at 124 n.2 & 131 expect a clear indication that Congress
In Riverside Bayview, the Supreme n.8. In SWANCC, however, the Supreme intended that result.’’ Id. at 172–73
Court considered the Corps’ assertion of Court analyzed a similar question in the (‘‘Congress does not casually authorize
jurisdiction over ‘‘low-lying, marshy context of an abandoned sand and administrative agencies to interpret a
land’’ immediately abutting a water gravel pit located some distance from a statute to push the limit of
traditionally understood as navigable on traditional navigable water, with congressional authority.’’). This is
the grounds that it was an ‘‘adjacent excavation trenches that ponded—some particularly true ‘‘where the
wetland’’ within the meaning of the only seasonally—and served as habitat administrative interpretation alters the
Corps’ then-existing regulations. 474 for migratory birds. 531 U.S. at 162–65. federal-state framework by permitting
U.S. at 124. The Court addressed the The Supreme Court rejected the federal encroachment upon a traditional
question whether non-navigable government’s stated rationale for state power.’’ Id. at 173; see also
wetlands may be regulated as ‘‘waters of asserting jurisdiction over these Atascadero State Hospital v. Scanlon,
the United States’’ on the basis that they ‘‘nonnavigable, isolated, intrastate 473 U.S. 234, 242–43 (1985) (finding
are ‘‘adjacent to’’ navigable-in-fact waters.’’ Id. at 171–72. In doing so, the that where Congress intends to alter the
waters and ‘‘inseparably bound up Supreme Court noted that Riverside ‘‘usual constitutional balance between
with’’ them because of their ‘‘significant Bayview upheld ‘‘jurisdiction over the States and the Federal Government,’’
effects on water quality and the aquatic wetlands that actually abutted on a it must make its intention to do so
ecosystem.’’ See id. at 131–35 & n.9. navigable waterway’’ because the ‘‘unmistakably clear in the language of
In analyzing the meaning of wetlands were ‘‘inseparably bound up the statute’’); Gregory v. Ashcroft, 501
adjacency, the Court captured the with the ‘waters’ of the United States.’’ U.S. 452, 460–61 (1991) (‘‘[The] plain
difficulty in determining where the Id. at 167.12 As summarized by the statement rule . . . acknowledg[es] that
limits of federal jurisdiction end, noting SWANCC majority: the States retain substantial sovereign
that the line is somewhere between powers under our constitutional
It was the significant nexus between the
open water and dry land: wetlands and ‘‘navigable waters’’ that
scheme, powers with which Congress
In determining the limits of its power to informed our reading of the CWA in does not readily interfere.’’). ‘‘Rather
regulate discharges under the Act, the Corps Riverside Bayview Homes. Indeed, we did not than expressing a desire to readjust the
must necessarily choose some point at which ‘‘express any opinion’’ on the ‘‘question of federal-state balance in this manner,
water ends and land begins. Our common authority of the Corps to regulate discharges Congress chose [in the CWA] to
experience tells us that this is often no easy of fill material into wetlands that are not ‘recognize, preserve, and protect the
task: The transition from water to solid adjacent to bodies of open water. . . . In primary responsibilities and rights of
ground is not necessarily or even typically an order to rule for [the Corps] here, we would States . . . to plan the development and
abrupt one. Rather, between open waters and have to hold that the jurisdiction of the Corps use . . . of land and water resources.
dry land may lie shallows, marshes, extends to ponds that are not adjacent to
mudflats, swamps, bogs—in short, a huge open water. But we conclude that the text of
. . .’’ SWANCC, 531 U.S. at 174
array of areas that are not wholly aquatic but the statute will not allow this. (quoting 33 U.S.C. 1251(b)). The Court
nevertheless fall far short of being dry land. therefore found no clear statement from
Where on this continuum to find the limit of Id. at 167–68 (internal citations Congress that it had intended to permit
‘‘waters’’ is far from obvious. omitted). That is because the text of federal encroachment on traditional
Id. at 132 (emphasis added). Within this section 404(a)—the permitting provision state power, and construed the CWA to
statement, the Supreme Court identifies at issue in the case—included the word avoid the significant constitutional
a basic principle for adjacent wetlands: ‘‘navigable’’ as its operative phrase, and questions related to the scope of federal
The limits of jurisdiction lie within the signaled a clear direction to the Court authority authorized therein. Id.
‘‘continuum’’ or ‘‘transition’’ ‘‘between that ‘‘Congress had in mind . . . its The Supreme Court considered the
open waters and dry land.’’ Observing traditional jurisdiction over waters that concept of adjacency again several years
that Congress intended the CWA ‘‘to were or had been navigable in fact or later in consolidated cases arising out of
regulate at least some waters that would which could reasonably be so made.’’ the Sixth Circuit. See Rapanos v. United
not be deemed ‘navigable,’ ’’ the Court Id. at 172. States, 547 U.S. 715 (2006). In one case,
therefore held that it is ‘‘a permissible the Corps had determined that wetlands
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12 For additional context, at oral argument during
interpretation of the Act’’ to conclude on three separate sites were subject to
Riverside Bayview, the government attorney
that ‘‘a wetland that actually abuts on a characterized the wetland at issue as ‘‘in fact an
CWA jurisdiction because they were
navigable waterway’’ falls within the adjacent wetland, adjacent—by adjacent, I mean it adjacent to ditches or man-made drains
‘‘definition of ‘waters of the United is immediately next to, abuts, adjoins, borders, that eventually connected to traditional
States.’ ’’ Id. at 133, 135. Thus, a whatever other adjective you might want to use, navigable waters several miles away
navigable waters of the United States.’’ Transcript
wetland that abuts a navigable water of Oral Argument at 16, United States v. Riverside
through other ditches, drains, creeks,
traditionally understood as navigable is Bayview Homes, Inc., 474 U.S. 121 (1985) (No. 84– and/or rivers. Id. at 719–20, 729. In
subject to CWA permitting because it is 701). another case, the Corps had asserted
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jurisdiction over a wetland separated waters’ that informed our reading of the Webster’s II, New Riverside University
from a man-made drainage ditch by a CWA in Riverside Bayview Homes.’ ’’). Dictionary (1994) (defining ‘‘abut’’ to
four-foot-wide man-made berm. Id. at The plurality also noted that ‘‘SWANCC mean ‘‘to border on’’ or ‘‘to touch at one
730. The ditch emptied into another rejected the notion that the ecological end or side of something’’), and indeed
ditch, which then connected to a creek, considerations upon which the Corps agreed with Justice Kennedy and the
and eventually connected to Lake St. relied in Riverside Bayview . . . Riverside Bayview Court that ‘‘[a]s long
Clair, a traditional navigable water, provided an independent basis for as the wetland is ‘adjacent’ to covered
approximately a mile from the parcel at including entities like ‘wetlands’ (or waters . . . its creation vel non by
issue. The berm was largely or entirely ‘ephemeral streams’) within the phrase inundation is irrelevant.’’ Id. at 751
impermeable, but may have permitted ‘the waters of the United States.’ n.13.13
occasional overflow from the wetland to SWANCC found such ecological Because physically disconnected
the ditch. Id. The Court, in a fractured considerations irrelevant to the question wetlands do not raise the same
opinion, vacated and remanded the whether physically isolated waters boundary-drawing concerns presented
Sixth Circuit’s decision upholding the come within the Corps’ jurisdiction.’’ Id. by actually abutting wetlands, the
Corps’ asserted jurisdiction over the at 741–42 (emphasis in original). plurality determined that the rationale
four wetlands at issue, with Justice Justice Kennedy disagreed with the in Riverside Bayview does not apply to
Scalia writing for the plurality and plurality’s determination that adjacency such features. The plurality stated that
Justice Kennedy concurring in the requires a ‘‘continuous surface ‘‘[w]etlands with only an intermittent,
judgment. Id. at 757 (plurality), 787 connection’’ to covered waters. Id. at physically remote hydrologic
(Kennedy, J.). 772. In reading the phrase ‘‘continuous connection to ‘waters of the United
The plurality determined that CWA surface connection’’ to mean a States’ do not implicate the boundary-
jurisdiction only extended to adjacent continuous ‘‘surface-water connection,’’ drawing problem of Riverside Bayview,
‘‘wetlands with a continuous surface id. at 776, and interpreting the and thus lack the necessary connection
connection to bodies that are ‘waters of plurality’s standard to include a to covered waters that we described as
the United States’ in their own right, so ‘‘surface-water-connection a ‘significant nexus’ in SWANCC[.]’’ Id.
that there is no clear demarcation requirement,’’ id. at 774, Justice at 742. The plurality supported this
between ‘waters’ and wetlands.’’ Id. at Kennedy stated that ‘‘when a surface- position by referring to the Court’s
742. The plurality then concluded that water connection is lacking, the treatment of isolated waters in SWANCC
‘‘establishing that wetlands . . . are plurality forecloses jurisdiction over as non-jurisdictional. Id. at 726, 741–42
covered by the Act requires two wetlands that abut navigable-in-fact (‘‘[W]e held that ‘nonnavigable, isolated,
findings: first, that the adjacent channel waters—even though such navigable intrastate waters’—which, unlike the
contains a ‘wate[r] of the United States,’ waters were traditionally subject to wetlands at issue in Riverside Bayview,
(i.e., a relatively permanent body of federal authority,’’ id. at 776, even after did not ‘actually abu[t] on a navigable
water connected to traditional interstate the Riverside Bayview Court ‘‘deemed it waterway,’—were not included as
navigable waters); and second, that the irrelevant whether ‘the moisture ‘waters of the United States.’ ’’). The
wetland has a continuous surface creating the wetlands . . . find[s] its plurality found ‘‘no support for the
connection with that water, making it source in the adjacent bodies of water,’’ inclusion of physically unconnected
difficult to determine where the ‘water’ id. at 772 (internal citations omitted). wetlands as covered ‘waters’ ’’ based on
ends and the ‘wetland’ begins.’’ Id. This is one reason why Justice Kennedy Riverside Bayview’s treatment of the
(alteration in original). stated that ‘‘Riverside Bayview’s Corps’ definition of adjacent. Id. at 746–
In order to reach the adjacency observations about the difficulty of 47; see also id. at 746 (‘‘[T]he Corps’
conclusion of this two-part test, the defining the water’s edge cannot be definition of ‘adjacent’ . . . has been
plurality interpreted the Riverside taken to establish that when a clear extended beyond reason.’’).
Bayview decision, and subsequent boundary is evident, wetlands beyond Concurring in the judgment, Justice
SWANCC decision characterizing that boundary fall outside the Corps’ Kennedy focused on the ‘‘significant
Riverside Bayview, as authorizing jurisdiction.’’ Id. at 773. nexus’’ between the adjacent wetlands
jurisdiction over wetlands that The plurality did not directly address and traditional navigable waters as the
physically abutted traditional navigable the precise distinction raised by Justice basis for determining whether a wetland
waters. Id. at 740–42. The plurality Kennedy, but did note in response that is a water subject to CWA jurisdiction:
focused on the ‘‘inherent ambiguity’’ the ‘‘Riverside Bayview opinion ‘‘It was the significant nexus between
described in Riverside Bayview in required’’ a ‘‘continuous physical wetlands and navigable waters . . . that
determining where on the continuum connection,’’ id. at 751 n.13 (emphasis informed our reading of the [Act] in
between open waters and dry land the added), and focused on evaluating Riverside Bayview Homes. Because such
scope of federal jurisdiction should end. adjacency between a ‘‘water’’ and a a nexus was lacking with respect to
Id. at 740. It was ‘‘the inherent wetland ‘‘in the sense of possessing a isolated ponds, [in SWANCC] the Court
difficulties of defining precise bounds to continuous surface connection that held that the plain text of the statute did
regulable waters,’’ id. at 741 n.10, creates the boundary-drawing problem not permit the Corps’ action.’’ Id. at 767
according to the plurality, that we addressed in Riverside Bayview.’’ Id. (internal quotations and citations
prompted the Court in Riverside at 757. The plurality also noted that its omitted). Justice Kennedy noted that the
Bayview to defer to the Corps’ inclusion standard includes a ‘‘physical- wetlands at issue in Riverside Bayview
of adjacent wetlands as ‘‘waters’’ subject connection requirement’’ between were ‘‘adjacent to [a] navigable-in-fact
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to CWA jurisdiction based on ecological wetlands and covered waters. Id. at 751 waterway[ ],’’ while the ‘‘ponds and
considerations. Id. at 740–41 (‘‘When n.13. In other words, the plurality
we characterized the holding of appeared to be more focused on the 13 The agencies’ Rapanos Guidance recognizes
Riverside Bayview in SWANCC, we abutting nature rather than the source of the plurality’s ‘‘continuous surface connection’’
referred to the close connection between water creating the wetlands at issue in does not refer to a continuous surface water
connection. See, e.g., Rapanos Guidance at 7 n.28
waters and the wetlands they gradually Riverside Bayview to describe the legal (‘‘A continuous surface connection does not require
blend into: ‘It was the significant nexus constructs applicable to adjacent surface water to be continuously present between
between the wetlands and ‘navigable wetlands, see id. at 747; see also the wetland and the tributary.’’).
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mudflats’’ considered in SWANCC Id. at 781–82. Kennedy also agree that the proximity
‘‘were isolated in the sense of being Justice Kennedy stated that, absent between the wetland and the tributary
unconnected to other waters covered by development of a more specific must be close. The plurality refers to
the Act.’’ Id. at 765–66. ‘‘Taken together, regulation, the Corps ‘‘must establish a that proximity as a ‘‘continuous surface
these cases establish that in some significant nexus on a case-by-case basis connection’’ or ‘‘continuous physical
instances, as exemplified by Riverside when it seeks to regulate wetlands based connection,’’ as demonstrated in
Bayview, the connection between a on adjacency to nonnavigable Riverside Bayview. Id. at 742, 751 n.13.
nonnavigable water or wetland and a tributaries. Given the potential Justice Kennedy recognized that ‘‘the
navigable water may be so close, or overbreadth of the Corps’ regulations, connection between a nonnavigable
potentially so close, that the Corps may this showing is necessary to avoid water or wetland and a navigable water
deem the water or wetland a ‘navigable unreasonable applications of the may be so close, or potentially so close,
water’ under the Act. In other instances, statute.’’ Id. at 782. Justice Kennedy that the Corps may deem the water or
as exemplified by SWANCC, there may explained that ‘‘wetlands possess the wetland a ‘navigable water’ under the
be little or no connection. Absent a requisite nexus, and thus come within Act.’’ Id. at 767. The second part of the
significant nexus, jurisdiction under the the statutory phrase ‘navigable waters,’ two-part tests established by the
Act is lacking.’’ Id. at 767. if the wetlands, either alone or in plurality and Justice Kennedy is
combination with similarly situated addressed in the next section.
According to Justice Kennedy, lands in the region, significantly affect
whereas the isolated ponds and the chemical, physical, and biological b. Tributaries
mudflats in SWANCC lack the integrity of other covered waters more The definition of tributaries was not
‘‘significant nexus’’ to navigable waters, readily understood as ‘navigable.’ ’’ Id. addressed in either Riverside Bayview or
it is the ‘‘conclusive standard for at 780. ‘‘Where an adequate nexus is SWANCC. And while the focus of
jurisdiction’’ based on ‘‘a reasonable established for a particular wetland, it Rapanos was on whether the Corps
inference of ecological interconnection’’ may be permissible, as a matter of could regulate wetlands adjacent to
between adjacent wetlands and administrative convenience or nonnavigable waters, the plurality and
navigable-in-fact waters that allows for necessity, to presume covered status for concurring opinions provide some
their categorical inclusion as waters of other comparable wetlands in the guidance on the regulatory status of
the United States. Id. at 780 (‘‘[T]he region.’’ Id. at 782. tributaries to navigable-in-fact waters.
assertion of jurisdiction for those In describing this significant nexus The plurality and Justice Kennedy
wetlands [adjacent to navigable-in-fact test, Justice Kennedy relied, in part, on both recognized that the jurisdictional
waters] is sustainable under the act by the overall objective of the CWA to scope of the CWA is not restricted to
showing adjacency alone.’’). Justice ‘‘restore and maintain the chemical, traditional navigable waters. See id. at
Kennedy surmised that it may be that physical, and biological integrity of the 731 (plurality) (‘‘[T]he Act’s term
the same rationale ‘‘without any inquiry Nation’s waters.’’ Id. at 779 (quoting 33 ‘navigable waters’ includes something
beyond adjacency . . . could apply U.S.C. 1251(a)). Justice Kennedy also more than traditional navigable
equally to wetlands adjacent to certain agreed with the plurality that waters.’’); id. at 767 (Justice Kennedy)
major tributaries,’’ noting that the Corps ‘‘environmental concerns provide no (‘‘Congress intended to regulate at least
could establish by regulation categories reason to disregard limits in the some waters that are not navigable in
of tributaries based on volume of flow, statutory text.’’ Id. at 778. With respect the traditional sense.’’). Both also agree
proximity to navigable waters, or other to wetlands adjacent to nonnavigable that federal authority under the Act is
factors that ‘‘are significant enough that tributaries, Justice Kennedy therefore not without limit. See id. at 731–32
wetlands adjacent to them are likely, in determined that ‘‘mere adjacency . . . is (plurality) (‘‘[T]he waters of the United
the majority of cases, to perform insufficient. A more specific inquiry, States . . . cannot bear the expansive
important functions for an aquatic based on the significant-nexus standard, meaning that the Corps would give it.’’);
system incorporating navigable waters.’’ is . . . necessary.’’ Id. at 786. Not id. at 778–79 (Justice Kennedy) (‘‘The
Id. at 780–81. However, ‘‘[t]he Corps’ requiring adjacent wetlands to possess a deference owed to the Corps’
existing standard for tributaries’’ significant nexus with navigable waters, interpretation of the statute does not
provided Justice Kennedy ‘‘no such Justice Kennedy noted, would allow a extend’’ to ‘‘wetlands’’ which ‘‘lie
assurance’’ to infer the categorical finding of jurisdiction ‘‘whenever alongside a ditch or drain, however
existence of a requisite nexus between wetlands lie alongside a ditch or drain, remote or insubstantial, that eventually
waters traditionally understood as however remote and insubstantial, that may flow into traditional navigable
navigable and wetlands adjacent to eventually may flow into traditional waters.’’).
nonnavigable tributaries. Id. at 781. That navigable waters. The deference owed With respect to tributaries
is because: the Corps’ interpretation of the statute specifically, both the plurality and
the breadth of [the tributary] standard— does not extend so far.’’ Id. at 778–79. Justice Kennedy focus in large part on
which seems to leave wide room for Based on the agencies’ review of this a tributary’s contribution of flow to, and
regulation of drains, ditches, and streams Supreme Court precedent, although the connection with, traditional navigable
remote from any navigable-in-fact water and plurality and Justice Kennedy waters. The plurality would include as
carrying only minor water volumes towards established different standards to waters of the United States ‘‘only
it—precludes its adoption as the determine the jurisdictional status of relatively permanent, standing or
determinative measure of whether adjacent wetlands adjacent to nonnavigable flowing bodies of water’’ and would
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wetlands are likely to play an important role tributaries, they both appear to agree in define such ‘‘waters’’ as including
in the integrity of an aquatic system principle that the determination must be streams, rivers, oceans, lakes and other
comprising navigable waters as traditionally bodies of waters that form geographical
made using a two-part test that
understood. Indeed, in many cases wetlands
adjacent to tributaries covered by this considers: (1) The proximity of the features, noting that all such ‘‘terms
standard might appear little more related to wetland to the tributary; and (2) the connote continuously present, fixed
navigable-in-fact waters than were the status of the tributary with respect to bodies of water . . . .’’ Id. at 732–33,
isolated ponds held to fall beyond the Act’s downstream traditional navigable 739. On the other hand, the plurality
scope in SWANCC. waters. The plurality and Justice would likely exclude ephemeral streams
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and related features. Id. at 733–34, 739, The agencies also can choose to regulate for discharging any pollutant into
741. Justice Kennedy would likely wetlands adjacent to the traditional waters covered by the Act without a
exclude some streams considered navigable waters and some tributaries, if permit. . . .’’ U.S. Army Corps of Eng’rs
jurisdictional under the plurality’s test. the wetlands are in close proximity to v. Hawkes Co., 136 S. Ct. 1807, 1812
Id. at 769 (noting that under the the tributaries, such as in the (2016); see also Sackett v. EPA, 566 U.S.
plurality’s test, ‘‘[t]he merest trickle, if transitional zone between open waters 120, 132–33 (2012) (Alito, J.,
continuous, would count as a ‘water’ and dry land. In the agencies’ view, it concurring) (‘‘[T]he combination of the
subject to federal regulation, while would not be consistent with Justice uncertain reach of the Clean Water Act
torrents thundering at irregular intervals Kennedy’s Rapanos opinion or the and the draconian penalties imposed for
through otherwise dry channels would Rapanos plurality opinion to regulate the sort of violations alleged in this case
not’’). wetlands adjacent to all tributaries, no still leaves most property owners with
In addition, both the plurality and matter how small or remote from little practical alternative but to dance
Justice Kennedy would likely include navigable water. The Court’s opinion in to the EPA’s tune.’’). As the Chief Justice
some intermittent streams as waters of SWANCC also calls into serious observed in Hawkes, ‘‘[i]t is often
the United States. See id. at 732–33 & question the agencies’ authority to difficult to determine whether a
n.5 (plurality); id. at 769–70 (Justice regulate nonnavigable, isolated, particular piece of property contains
Kennedy). The plurality noted that its intrastate waters that lack a sufficient waters of the United States, but there are
reference to ‘‘relatively permanent’’ connection to traditional navigable important consequences if it does.’’ 136
waters did ‘‘not necessarily exclude waters, and suggests that the agencies S. Ct. at 1812; see also id. at 1816–17
streams, rivers, or lakes that might dry should avoid regulatory interpretations (Kennedy, J., concurring) (‘‘[T]he reach
up in extraordinary circumstances, such of the CWA that raise constitutional and systemic consequences of the Clean
as drought,’’ or ‘‘seasonal rivers, which questions regarding the scope of their Water Act remain a cause for concern,’’
contain continuous flow during some statutory authority. The agencies can, and the Act ‘‘continues to raise
months of the year but no flow during however, regulate certain waters by troubling questions regarding the
dry months . . . .’’ Id. at 732 n.5 category, which could improve Government’s power to cast doubt on
(emphasis in original). However, neither regulatory predictability and certainty the full use and enjoyment of private
the plurality nor Justice Kennedy and ease administrative burden while property throughout the Nation.’’).
defined with precision where to draw still effectuating the purposes of the Act. Given the significant civil and criminal
the line. Nevertheless, the plurality In developing a clear and predictable penalties associated with the CWA, it is
provided that ‘‘navigable waters’’ must regulatory framework, the agencies also important for the agencies to promote
have ‘‘at bare minimum, the ordinary must respect the primary regulatory certainty while striving to
presence of water,’’ id. at 734, and responsibilities and rights of States and provide fair and predictable notice of
Justice Kennedy noted that the Corps Tribes to regulate their land and water the limits of federal jurisdiction. See,
can identify by regulation categories of resources. See 33 U.S.C. 1251(b), 1370. e.g., Sessions v. Dimaya, 138 S. Ct.
tributaries based on volume of flow, The oft-quoted objective of the CWA to 1204, 1223–25 (2018) (Gorsuch, J.,
proximity to navigable waters, or other ‘‘restore and maintain the chemical, concurring in part and concurring in the
factors that ‘‘are significant enough that physical, and biological integrity of the judgment) (characterizing fair notice as
wetlands adjacent to them are likely, in Nation’s waters,’’ id. at 1251(a), must be possibly the most fundamental of the
the majority of cases, to perform implemented in a manner consistent protections provided by the
important functions for an aquatic with Congress’ policy directives to the Constitution’s guarantee of due process,
system incorporating navigable waters.’’ agencies. The Supreme Court long ago and stating that vague laws are an
Id. at 780–81. And both the plurality recognized the distinction between exercise of ‘‘arbitrary power . . . leaving
and Justice Kennedy agreed that the federal waters traditionally understood the people in the dark about what the
Corps’ assertion of jurisdiction over the as navigable and waters ‘‘subject to the law demands and allowing prosecutors
wetlands adjacent to the ‘‘drains, control of the States.’’ The Daniel Ball, and courts to make it up’’).
ditches, and streams remote from any 77 U.S. (10 Wall.) 557, 564–65 (1871).
navigable-in-fact water,’’ id. at 781 Over a century later, the Supreme Court C. Proposed Reasons for Repeal
(Kennedy), at issue in Rapanos raised in SWANCC reaffirmed the State’s The agencies’ proposal is based on
significant jurisdictional questions. Id. ‘‘traditional and primary power over our view that regulatory certainty may
at 737–38 (plurality); id. at 781–82 land and water use.’’ 531 U.S. at 174; be best served by repealing the 2015
(Kennedy). accord Rapanos, 547 U.S. at 738 (Scalia, Rule and recodifying the preexisting
J., plurality opinion). Ensuring that scope of CWA jurisdiction. Specifically,
3. Principles and Considerations the agencies are concerned that rather
States and Tribes retain authority over
From this legal foundation, a few their land and water resources pursuant than achieving their stated objectives of
important principles emerge from which to CWA section 101(b) and section 510 increasing regulatory predictability and
the agencies can evaluate their helps carry out the overall objective of consistency under the CWA, retaining
authorities. First, the power conferred the CWA, and ensures that the agencies the 2015 Rule creates significant
on the agencies to regulate the waters of are giving full effect and consideration uncertainty for agency staff, regulated
the United States is grounded in to the entire structure and function of entities, and the public, which is
Congress’ commerce power over the Act, including Congress’ intent as compounded by court decisions that
navigation. The agencies can choose to reflected in dozens of non-regulatory have increased litigation risk and cast
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regulate beyond waters more grant, research, nonpoint source, doubt on the legal viability of the rule.
traditionally understood as navigable groundwater, and watershed planning To provide for greater regulatory
given the broad purposes of the CWA, programs to assist the states in certainty, the agencies propose to revert
including some tributaries to those controlling pollution in the nation’s to the pre-2015 regulations, a regulatory
traditional navigable waters, but must waters, not just its navigable waters. regime that is more familiar to and
provide a reasonable basis grounded in Further, the agencies are cognizant better-understood by the agencies,
the language and structure of the Act for that the ‘‘Clean Water Act imposes States, Tribes, local governments,
determining the extent of jurisdiction. substantial criminal and civil penalties regulated entities, and the public.
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Further, as a result of the agencies’ of the agencies in balancing the science, found that the plaintiff-States have a fair
review and reconsideration of their the agencies’ expertise, and the chance of success on the merits of their
statutory authority and in light of the regulatory goals of providing clarity to procedural claims that the agencies
court rulings against the 2015 Rule that the public while protecting the failed to comply with APA requirements
have suggested that the agencies’ environment and public health, in promulgating the rule. Id. at 1056–57.
interpretation of the ‘‘significant nexus’’ consistent with the law.’’ Id. at 37065. The Southern District of Georgia also
standard as applied in the 2015 Rule Since then, developments in the preliminarily enjoined the 2015 Rule,
was expansive and does not comport litigation against the 2015 Rule and holding that the State plaintiffs had
with and accurately implement the concerns raised since the rule’s
demonstrated ‘‘a likelihood of success
limits on jurisdiction reflected in the promulgation indicate that maintaining
on their claims that the [2015] WOTUS
CWA and decisions of the Supreme the 2015 Rule would produce
Rule was promulgated in violation of
Court, the agencies are also concerned substantial uncertainty and confusion
the CWA and the APA.’’ Georgia v.
that the 2015 Rule lacks sufficient among state and federal regulators and
statutory basis. The agencies are enforcement officials, the regulated Pruitt, No. 15–cv–79, 2018 U.S. Dist.
proposing to conclude in the alternative public, and other interested LEXIS 97223, at *14 (S.D. Ga. June 8,
that, at a minimum, the interpretation of stakeholders. To provide for greater 2018) (‘‘Georgia’’) (granting preliminary
the statute adopted in the 2015 Rule is regulatory certainty, the agencies injunction). The court determined that
not compelled, and a different policy propose to repeal the 2015 Rule and the 2015 Rule likely failed to meet the
balance can be appropriate. restore a longstanding regulatory standard expounded in SWANCC and
Considering the substantial framework that is more familiar to and Rapanos, and that the rule was likely
uncertainty associated with the 2015 better-understood by the agencies, our fatally defective because it ‘‘allows the
Rule resulting from its legal challenges, co-regulators, and regulated entities, Agencies to regulate waters that do not
and the substantial experience the until the agencies propose and finalize bear any effect on the ‘chemical,
agencies and others possess with the a replacement definition. physical, and biological integrity’ of any
longstanding regulatory framework navigable-in-fact water.’’ Id. at *17–18.
currently being administered by the a. Litigation to Date The court also held that the plaintiffs
agencies, the agencies conclude that As noted above, the 2015 Rule has ‘‘have demonstrated a likelihood of
clarity, predictability, and consistency been challenged in legal actions across success on both of their claims under
may be best served by repealing the multiple district courts, in which the APA’’ that the 2015 Rule ‘‘is
2015 Rule and thus are proposing to do plaintiffs have raised a number of arbitrary and capricious’’ and ‘‘that the
so. The agencies may still propose substantive and procedural claims final rule is not a logical outgrowth of
changes to the definition of ‘‘waters of against the rule. Petitions for review the proposed rule.’’ Id. at *18.
the United States’’ in a future were also filed in multiple courts of These rulings indicate that
rulemaking. appeals and were consolidated in the substantive or procedural challenges to
Further, the agencies are concerned U.S. Court of Appeals for the Sixth the 2015 Rule are likely to be successful,
that certain findings and assumptions Circuit. To date, all three of the courts particularly claims that the rule is not
supporting adoption of the 2015 Rule that substantively have considered the authorized under the CWA and was
were not correct, and that these 2015 Rule—the Sixth Circuit, the promulgated in violation of the APA. A
conclusions, if erroneous, may District of North Dakota, and the successful challenge to the 2015 Rule
separately justify repeal of the 2015 Southern District of Georgia—have could result in a court order vacating
Rule. The agencies are concerned and found that petitioners seeking to the rule in all or part, in all or part of
seek comment on whether the 2015 Rule overturn the rule are likely to succeed
the country, and potentially resulting in
significantly expanded jurisdiction over on the merits of at least some of their
different regulatory regimes being in
the preexisting regulatory program, as claims against the rule.
In the Sixth Circuit, the court granted effect in different parts of the country,
implemented by the agencies, and which would likely lead to substantial
whether that expansion altered State, a nationwide stay of the 2015 Rule after
finding, among other factors, that the regulatory confusion, uncertainty, and
tribal, and local government
petitioners showed a ‘‘substantial inconsistency.
relationships in implementing CWA
programs. The agencies therefore possibility of success on the merits’’ of Notably, the agencies face an
propose to repeal the 2015 Rule in order their claims against the 2015 Rule, increasing risk of a court order vacating
to restore those preexisting relationships including claims that the rule was the 2015 Rule. The District of North
and better serve the balance of inconsistent with Justice Kennedy’s Dakota is proceeding to hear the merits
authorities envisioned in CWA section opinion in Rapanos and that the rule’s of the plaintiff-States’ claims against the
101(b). distance limitations were not 2015 Rule in that case, and the plaintiff-
substantiated by specific scientific States in the Southern District of
1. The 2015 Rule Fails To Achieve support. In re EPA, 803 F.3d 804, 807 Georgia have requested a similar merits-
Regulatory Certainty (6th Cir. 2015). briefing schedule. See Scheduling
The agencies are proposing to repeal The District of North Dakota made Order, North Dakota v. EPA, No. 15–cv–
the 2015 Rule because it does not similar findings in issuing a preliminary 59 (D.N.D. May 2, 2018); Response to
appear to achieve one of its primary injunction against the 2015 Rule. There, Defendants’ Updated Response to
goals of providing regulatory certainty the court found that the plaintiff-States Plaintiff States’ Motion for Preliminary
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and consistency. When promulgating are ‘‘likely to succeed on the merits of Injunction at 11–12, Georgia, No. 15–
the 2015 Rule, the agencies concluded their claim’’ that the rule violated the cv–79 (S.D. Ga. May 29, 2018). Although
the rule would ‘‘increase CWA program congressional grant of authority to the the applicability date rule ensures that
predictability and consistency by agencies under the CWA because the the 2015 Rule will not go into effect
clarifying the scope of ‘waters of the rule ‘‘likely fails’’ to meet Justice until February 6, 2020, the prospect of
United States’ protected under the Act.’’ Kennedy’s significant nexus test. North a court order vacating the 2015 Rule
80 FR 37054. The agencies stated that Dakota v. EPA, 127 F. Supp. 3d 1047, creates additional regulatory
the 2015 ‘‘rule reflect[ed] the judgment 1055–56 (D.N.D. 2015). The court also uncertainty.
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b. Stakeholder Confusion Regarding the indecipherable explanation’’ of the For example, in the Southern District of
Scope of the 2015 Rule and Extent of definition of ‘‘waters of the United Georgia, the State of Indiana has
Federal CWA Jurisdiction States’’ that has caused confusion and asserted that the 2015 Rule’s definition
Statements made in the litigation uncertainty as to the extent of of ‘‘waters of the United States’’ is
against the 2015 Rule and in comments jurisdiction that can be asserted by ‘‘vague’’ and that the rule ‘‘imposes . . .
regarding the 2015 Rule indicate that federal, state and local authorities.19 unclear regulatory requirements that
The agencies have received comments will result in an inefficient use of
there has been substantial disagreement
from numerous other individuals and limited regulatory resources.’’ 25 In
and confusion as to the scope of the
entities expressing confusion and particular, the State asserts concerns
2015 Rule and the extent of federal
concern about the extent of federal CWA that implementing the 2015 Rule will
CWA jurisdiction more broadly. In the
jurisdiction asserted under the 2015 divert resources by ‘‘[d]emanding the
Sixth Circuit, for example, State
Rule, and the agencies are continuing to time and attention of regulators to make
petitioners asserted that the 2015 Rule
review and consider these comments. the now-difficult determination of when
covers waters outside the scope of the
CWA pursuant to SWANCC and c. Impact on State Programs and whether a feature is a WOTUS’’ and
‘‘[g]enerating unnecessary
Rapanos and ‘‘extends jurisdiction to Like other commenters on the administrative appeals and lawsuits to
virtually every potentially wet area of proposal to the 2015 Rule, some States resolve jurisdictional disputes.’’ 26
the country.’’ 14 Industry petitioners expressed confusion regarding the scope
contended that the rule’s ‘‘uncertain of the proposal and, uniquely, the d. Agency Experience With the 1986
standards are impossible for the public potential impacts of that uncertainty on Regulations
to understand or the agencies to apply States’ ability to implement CWA The agencies have been implementing
consistently.’’ 15 In contrast, programs. Though some States have the pre-2015 regulations (hereinafter
environmental petitioners found that stated that the 2015 Rule ‘‘more clearly referred to as the ‘‘1986 regulations’’)
SWANCC and Rapanos led to identifies what types of waters would be almost uninterruptedly since 1986.
widespread confusion over the scope of considered jurisdictional,’’ 20 others Corps staff are trained on making
the CWA and that the pre-2015 assert that the extent of CWA jurisdictional determinations in the
regulatory regime could theoretically jurisdiction under the rule remained field and through national webinars and
apply to ‘‘almost all waters and ‘‘fuzzy’’ and unclear.21 Certain States classroom or field-based trainings. From
wetlands across the country.’’ 16 These noted that this uncertainty could ‘‘create June 2007 through June 2018, the Corps
petitioners asserted that the 2015 Rule time delays in obtaining permits which issued 241,857 27 approved
violated the CWA by failing to cover previously were not required’’ 22 and jurisdictional determinations (AJDs)
certain waters, including waters that ‘‘result in increased costs to the State under their 1986 regulations, as
may possess a ‘‘significant nexus’’ to and other private and public interests, informed by applicable Supreme Court
traditional navigable waters.17 Whether along with decreased regulatory precedent and the agencies’ guidance.
such comments are accurate or not, they efficiency.’’ 23 One State suggested that Through over 30 years of experience,
indicate continued widespread even if the 2015 Rule established greater the agencies have developed significant
disagreement and confusion over the regulatory clarity, the rule’s case-by-case technical expertise with the 1986
meaning of the 2015 Rule and extent of determinations could result in regulations and have had the
jurisdiction it entails. permitting delays when a jurisdictional opportunity to refine the application of
Some comments received on the July determination is required.24 the rules through guidance and the
27, 2017 NPRM also demonstrate Similar concerns have been raised in agencies’ experience and federal court
continued confusion over the scope and the litigation challenging the 2015 Rule. decisions. Indeed, the 1986 regulations
various provisions of the 2015 Rule. For have been the subject of a wide body of
example, one commenter found that the 19 See comments submitted by Skagit County
case law, including three significant
rule’s definitions of ‘‘adjacent,’’ Dike, Drainage and Irrigation District No. 12 and U.S. Supreme Court decisions 28 and
Skagit County Dike District No. 1 (Sept. 27, 2017)
‘‘significant nexus’’ and other key terms (Docket ID: EPA–HQ–OW–2017–0203–11709), dozens of cases in federal district courts
lack clarity and thus lead to regulatory available at https://www.regulations.gov/ and courts of appeals that have
uncertainty.18 This same commenter document?D=EPA-HQ-OW-2017-0203-11709. addressed the scope of analysis
20 See, e.g., comments submitted by State of
contended that the rule could raise required. Since 1986, the agencies have
Washington, Department of Ecology (Nov. 13, 2014)
constitutional concerns related to the (Docket ID: EPA–HQ–OW–2011–0880–13957),
issued numerous memoranda, guidance,
appropriate scope of federal authority available at https://www.regulations.gov/ and question-and-answer documents
and encouraged the agencies to document?D=EPA-HQ-OW-2011-0880-13957. explaining and clarifying these
21 See, e.g., comments submitted by State of
undertake a new rulemaking to more regulations.29
Oklahoma (Nov. 14, 2014) (Docket ID: EPA–HQ– Given the longstanding nature and
clearly articulate the extent of federal OW–2011–0880–14625), available at https://
CWA authority. Another commenter www.regulations.gov/document?D=EPA-HQ-OW- history of the 1986 regulations, this
echoed these concerns, alleging that the 2011-0880-14625; see also comments submitted by
2015 Rule resulted in a ‘‘vague and National Association of Counties (Nov. 14, 2014) 25 Statement of Bruno L. Pigott, Georgia, No. 15–
(Docket ID: EPA–HQ–OW–2011–0880–15081), cv–79 (S.D. Ga. July 21, 2015).
available at https://www.regulations.gov/ 26 Id.
14 Opening Brief of State Petitioners at 15, 61, In
document?D=EPA-HQ-OW-2011-0880-15081. 27 U.S. Army Corps of Engineers, OMBIL
re EPA, No. 15–3751 (6th Cir. Nov. 1, 2016). 22 See comments submitted by State of Utah,
15 Opening Brief for the Business & Municipal
Regulatory Module (June 5, 2018).
Governor’s Office (Nov. 14, 2014) (Docket ID: EPA– 28 Riverside Bayview, 474 U.S. 121 (1985);
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Petitioners, In re EPA, No. 15–3751 (6th Cir. Nov. HQ–OW–2011–0880–16534), available at https:// SWANCC, 531 U.S. 159 (2001); Rapanos, 547 U.S.
1, 2016). www.regulations.gov/document?D=EPA-HQ-OW- 715 (2006).
16 Brief of Conservation Groups at 11, In re EPA,
2011-0880-16534. 29 The Corps maintains many of these documents
No. 15–3751 (6th Cir. Nov. 1, 2016). 23 See comments submitted by Wyoming
on its public website, available at https://
17 See, e.g., id. at 22, 43.
Department of Environmental Quality (Nov. 14, www.usace.army.mil/Missions/Civil-Works/
18 See comments submitted by Oregon 2014) (Docket ID: EPA–HQ–OW–2011–0880– Regulatory-Program-and-Permits/Related-
Cattlemen’s Association (July 27, 2017) (Docket ID: 16393), available at https://www.regulations.gov/ Resources/CWA-Guidance/. The EPA maintains
EPA–HQ–OW–2017–0203–0039), available at document?D=EPA-HQ-OW-2011-0880-16393. many of these documents as well; see also https://
https://www.regulations.gov/document?D=EPA-HQ- 24 See comments submitted by State of www.epa.gov/wotus-rule/about-waters-united-
OW-2017-0203-0039. Washington, Department of Ecology, supra note 20. states.
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regulatory regime is more familiar to the physical, and biological integrity of flooding and pollutant contamination
agencies, co-regulators, and regulated other covered waters more readily from affecting downstream waters.’’ 80
entities. For this reason, as between the understood as ‘navigable.’ ’’ 547 U.S. at FR 37063. The 2015 Rule thus
2015 Rule and the 1986 regulations, the 780. The opinion did not expressly concluded that ‘‘[a] water has a
1986 regulations (as informed by define the relevant ‘‘region’’ or what significant nexus when any single
applicable Supreme Court precedent was meant by ‘‘similarly situated,’’ but function or combination of functions
and the agencies’ guidance) would it is reasonable to presume that that the performed by the water, alone or
appear to provide for greater regulatory Justice did not mean ‘‘similarly together with similarly situated waters
predictability, consistency, and situated’’ to be synonymous with ‘‘all’’ in the region, contributes significantly
certainty, and the agencies seek public waters in a region. The agencies’ to the chemical, physical, or biological
comment on this issue. Though the Rapanos Guidance, for example, had integrity of the nearest [primary] water.’’
agencies acknowledge that the 1986 interpreted the term ‘‘similarly situated’’ Id. at 37106. The ‘‘term ‘in the region’
regulations have posed certain more narrowly to ‘‘include all wetlands means the watershed that drains to the
implementation difficulties and were adjacent to the same tributary.’’ 30 ‘‘A nearest [primary] water.’’ Id.
the subject of court decisions that had tributary . . . is the entire reach of the An examination of all of the waters in
the effect of narrowing their scope, the stream that is of the same order (i.e., ‘‘the watershed’’ of ‘‘the nearest
longstanding nature of the regulatory from the point of confluence, where two [primary] water’’ under the 2015 Rule
regime—coupled with the agencies’ and lower order streams meet to form the therefore may have materially
others’ extensive experience with the tributary, downstream to the point such broadened the scope of aggregation that
regulatory scheme—make it preferable tributary enters a higher order determines jurisdiction in a ‘‘significant
to the regulatory uncertainty posed by stream).’’ 31 Thus, under the agencies’ nexus’’ inquiry for waters not
the 2015 Rule. 2008 guidance, ‘‘where evaluating categorically jurisdictional from the
significant nexus for an adjacent focus in the proposed rule on waters
2. The 2015 Rule May Exceed the
wetland, the agencies will consider the ‘‘located sufficiently close together or
Agencies’ Authority Under the CWA
flow characteristics and functions sufficiently close to a ‘water of the
The agencies are concerned that the performed by the tributary to which the United States’ so that they can be
2015 Rule exceeded EPA’s authority wetland is adjacent along with the evaluated as a single landscape unit.’’
under the CWA by adopting an functions performed by the wetland and 79 FR 22263. The agencies in finalizing
expansive interpretation of the all other wetlands adjacent to that the rule viewed the scientific literature
‘‘significant nexus’’ standard that covers tributary. This approach reflects the through a broader lens as ‘‘the effect of
waters outside the scope of the Act and agencies’ interpretation of Justice landscape position on the strength of
stretches the significant nexus standard Kennedy’s term ‘similarly situated’ to the connection to the nearest ‘water of
so far as to be inconsistent with include all wetlands adjacent to the the United States,’ ’’ and that ‘‘relevant
important aspects of Justice Kennedy’s same tributary. . . . Interpreting the factors influencing chemical
opinion in Rapanos, even though this phrase ‘similarly situated’ to include all connectivity include hydrologic
opinion was identified as the basis for wetlands adjacent to the same tributary connectivity . . . , surrounding land
the significant nexus standard is reasonable because such wetlands are use and land cover, the landscape
articulated in the 2015 Rule. In physically located in a like manner (i.e., setting, and deposition of chemical
particular, the agencies are concerned lying adjacent to the same tributary).’’ 32 constituents (e.g., acidic deposition).’’
that the 2015 Rule took an expansive The 2015 Rule departed from this 80 FR 37094. The agencies are
reading of Justice Kennedy’s significant interpretation of ‘‘similarly situated’’ concerned that this important change in
nexus test and exceeds the agencies’ wetlands in a ‘‘region,’’ including the interpretation of ‘‘similarly situated
authority under the Act. applying it to other waters, not only waters’’ from the proposed 2015 Rule
As expounded in Rapanos, Justice wetlands, that were not already and the 2008 Rapanos Guidance may
Kennedy’s significant nexus standard is categorically jurisdictional as tributaries not be explainable by the scientific
a test intended to limit federal or adjacent waters. The proposed rule, literature, including the Connectivity
jurisdiction due to the breadth of the for example, stated that ‘‘[o]ther waters,
Corps’ then-existing standard for Report 33 cited throughout the preamble
including wetlands, are similarly to the 2015 Rule, in light of the
tributaries and in order to ‘‘prevent[ ] situated when they perform similar
problematic applications of the statute.’’ agencies’ view at the time that ‘‘[t]he
functions and are located sufficiently scientific literature does not use the
547 U.S. at 783. ‘‘Given the potential close together or sufficiently close to a
overbreadth of the Corps’ [1986] term ‘significant’ as it is defined in a
‘water of the United States’ so that they legal context.’’ 80 FR 37062. The
regulations,’’ Justice Kennedy found can be evaluated as a single landscape
that the showing of a significant nexus agencies solicit comment on whether
unit with regard to their effect on the the agencies’ justification for the 2015
‘‘is necessary to avoid unreasonable chemical, physical, or biological
applications of the statute.’’ Id. at 782. Rule’s interpretation of ‘‘similarly
integrity of a [primary] water.’’ 79 FR situated’’ with reference to an entire
The agencies are concerned, upon 22263 (April 21, 2014). The 2015 Rule
further consideration of the 2015 Rule, watershed for purposes of waters not
took it a step further and stated that ‘‘the categorically jurisdictional relied on the
that the significant nexus standard downstream health of larger
articulated in that rule could lead to scientific literature without due regard
downstream waters is directly related to for the restraints imposed by the statute
similar unreasonable applications of the the aggregate health of waters located
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CWA. and case law, and whether this
upstream, including waters such as interpretation of Justice Kennedy’s
Justice Kennedy wrote that adjacent wetlands that may not be hydrologically
‘‘wetlands possess the requisite nexus, significant nexus standard is a reason, at
connected but function together to a minimum because of the legal risk it
and thus come within the statutory ameliorate the potential impacts of
phrase ‘navigable waters,’ if the 33 U.S. EPA. Connectivity of Streams and
wetlands, either alone or in combination 30 Rapanos Guidance at 8. Wetlands to Downstream Waters: A Review and
with similarly situated lands in the 31 Id. at 10. Synthesis of the Scientific Evidence (Jan. 2015)
region, significantly affect the chemical, 32 Id. (EPA/600/R–14/475F).
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creates, to repeal the 2015 Rule. As not comport with the CWA and Justice The Connectivity Report also recognizes
discussed, the 2015 Rule included Kennedy’s statement in Rapanos that that ‘‘areas that are closer to rivers and
distance-based limitations that were not ‘‘environmental concerns provide no streams have a higher probability of
specified in the proposal. In light of reason to disregard limits in the being connected than areas farther
this, the agencies also solicit comment statutory text.’’ See 547 U.S. at 778. In away.’’ Connectivity Report at ES–4.
on whether these distance-based particular, the agencies are mindful that Yet, the SAB observed that ‘‘[t]he
limitations mitigated or affected the the Southern District of Georgia’s Report is a science, not policy,
agencies’ change in interpretation of preliminary injunction of the 2015 Rule document that was written to
similarly situated waters in the 2015 was based in part on the court’s holding summarize the current understanding of
Rule. that the 2015 Rule likely is flawed for connectivity or isolation of streams and
The agencies are also concerned that the same reason as the Migratory Bird wetlands relative to large water bodies
the 2015 Rule does not give sufficient Rule: ‘‘the WOTUS Rule asserts that, such as rivers, lakes, estuaries, and
effect to the term ‘‘navigable’’ in the standing alone, a significant ‘biological oceans.’’ 37 ‘‘The SAB also
CWA. See South Carolina v. Catawba effect’—including an effect on ‘life cycle recommended that the agencies clarify
Indian Tribe, 476 U.S. 498, 510 n.22 dependent aquatic habitat[s]’—would in the preamble to the final rule that
(1986) (‘‘It is our duty to give effect, if place a water within the CWA’s ‘significant nexus’ is a legal term, not a
possible, to every clause and word of a jurisdiction. Thus, this WOTUS Rule scientific one.’’ 80 FR 37065. And in
statute[.]’’ (quoting United States v. will likely fail for the same reason that issuing the 2015 Rule, the agencies
Menasche, 348 U.S. 528, 538–39 (1955)) the rule in SWANCC failed.’’ Georgia, stated, ‘‘the science does not provide a
(internal quotation marks omitted)). 2018 U.S. Dist. LEXIS 97223, at *18 precise point along the continuum at
Justice Kennedy’s concurring opinion in (quoting 33 CFR 328.3(c)(5)). The which waters provide only speculative
Rapanos, on which the 2015 Rule relied agencies solicit comment on whether or insubstantial functions to
heavily for its basis, recognized the term the 2015 Rule is flawed in the same downstream waters.’’ Id. at 37090.
‘‘navigable’’ must have ‘‘some manner as the Migratory Bird Rule, The agencies now believe that they
importance’’ and, if that word has any including whether the 2015 Rule raises previously placed too much emphasis
meaning, the CWA cannot be significant constitutional questions on the information and conclusions of
interpreted to ‘‘permit federal regulation similar to the questions raised by the the Connectivity Report when setting
whenever wetlands lie along a ditch or Migratory Bird Rule as discussed by the jurisdictional lines in the 2015 Rule,
drain, however remote and Supreme Court in SWANCC. relying on its environmental
insubstantial, that eventually may flow Moreover, the 2015 Rule relied on a conclusions in place of interpreting the
into traditional navigable waters.’’ scientific literature review—the statutory text and other indicia of
Rapanos, 547 U.S. at 778–79 (Kennedy, Connectivity Report—to support Congressional intent to ensure that the
J., concurring in judgment). When exerting federal jurisdiction over certain agencies’ regulations comport with their
interpreting the Rapanos decision and waters based on nine enumerated statutory authority to regulate. This is of
its application for determining the scope functions. See 80 FR 37065 (‘‘the particular concern to the agencies today
of CWA jurisdiction in 2008, the agencies interpret the scope of ‘waters of with respect to the agencies’ broad
agencies wrote ‘‘[p]rincipal the United States’ protected under the application of Justice Kennedy’s phrase
considerations when evaluating CWA based on the information and ‘‘similarly situated lands. ’’ As
significant nexus include the volume, conclusions in the [Connectivity] discussed previously, the agencies took
duration, and frequency of the flow of Report’’). The report notes that an expansive reading of this phrase, in
water in the tributary and the proximity connectivity ‘‘occur[s] on a continuum part based on ‘‘one of the main
of the tributary to a traditional navigable or gradient from highly connected to conclusions of the [Connectivity Report]
water.’’ 34 The agencies are considering highly isolated,’’ and ‘‘[t]hese variations . . . that the incremental contributions
whether the 2015 Rule’s definitions of in the degree of connectivity are a of individual streams and wetlands are
‘‘tributary’’ and ‘‘adjacent’’ were so critical consideration to the ecological cumulative across entire watersheds,
broad as to eliminate consideration of integrity and sustainability of and their effects on downstream waters
these factors in a manner consistent downstream waters.’’ Id. at 37057. In its should be evaluated within the context
with Justice Kennedy’s opinion and the review of a draft version of the of other streams and wetlands in that
CWA. Connectivity Report, EPA’s Science watershed,’’ see 80 FR 37066. Yet,
The 2015 Rule stated that the agencies Advisory Board (‘‘SAB’’) noted, Justice Kennedy observed in Rapanos
assessed ‘‘the significance of the nexus’’ ‘‘[s]patial proximity is one important that what constitutes a ‘‘significant
to navigable water ‘‘in terms of the determinant of the magnitude, nexus’’ to the waters of the United
CWA’s objective to ‘restore and frequency and duration of connections States is not a solely scientific question
maintain the chemical, physical, and between wetlands and streams that will and that it cannot be determined by
biological integrity of the Nation’s ultimately influence the fluxes of water, environmental effects alone. See, e.g.,
waters.’ ’’ 80 FR 37056 (quoting 33 materials and biota between wetlands 547 U.S. at 777–78 (noting that although
U.S.C. 1251(a)). Under the 2015 Rule, a and downstream waters.’’ 35 ‘‘Wetlands ‘‘[s]cientific evidence indicates that
significant nexus may be established by wetlands play a critical role in
that are situated alongside rivers and
an individual water or by collectively controlling and filtering runoff . . .
their tributaries are likely to be
considering ‘‘similarly situated’’ waters environmental concerns provide no
connected to those waters through the
across a ‘‘region,’’ defined as ‘‘the reason to disregard limits in the
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exchange of water, biota and chemicals.
watershed that drains to the nearest statutory text’’ (citations omitted)). This
As the distance between a wetland and
[primary] water identified.’’ Id. at includes how Congress’ use of the term
a flowing water system increases, these
37106. The agencies are now concerned ‘‘navigable’’ in the CWA and how the
connections become less obvious.’’ 36
that this broad reliance on biological policies embodied in section 101(b)
functions, such as the provision of life 35 Science Advisory Board, U.S. EPA. Review of
should inform this analysis. Justice
cycle dependent aquatic habitat, may the EPA Water Body Connectivity Report at 60 (Oct. Kennedy wrote that ‘‘the Corps deems a
17, 2014).
34 Rapanos Guidance at 10. 36 Id. at 55. 37 Id. at 2.
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![32242 Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules
water a tributary if it feeds into a The 2015 Rule thus covers ephemeral jurisdictional. These depressions are
traditional navigable water (or a washes that flow only in response to located within 4,000 feet of Poplar
tributary thereof) and possesses an infrequent precipitation events if they Creek, a tributary to the Fox River, and
ordinary high-water mark,’’ defined as a meet the definition of tributary. These may have the ability to store runoff or
‘‘line on the shore established by the results, particularly that adjacent contribute other ecological functions in
fluctuations of water and indicated by waters, broadly defined, are the watershed. Thus, they would be
[certain] physical characteristics.’’ Id. at categorically jurisdictional no matter subject to, and might satisfy, a
781. This ‘‘may well provide a how small or frequently flowing the significant nexus determination under
reasonable measure of whether specific tributary to which they are adjacent, is, the 2015 Rule’s case-specific analysis.
minor tributaries bear a sufficient nexus at a minimum, in significant tension However, Justice Kennedy himself
with other regulated waters to constitute with Justice Kennedy’s understanding of stated in Rapanos, which informed the
‘navigable waters’ under the Act. Yet the the term significant nexus as explained significant nexus standard articulated in
breadth of this standard—which seems in Rapanos. See id. at 781–82 (‘‘[I]n the rule, that, ‘‘[b]ecause such a
to leave wide room for regulation of many cases wetlands adjacent to [significant] nexus was lacking with
drains, ditches, and streams remote tributaries covered by [the Corps’ 1986 respect to isolated ponds, the
from any navigable-in-fact water and tributary] standard might appear little [SWANCC] Court held the plain text of
carrying only minor volumes toward more related to navigable-in-fact waters the statute did not permit’’ the Corps to
it—precludes its adoption as the than were the isolated ponds held to fall assert jurisdiction over them. 547 U.S. at
determinative measure of whether beyond the Act’s scope in SWANCC.’’). 767. Other potential examples of the
adjacent wetlands are likely to play an The agencies are mindful that courts breadth of the significant nexus
important role in the integrity of an that have considered the merits of standard articulated in the 2015 Rule
aquatic system comprising navigable challenges to the 2015 Rule have are provided below in the next section.
waters as traditionally understood.’’ Id. similarly observed that the rule may
conflict with Justice Kennedy’s opinion 3. Concerns Regarding the 2015 Rule’s
(emphasis added). Effect on the Scope of CWA Jurisdiction
in Rapanos, particularly the rule’s
The 2015 Rule, by contrast, asserts The agencies asserted in the preamble
definition of ‘‘tributary.’’ The District of
jurisdiction categorically over any to the 2015 Rule that ‘‘State, tribal, and
North Dakota found that the definitions
tributary, including all ephemeral and local governments have well-defined
in the 2015 Rule raise ‘‘precisely the
intermittent streams that meet the rule’s concern Justice Kennedy had in and longstanding relationships with the
tributary definition, as well as all Rapanos, and indeed the general Federal government in implementing
wetlands and other waters that are definition of tributary [in the 2015 Rule] CWA programs and these relationships
within certain specified distances from is strikingly similar’’ to the standard for are not altered by the final rule.’’ 80 FR
a broadly defined category of tributaries tributaries that concerned Justice 37054. The agencies further noted that
(e.g., all waters located within the 100- Kennedy in Rapanos. North Dakota, 127 ‘‘[c]ompared to the current regulations
year floodplain of a category (1) through F. Supp. 3d at 1056. The Southern and historic practice of making
(5) ‘‘jurisdictional by rule’’ water and District of Georgia also found that the jurisdictional determinations, the scope
not more than 1,500 feet from the 2015 Rule’s definition of ‘‘tributary’’ ‘‘is of jurisdictional waters will decrease’’
ordinary high water mark of such similar to the one’’ at issue in Rapanos, under the 2015 Rule. Id. at 37101. When
water). According to the rule, tributaries and that ‘‘it carries with it the same compared to more recent practice,
are characterized by the presence of the concern that Justice Kennedy had however, the agencies determined that
physical indicators of a bed and banks there.’’ Georgia, 2018 U.S. Dist. LEXIS the 2015 Rule would result ‘‘in an
and an ordinary high water mark and 97223, at *17. Likewise, the Sixth estimated increase between 2.84 and
eventually contribute flow (directly or Circuit stated in response to petitioners’ 4.65 percent in positive jurisdictional
indirectly) to a traditional navigable ‘‘claim that the Rule’s treatment of determinations annually.’’ Id. The
water, interstate water, or territorial sea tributaries, ‘adjacent waters,’ and waters agencies thus concluded that the 2015
that may be a considerable distance having a ‘significant nexus’ to navigable Rule would ‘‘result in a small overall
away. See 80 FR 37105. The 2015 Rule waters is at odds with the Supreme increase in positive jurisdiction
defined ‘‘ordinary high water mark’’ as Court’s ruling in Rapanos’’ that ‘‘[e]ven determinations compared to those made
‘‘that line on the shore established by assuming, for present purposes, as the under the Rapanos Guidance’’ and that
the fluctuations of water and indicated parties do, that Justice Kennedy’s the ‘‘net effect’’ of the regulatory
by physical characteristics such as a opinion in Rapanos represents the best changes would ‘‘be marginal at most.’’
clear, natural line impressed on the instruction on the permissible Brief for Respondents at 32–33 & n.6, In
bank, shelving, changes in the character parameters of ‘waters of the United re EPA, No. 15–3571 (6th Cir. Jan. 13,
of soil, destruction of terrestrial States’ as used in the Clean Water Act, 2017). Since publication of the final
vegetation, the presence of litter and it is far from clear that the new Rule’s rule, the agencies have received
debris, or other appropriate means that distance limitations are harmonious information about the impact of these
consider the characteristics of the with the instruction.’’ In re EPA, 803 changes, including through filings in
surrounding areas.’’ Id. at 37106. The F.3d at 807 & n.3 (noting that ‘‘[t]here litigation against the 2015 Rule and
2015 Rule did not require any are real questions regarding the comments received in response to the
assessment of flow, including volume, collective meaning of the [Supreme] July 27, 2017 NPRM. After further
duration, or frequency, when defining Court’s fragmented opinions in analysis and reconsideration of how the
amozie on DSK3GDR082PROD with PROPOSALS1
the ‘‘waters of the United States.’’ Rapanos’’). 2015 Rule is likely to impact
Instead, the 2015 Rule concluded that it One example that illustrates this point jurisdictional determinations, including
was reasonable to presume that ‘‘[t]hese is the ‘‘seasonally ponded, abandoned how the data on those impacts relate to
physical indicators demonstrate there is gravel mining depressions’’ specifically the specific regulatory changes made in
volume, frequency, and duration of flow at issue in SWANCC, 531 U.S. at 164, the 2015 Rule, the agencies are now
sufficient to create a bed and banks and which the Supreme Court determined considering whether the definitional
an ordinary high water mark, and thus were ‘‘nonnavigable, isolated, intrastate changes in the 2015 Rule would have a
to qualify as a tributary.’’ Id. at 37105. waters,’’ id. at 166–72, and not more substantial impact on the scope of
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![32244 Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules
having been declared not jurisdictional 2.84 to 4.65 percent increase in overall and Rule,’’ 48 along with an
under the existing regulations and jurisdiction, including the use of a accompanying 3,695 page document of
agency guidance. Thus, while the method whereby the increase in approved jurisdictional determination
agencies acknowledged in the 2015 Rule assertion of jurisdiction in a particular (AJD) forms.49 This contains the
Economic Analysis that ‘‘[f]ollowing the category of waters (e.g., streams, agencies’ assessment conducted in April
Supreme Court decisions in SWANCC wetlands, and other waters) was 2015 of almost two hundred previously
(2001) and Rapanos (2006), the agencies proportionally applied based on the raw performed AJDs to help the agencies
no longer asserted CWA jurisdiction number of records in a category relative better understand how waters might
over isolated waters,’’ the agencies to the total number of records across all change jurisdictional status based on the
estimated in the 2015 Rule Economic categories in the ORM2 database, distance limitations included in the
Analysis that 34.5 percent of the other notwithstanding whether the regulatory final 2015 Rule for adjacent and case-
waters category could become changes in the 2015 Rule did not specific waters (see 80 FR 37105),
jurisdictional under the 2015 Rule.44 By materially impact those other categories. including where they might no longer
way of comparison, a similar analysis of For example, of the 160,087 records in be jurisdictional under the final rule.
this category of other waters performed the ORM2 database for FY13 and FY14, Certain examples included in the
in support of the proposed rule in 2014 103,591 were associated with the assessment suggest that the 2015 Rule
(using FY09 and FY10 data from the streams category, 46,781 were could modify CWA jurisdiction over
ORM2 database) estimated that 17 associated with the wetlands category, waters that were deemed not
percent of the negative jurisdictional for and 9,715 were related to the other jurisdictional under the 1986 regulatory
other waters would become positive.45 waters category. Thus, although 34.5 framework and Supreme Court
While the Economic Analysis for the percent of previously non-jurisdictional precedent. The agencies request
2015 Rule estimated that 34.5 percent of ‘‘other waters’’ would become comment on whether the examples
negative jurisdictional determinations jurisdictional under the 2015 Rule, the illustrate the concerns expressed by the
for other waters would become proportional method used in the 2015 recent court decisions discussed above
positive,46 the agencies nevertheless Rule Economic Analysis resulted in that the 2015 Rule may have exceeded
premised the 2015 Rule on assertions only an estimated 2.09 percent increase the significant nexus standard
that the ‘‘scope of jurisdiction in this in positive jurisdictional determinations articulated by Justice Kennedy in the
rule is narrower than that under the for ‘‘other waters’’ relative to the total Rapanos opinion and concerns
existing regulation,’’ the scope of number of jurisdictional determinations expressed by certain commenters that
jurisdiction in the rule would result ‘‘in considered.47 the 2015 Rule may have created
an estimated increase between 2.84 and In addition, the record for the 2015 additional regulatory uncertainty over
4.65 percent in positive jurisdictional Rule includes a 57-page document waters that were previously thought
determinations annually’’ based on entitled ‘‘Supporting Documentation: beyond the scope of CWA jurisdiction.
existing practice, and that such impacts Analysis of Jurisdictional The examples are intended to be
would be ‘‘small overall’’ and ‘‘marginal Determinations for Economic Analysis illustrative, and are not intended to
at most.’’ See 80 FR 37054, 37101; Brief attempt to quantify or reassess previous
for Respondents at 32–33 & n.6, In re 47 The following summarizes the methodology estimates of CWA jurisdiction, as the
EPA, No. 15–3571 (6th Cir. Jan. 13, used to derive the low-end estimated increase in agencies are not aware of any map or
2017). The agencies are examining these jurisdiction of 2.84 percent: Streams account for dataset that accurately or with any
statements and how this data relates 103,591 of the 160,087 total records (64.709 percent precision portrays CWA jurisdiction at
specifically to the regulatory changes of the total ORM2 records) and 100 percent of
streams are assumed to be jurisdictional under the
any point in the history of this complex
made in the 2015 Rule (as opposed to final rule compared to 99.3 percent under previous regulatory program.
those provisions which already practice (100 percent minus 99.3 percent = 0.7 In the first example, a property in
subjected many streams and wetlands to percent). The relative contribution of streams to the Chesapeake, Virginia, was reviewed by
CWA jurisdiction). The agencies request overall change in jurisdictional determinations is the Corps’ Norfolk District in early
thus 64.709 percent multiplied by 0.7 percent for
comment on whether the projected a total of 0.45 percent. Wetlands account for 46,781 January 2014 and again in March 2015
increase for this category is most of the 160,087 total records (29.222 percent of the and was determined not to contain
relevant to measuring the impacts of the total ORM2 records) and 100 percent of wetlands jurisdictional wetlands because the
2015 Rule, whether the public had are assumed to be jurisdictional under the final rule wetlands on the property lacked a
compared to 98.9 percent under previous practice
ample notice of the doubling of (100 percent minus 98.9 percent = 1.1 percent). The
hydrological surface connection of any
projected positive jurisdiction over the relative contribution of wetlands to the overall duration, frequency, or volume of flow
other waters category from the proposed estimated change in jurisdictional determinations is to other jurisdictional waters. The Corps
to final rule, and whether the final rule thus 29.222 percent multiplied by 1.1 percent for noted that the wetlands ‘‘appear to be
a total of 0.32 percent. Other waters account for
could expand overall CWA positive 9,715 of the 160,087 total records (6.069 percent of
dependent upon groundwater for
jurisdictional determinations by a the total ORM2 records) and 34.5 percent of other hydrology, and have no surface
material amount inconsistent with the waters are assumed to be jurisdictional under the connections’’ to nearby tributaries, the
findings and conclusions that justified final rule compared to 0.0 percent under previous closest one of which was approximately
practice (34.5 percent minus 0.0 percent = 34.5
the 2015 Rule. percent). The relative contribution of other waters
80 feet from the wetland. The agencies
In particular, the agencies seek to the overall estimated change in jurisdictional
comment on the conclusions that were determinations is thus 6.069 percent multiplied by 48 U.S. EPA. Supporting Documentation: Analysis
34.5 percent for a total of 2.09 percent. The agencies of Jurisdictional Determinations for Economic
based on the method that estimated a
amozie on DSK3GDR082PROD with PROPOSALS1
then added the relative contribution to the overall Analysis and Rule (Docket ID: EPA–HQ–OW–2011–
estimated change in jurisdictional determinations 0880–20877), available at https://
44 2015 Rule Economic Analysis at 5, 12. for each category of waters (i.e., 0.45 percent for www.regulations.gov/document?D=EPA-HQ-OW-
45 U.S.EPA and U.S. Army Corps of Engineers. 2011-0880-20877.
streams, 0.32 percent for wetlands, and 2.09 percent
Economic Analysis of Proposed Revised Definition for other waters) to get a total projected change in 49 U.S. EPA and U.S. Army Corps of Engineers.
of Waters of the United States at 12, Exhibit 3 (Mar. positive jurisdictional determinations of 2.86 Supporting Documentation: Jurisdictional
2014) (Docket ID: EPA–HQ–OW–2011–0880–0003), percent. The differences between this calculation Determinations (Docket ID: EPA–HQ–OW–2011–
available at https://www.regulations.gov/ and the reported 2.84 percent in the 2015 Rule 0880–20876), available at https://
document?D=EPA-HQ-OW-2011-0880-0003. Economic Analysis may be the result of rounding www.regulations.gov/document?D=EPA-HQ-OW-
46 2015 Rule Economic Analysis at 13, Figure 2. error. 2011-0880-20876.
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![Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules 32245
later stated that the wetland features based solely on the ‘Migratory Bird isolated wetland. Wetlands B and C
‘‘would be jurisdictional under the new Rule.’ ’’ A later review by the agencies, (0.08 ac and 0.15 ac) are isolated
rule’’ because they are ‘‘within 100-feet however, stated that these wetlands wetlands that formed over a failed drain
of a tributary’’ and would thus meet the would be jurisdictional under the 2015 tile and are over 1,200 feet away from
rule’s definition of ‘‘neighboring’’ and, Rule. Further information regarding this the closest jurisdictional waterway.’’
in turn, ‘‘adjacent.’’ Further information property and associated AJD has been The AJD also notes, ‘‘Weland [sic] A and
regarding this AJD and property has added to the docket for the NPRM and the area around Wetlands B and C were
been added to the docket for the NPRM is identified as ‘‘Case Study C—AJD previously determined to be isolated in
and is identified as ‘‘Case Study A—AJD Number MVM–2014–460’’ (see Support 2008. Wetland C is mapped as Prior
Number NAO–2014–2269’’ (see Support Document). Converted in a NRCS certified farmed
Document). In another example, the Corps’ New wetland determination—other areas are
In another example, the Corps’ England District reviewed a ‘‘mowed mapped as not inventoried.’’ Upon later
Buffalo District reviewed a small wet meadow within a mowed hayfield’’ reviewing the negative AJD, however,
wetland approximately 583 feet away in Greensboro, Vermont, in August 2012 the agencies determined the wetlands
from the Johlin Ditch near Toledo, Ohio, and concluded the site did not contain would be ‘‘now Yes JD’’ under the 2015
which eventually leads north to Lake jurisdictional wetlands. The AJD Rule. Further information regarding this
Erie. After conducting a field described the wetlands as ‘‘surrounded property and associated positive and
investigation in September 2014, the on all sides by similar upland,’’ ‘‘500′– negative AJDs has been added to the
Corps determined that the wetlands 985′ away’’ from the nearest docket for the NPRM and is identified
were not jurisdictional because the jurisdictional waters, and ‘‘isolated as ‘‘Case Study E—AJD Number LRC–
‘‘wetlands are isolated and there is no intrastate waters with no outlet, no 2015–31’’ (see Support Document).
surface water connections [sic] and the hydrological connection to the Lamoille In another example, the Corps’
only potential jurisdiction would be the River, no nexus to interstate commerce, Pittsburgh District visited a property in
[Migratory Bird Rule],’’ noting that the and no significant nexus to the Lamoille Butler, Pennsylvania, in October 2014
area previously would have been River (located about 1.7–1.8 miles and determined the site did not contain
regulated under the Migratory Bird Rule southeast of the site).’’ A later review by waters of the United States because the
prior to the Supreme Court’s SWANCC the agencies, however, stated the wetland was ‘‘completely isolated and
decision. The agencies later stated that wetlands would be jurisdictional under has no nexus to a TNW or interstate or
the wetlands would be jurisdictional the 2015 Rule. Further information foreign commerce.’’ The Corps noted
under the 2015 Rule. Further regarding this property and associated that the wetland would have been
information regarding this AJD and AJD has been added to the docket for regulated based solely on the Migratory
property has been added to the docket the NPRM and is identified as ‘‘Case Bird Rule prior to the decision in
for the NPRM and is identified as ‘‘Case Study D—AJD Number NAE–2012– SWANCC. Upon reviewing the AJD, the
Study B—AJD Number 2004–001914’’ 1813’’ (see Support Document). agencies later stated the wetland is
(see Support Document). In another example, the Corps’ ‘‘[i]solated but would have flood storage
In another example, the Corps’ Chicago District completed AJD number function.’’ The agencies’ review notes
Memphis District reviewed a borrow pit LRC–2015–31 for wetlands in that the wetland is 1,270 feet from the
on a property in Mississippi County, agricultural fields in Kane County, nearest relatively permanent water
Missouri, and concluded that the Illinois, in January 2015. AJD Number (RPW) or traditional navigable water
borrow pit did not contain jurisdictional LRC–2015–31 was completed using two (TNW). Given the wetland is within
wetlands. The project area was separate AJD forms: One form for the 4,000 feet of a tributary and the agencies
described in the AJD as follows: features at the project site that were have stated it possesses at least one of
The borrow pit has been abandoned for determined to be jurisdictional the nine functions relevant to the
some time. Vegetation consists mainly of according to the Rapanos Guidance significant nexus evaluation, see 80 FR
black willow (Salix nigra) and poison ivy (‘‘positive AJD form’’) and a second 37106 (i.e., retention and attenuation of
(Toxicodendron radicans). A site visit was form for the features at the site that the flood waters), the wetland would be
conducted on 8 December 2014. The borrow subject to a significant nexus evaluation
pit is bordered by agricultural land on three Corps determined were not
jurisdictional under the Rapanos under the 2015 Rule. It is unclear,
sides and County Road K on the western however, whether the wetland and its
border. There are no surface water Guidance (‘‘negative AJD form’’). Only
connections to other waters of the U.S. A the positive AJD form was included in flood storage function would contribute
sample was taken within the site and all the docket in Supporting significantly to the chemical, physical,
three parameters for a wetland are present. Documentation entitled, ‘‘Jurisdictional or biological integrity of the nearest
The Soil Survey book for Cape Girardeau, Determinations—Redacted.’’ 50 The category (1) through (3) water as
Mississippi and Scott Counties Missouri,
negative AJD form is available on the required by the 2015 Rule to satisfy the
compiled in 1974 and 1975 from aerial significant nexus test. Further
photography indicates no drainage into or Chicago District website.51
Using a field determination and desk information regarding this property and
out of the project site. The area is an isolated associated AJD has been added to the
wetland approximately 7.6 acres in size. determinations, the Corps found on the
AJD form that there were ‘‘no ‘waters of docket for the NPRM and is identified
The abandoned pit in this example as ‘‘Case Study F—AJD Number LRP
the U.S.’ within Clean Water Act (CWA)
was 2,184 feet from the nearest 2014–855’’ (see Support Document).
jurisdiction (as defined by 33 CFR part
‘‘tributary,’’ a feature that itself appears In addition to the projected increase
amozie on DSK3GDR082PROD with PROPOSALS1
328) in the review area.’’ The Corps
to be a ditch in an agricultural field. The in positive jurisdictional determinations
described the project area in the AJD
wetlands in the borrow pit were and the above examples of expected JD
form as follows: ‘‘Wetland A is a 1.37
determined by the Corps to be isolated changes, an examination of the
acre high quality closed depressional
and non-jurisdictional ‘‘with no documents supporting the estimated
substantial nexus to interstate (or 50 Id.
2.84 to 4.65 percent annual increase in
at 2082–83.
foreign) commerce’’ and on the basis 51 Available
at: http://www.lrc.usace.army.mil/
positive AJDs raises concerns that the
that ‘‘prior to . . .‘’SWANCC,’ the Portals/36/docs/regulatory/jd/lrcnjd02-2015.pdf 2015 Rule may have significantly
review area would have been regulated (page 1 and 2). expanded jurisdiction over tributaries in
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![Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules 32247
of Kansas on the proposed rule raised compared to recent practice.65 In the relationships between the federal and
similar concerns and focused on the administrative record for the 2015 Rule State governments in implementing
inclusion of ephemeral streams in the and in a brief filed with the Sixth CWA programs. The agencies seek
proposed definition of tributary: ‘‘In Circuit (based on that record), the comment on this and other data that
Kansas we have identified agencies asserted that the definition of may be relevant to a proposed finding,
approximately 31,000 miles of perennial ‘‘waters of the United States’’ and whether such a change in finding
and intermittent waters that have been historically has included ephemeral would, either independently or in
treated as WOTUS for several streams and that some federal court conjunction with other factors, support
decades. . . . As per the preamble to decisions after SWANCC upheld the agencies’ proposal to repeal the 2015
the Rule and EPA/ACOE statements, the assertions of CWA jurisdiction over Rule.
additional 133,000 miles [of ephemeral surface waters that have a hydrologic
streams] would result in a 460% connection to and that form part of the 4. Potential Impact on Federal-State
increase in the number of Kansas waters tributary system of a traditional Balance
presumed to be jurisdictional under the navigable water, including intermittent When promulgating the 2015 Rule,
Rule.’’ 60 Kansas added that the State or ephemeral streams. 80 FR 37079; the agencies concluded and
does ‘‘not believe ephemeral waters Brief for Respondents at 11, 62–64, In re prominently stated that ‘‘State, tribal,
have always been considered de facto EPA, No. 15–3571 (6th Cir. Jan. 13, and local governments have well-
tributaries for CWA jurisdictional 2017).66 The agencies are requesting defined and longstanding relationships
purposes.’’ 61 Referencing a statement comment on whether these responses to with the Federal government in
made by then-EPA Administrator these issues are adequate. While some implementing CWA programs and these
McCarthy in which she stated, ephemeral streams may have been relationships are not altered by the final
‘‘[u]nfortunately, 60 percent of our jurisdictional after a case-specific rule,’’ 80 FR 37054. Indeed, it was ‘‘the
nation’s streams and millions of acres of analysis pursuant to the Rapanos policy of the Congress to recognize,
wetlands currently lack clear protection Guidance,67 and while challenges to preserve, and protect the primary
from pollution under the Clean Water some of those determinations have been responsibilities and rights of States to
Act,’’ 62 Kansas noted that ‘‘if those 60 rejected by courts, the agencies are prevent, reduce, and eliminate
percent that ‘lack clear protection’ are requesting public comment on whether pollution, to plan the development and
brought under the umbrella of the CWA, these prior conclusions and assertions use (including restoration, preservation,
[there will be] a significantly larger were correct. and enhancement) of land and water
expansion than estimated in the Given the concerns expressed by three resources, and to consult with the
economic analysis for the Rule.’’ 63 federal courts regarding the potential Administrator in the exercise of his
The agencies in 2015 suggested that a scope of the 2015 Rule and comments authority under this Act.’’ 33 U.S.C.
feature that flows very infrequently raised during the 2015 rulemaking and 1251(b).
would not form the physical indicators submitted in response to the July 27,
required to meet the 2015 Rule’s 2017 NPRM, the agencies are re- In response to the agencies’ July 27,
definitions of ‘‘ordinary high water evaluating the 2015 Rule and the 2017 NPRM, some commenters have
mark’’ and ‘‘tributary.’’ 64 In response to potential change in jurisdiction. While suggested that the 2015 Rule—
comments questioning the agencies’ the agencies are not aware of any data including, inter alia, elements of the
characterization of the change in scope that estimates with any reasonable final rule that commenters were not able
of jurisdiction under the 2015 Rule, the certainty or predictability the exact to address during the comment period—
agencies stated that the 2015 Rule was baseline miles and area of waters may not effectively reflect the specific
narrower in scope than the existing covered by the 1986 regulations and policy that Congress articulated in CWA
regulations and historical practice, and preexisting agency practice or data that section 101(b). The agencies are
reiterated that an increase of accurately forecasts of the additional considering whether and are proposing
approximately 3 percent represented the waters subject to jurisdiction under the to conclude that the 2015 Rule did not
agencies’ estimate of the increased 2015 Rule, the agencies are examining draw the appropriate line, for purposes
positive jurisdictional determinations whether the data and estimates used to of CWA jurisdiction, between waters
support the 2015 Rule’s conclusions subject to federal and State regulation,
Indiana Dept. of Environ. Mgmt., Kansas Dept. of that the rule would be narrower than on the one hand, and waters subject to
Health and Environ., Louisiana Dept. of Environ. preexisting regulations may not have state regulation only, on the other. In
Quality, Mississippi Dept. of Environ. Quality, supported those conclusions, and comments submitted to the agencies in
Oklahoma Dept. of Environ. Quality, and Wyoming response to the July 27, 2017 NPRM,
Dept. of Environ. Quality (Nov. 14, 2014) (Docket instead the 2015 Rule may have had
ID: EPA–HQ–OW–2011–0880–15096), available at more than a marginal impact on CWA many States, representatives of entities
https://www.regulations.gov/document?D=EPA-HQ- jurisdictional determinations and may within many sectors of the regulated
OW-2011-0880-15096. impact well-defined and longstanding community, and numerous other
60 See comments submitted by the State of Kansas
commenters expressed concerns that the
at Appendix A (Oct. 23, 2014) (Docket ID: EPA–
HQ–OW–2011–0880–16636), available at https://
65 See,
e.g., id. at 10–13, 17. 2015 Rule permits federal encroachment
www.regulations.gov/document?D=EPA-HQ-OW-
66 See
also U.S. EPA and Department of the Army. upon the States’ traditional and primary
2011-0880-16636. Technical Support Document for the Clean Water authority over land and water resources.
Rule: Definition of Waters of the United States at
61 Id. (emphasis in original).
28 (May 27, 2015), available at https:// Such commenters cite the Supreme
62 See ‘‘Clean Water Drives Economic Growth’’ by
www.epa.gov/sites/production/files/2015-05/ Court’s recognition that ‘‘Congress chose
amozie on DSK3GDR082PROD with PROPOSALS1
Gina McCarthy (Sept. 29, 2014), available at http://
www.huffingtonpost.com/gina-mccarthy/clean-
documents/technical_support_document_for_the_ to ‘recognize, preserve, and protect the
clean_water_rule_1.pdf. primary responsibilities and rights of
water-act_b_5900734.html. 67 See Rapanos Guidance at 7 (‘‘ ‘[R]elatively
63 See supra note 60.
permanent’ waters do not include ephemeral states . . . to plan the development and
64 See, e.g., U.S. EPA and U.S. Army Corps of
tributaries which flow only in response to use’ ’’ of those resources in enacting the
Engineers. Clean Water Rule Response to precipitation and intermittent streams which do not CWA rather than ‘‘readjust the federal-
Comments—Topic 11: Cost/Benefits (Volume 2) at typically flow year-round or have continuous flow
223, available at https://www.epa.gov/sites/ at least seasonally. However, CWA jurisdiction over
state balance,’’ SWANCC, 531 U.S. at
production/files/2015-06/documents/cwr_response_ these waters will be evaluated under the significant 174 (quoting CWA section 101(b), 33
to_comments_11_econ_vol2.pdf. nexus standard.’’). U.S.C. 1251(b)).
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![32248 Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules
Under the 2015 Rule, commenters as a basis for categorical CWA balance in a manner contrary to the
have observed that the agencies asserted jurisdiction with respect to adjacent congressionally determined policy in
categorical jurisdiction over water waters, the agencies are concerned that CWA section 101(b). Indeed, when
features that may be wholly intrastate the Rule’s use of this standard, issuing a preliminary injunction of the
and physically remote from navigable- including its use as a basis for requiring 2015 Rule, the Southern District of
in-fact waters. Such waters ‘‘adjacent’’ a case-specific significant nexus Georgia held that ‘‘The [2015] WOTUS
to jurisdictional waters are deemed to determination, could nonetheless Rule asserts jurisdiction over remote
meet the definition of ‘‘waters of the interfere with traditional state and local and intermittent waters without
United States’’ under the 2015 Rule, so police power, as suggested by some of evidence that they have a nexus with
long as any portion of the water is the comments received in 2014.70 any navigable-in-fact waters.’’ Georgia,
located within 100 feet of the ordinary Comments received in response to the 2018 U.S. Dist. LEXIS 97223, at *19.
high water mark of a category (1) July 27, 2017 NPRM also raise concerns The agencies thus solicit comment on
through (5) ‘‘jurisdictional by rule’’ about the use of the 100-year floodplain. whether the definitions in the 2015 Rule
water; within the 100-year floodplain of Specifically, commenters expressed would subject wholly intrastate or
a category (1) through (5) ‘‘jurisdictional concern about the absence of suitable physically remote waters or wetlands to
by rule’’ water but not more than 1,500 maps and about the accuracy of existing CWA jurisdiction, either categorically or
feet from the ordinary high water mark maps. Given these concerns, the on a case-by-case basis, and request
of such water; or within 1,500 feet of the agencies request comment on whether information about the number and
high tide line of a primary water or the the 2015 Rule’s use of the 100-year scope of such waters of which
ordinary high water mark of the Great floodplain as a factor to establish commenters may be aware.73
Lakes. 80 FR 37085–86, 37105. The jurisdiction over adjacent waters and Further, the agencies solicit comment
agencies also established case-specific case-specific waters interferes with about whether these, or any other,
jurisdiction over water features States’ primary responsibilities over the aspects of the 2015 Rule as finalized
generally at a greater distance, including planning and development of land and would, as either a de facto or de jure
waters (including seasonal or ephemeral water resources in conflict with CWA matter, alter federal-state relationships
waters) located within 4,000 feet of the section 101(b). The agencies also seek in the implementation of CWA
high tide line or ordinary high water comment on to what extent the 100-year programs and State regulation of State
mark of a category (1) through (5) water. floodplain component of the 2015 Rule waters, and whether the 2015 Rule
See 80 FR 37105. For such waters, ‘‘the conflicts with other federal regulatory appropriately implements the
entire water is a water of the United programs, and whether such a conflict Congressional policy of recognizing,
States if a portion is located within the impacts State and local governments. preserving, and protecting the primary
100-year floodplain of a water identified The agencies noted in 2015 ‘‘that the rights of states to plan the development
in paragraphs (a)(1) through (3) . . . or vast majority of the nation’s water and use of land and water resources.
within 4,000 feet of the high tide line or features are located within 4,000 feet of Because such findings would, if adopted
ordinary high water mark’’ of a category a covered tributary, traditional by the agencies, negate a key finding
(1) through (5) water.’’ Id. navigable water, interstate water, or underpinning the 2015 Rule, the
The agencies are considering whether territorial sea.’’ 71 The agencies’ agencies request comment on whether
the 2015 Rule’s coverage of waters broadening of certain key concepts and to repeal the 2015 Rule on this basis.
based, in part, on their location within terms relative to the prior regulatory
regime means that the agencies can 5. Additional Bases for Repealing the
the 100-year floodplain of a 2015 Rule That the Agencies Are
potentially review the ‘‘vast majority’’ of
jurisdictional water is consistent with Considering
water features in the country under the
the policy articulated in CWA section
2015 Rule, unless those features have In addition to our proposed
101(b) that States should maintain
been excluded from the definition. conclusions that the 2015 Rule failed to
primary responsibility over land and
Similar concern was raised in response provide regulatory certainty and that it
water resources. The agencies received
to the July 27, 2017 NPRM, for example, exceeded the agencies’ authority under
many comments on the proposal to the
by the Missouri Department of Natural the CWA, the agencies are also
2015 Rule indicating that the potential
Resources and Department of considering several other supplemental
breadth of this standard could conflict
Agriculture.72 The agencies seek bases for repealing the 2015 Rule. These
with other federal, State or local laws comment on that analysis and whether are discussed below along with requests
that regulate development within the 2015 Rule readjusts the federal-state for public comment.
floodplains.68 In particular, certain local
Some commenters have suggested that
governments expressed concern that the 70 See, e.g., comments submitted by Georgia
the 2015 Rule may exceed Congress’
floodplain element of the rule could Municipal Association (Nov. 13, 2014) (Docket ID: power under the Commerce Clause. The
conflict with local floodplain EPA–HQ–OW–2011–0880–14527), available at
Supreme Court in SWANCC found that,
ordinances or otherwise complicate https://www.regulations.gov/document?D=EPA-HQ-
OW-2011-0880-14527; comments submitted by City in enacting the CWA, Congress had in
local land use planning and of St. Petersburg (Nov. 13, 2014) (Docket ID: EPA– mind as its authority ‘‘its traditional
development.69 Though the agencies HQ–OW–2011–0880–18897), available at https://
jurisdiction over waters that were or had
added a distance-based threshold to www.regulations.gov/document?D=EPA-HQ-OW-
2011-0880-18897. been navigable in fact or which could
limit the use of the 100-year floodplain 71 2015 Rule Economic Analysis at 11. reasonably be so made.’’ 531 U.S. at 172.
72 See comments submitted by the Missouri
The Court went on to construe the CWA
amozie on DSK3GDR082PROD with PROPOSALS1
68 See, e.g., comments submitted by City of
Department of Natural Resources and Department of to avoid the significant constitutional
Chesapeake (Sept. 9, 2014) (Docket ID: EPA–HQ– Agriculture (Sept. 26, 2017) (Docket ID: EPA–HQ–
OW–2011–0880–9615), available at https:// OW–2017–0203–13869), available at https://
www.regulations.gov/document?D=EPA-HQ-OW- www.regulations.gov/document?D=EPA-HQ-OW- 73 This includes whether the 2015 Rule is
2011-0880-9615. 2017-0203-13869 (‘‘The broad definition of tributary supported by a ‘‘clear and manifest’’ statement
69 See, e.g., comments submitted by National under the CWA to change the scope of traditional
and the inclusion of a three-quarter mile buffer
Association of Counties (Nov. 14, 2014) (Docket ID: around every tributary and impoundment, would state regulatory authority. See BFP v. Resolution
EPA–HQ–OW–2011–0880–15081), available at have cast a very broad jurisdictional umbrella over Trust Corp., 511 U.S. 531, 544 (1994); see also Bond
https://www.regulations.gov/document?D=EPA-HQ- the state; requiring significant nexus determinations v. United States, 134 S. Ct. 2077, 2089–90 (2014);
OW-2011-0880-15081. on all but a very few number of waters.’’). SWANCC, 531 U.S. at 172–74.
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![Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules 32249
questions raised by the agencies’ the agencies later stated the feature public, including regulated entities, if
assertion that the ‘‘ ‘Migratory Bird Rule’ would be jurisdictional under the 2015 the 2015 Rule were vacated in part. The
falls within Congress’ power to regulate Rule. In addition, the wetlands at issue agencies therefore propose to exercise
intrastate activities that ‘substantially in Case Study B—AJD Number 2004– their discretion and policy judgment by
affect’ interstate commerce.’’ Id. at 173. 001914 (see Support Document) repealing the 2015 Rule permanently
The agencies are evaluating the described above in Section II.C.3 were and in its entirety because the agencies
concerns, reflected in certain comments located 583 feet from the Johlin Ditch believe that this approach is the most
received by the agencies, that many outside Toledo, Ohio, situated east of an appropriate means to remedy the
features that are categorically existing medical building and west of an deficiencies of the 2015 Rule identified
jurisdictional under the 2015 Rule, such agricultural area. The wetlands were above, address the litigation risk
as wetlands that fall within the distance determined by the Corps to be isolated, surrounding the 2015 Rule, and restore
thresholds of the definition of lacking a surface connection to a water a regulatory process that has been in
‘‘neighboring,’’ test the limits of the of the United States and a substantial place for years.
scope of the Commerce Clause because nexus to interstate commerce. Those The agencies have considered other
they may not have the requisite effect on wetlands, however, were later stated by alternatives that could have the effect of
the channels of interstate commerce.74 the agencies to be subject to CWA addressing some of the potential
For example, according to certain jurisdiction under the 2015 Rule. The deficiencies identified, including
litigants challenging the 2015 Rule, the agencies therefore solicit comment on proposing revisions to specific elements
‘‘seasonally ponded, abandoned gravel whether the 2015 Rule would cover of the 2015 Rule, issuing revised
mining depressions’’ specifically at such wetlands and, if so, whether that implementation guidance and
issue in SWANCC, 531 U.S. at 164, would exceed the CWA’s statutory implementation manuals, and proposing
which the Supreme Court determined limits. See, e.g., SWANCC, 531 U.S. at a further change to the February 6, 2020
were ‘‘nonnavigable, isolated, intrastate 171–72, 174 (‘‘[W]e find nothing applicability date of the 2015 Rule. The
waters,’’ id. at 166–72, might be subject approaching a clear statement from agencies are soliciting comments on
to case-specific jurisdiction under the Congress that it intended § 404(a) to whether any of these alternative
2015 Rule. The depressions appear to be reach an abandoned sand and gravel approaches would fully address and
located within 4,000 feet of Poplar pit’’ that is ‘‘isolated.’’). ameliorate potential deficiencies in and
Creek, a tributary to the Fox River, and Interested parties are encouraged to litigation risk associated with the 2015
may have the ability to store runoff or provide comment on whether the 2015 Rule. Consistent with the President’s
contribute other ecological functions in Rule is consistent with the statutory text Executive Order, the agencies are also
the watershed. of the CWA and relevant Supreme Court evaluating options for revising the
The agencies request comment, precedent, the limits of federal power definition of ‘‘waters of the United
including additional information, on under the Commerce Clause as States.’’
whether the water features at issue in specifically exercised by Congress in The agencies are proposing to
SWANCC or other similar water features enacting the CWA, and any applicable permanently repeal the 2015 Rule at this
could be deemed jurisdictional under legal requirements that pertain to the time, and are taking comment on
the 2015 Rule, and whether such a scope of the agencies’ authority to whether this proposal is the best and
determination is consistent with or define the term ‘‘waters of the United most efficient approach to address the
otherwise well-within the agencies’ States.’’ The agencies also solicit potential deficiencies identified in this
statutory authority, would be comment on any other issues that may notice and to provide the predictability
unreasonable or go beyond the scope of be relevant to the agencies’ and regulatory certainty that alternative
the CWA, and is consistent with Justice consideration of whether to repeal the approaches may not provide.
Kennedy’s significant nexus test 2015 Rule, such as whether any E. Effect of Repeal
expounded in Rapanos wherein he potential procedural deficiencies
stated, ‘‘[b]ecause such a [significant] limited effective public participation in The 2015 Rule amended longstanding
nexus was lacking with respect to the development of the 2015 Rule.75 regulations contained in portions of 33
isolated ponds, the [SWANCC] Court CFR part 328 and 40 CFR parts 110, 112,
held that the plain text of the statute did D. The Agencies’ Next Steps 116, 117, 122, 230, 232, 300, 302, and
not permit’’ the Corps to assert In defining the term ‘‘waters of the 401 by revising, removing, and re-
jurisdiction over them. See 547 U.S. at United States’’ under the CWA, designating certain paragraphs and
767. Congress gave the agencies broad definitions in those regulations. In this
The examples identified in Section discretion to articulate reasonable limits action, the agencies would repeal the
II.C.3 above raise similar issues. The on the meaning of that term, consistent 2015 Rule and restore the regulations in
abandoned borrow pit, for example, with the Act’s text and its policies as set existence immediately prior to the 2015
discussed in Case Study C—AJD forth in CWA section 101. In light of the Rule. As such, if the agencies finalize
Number MVM–2014–460, was substantial litigation risk regarding this proposal and repeal the 2015 Rule
determined by the Corps in December waters covered under the 2015 Rule, and thus repeal those amendments, the
2014 to be an isolated water located and based on the agencies’ experience regulatory definitions of ‘‘waters of the
2,184 feet from a relatively permanent and expertise in applying the CWA, the United States’’ in effect would be those
body of water ‘‘with no substantial agencies propose to repeal the 2015 portions of 33 CFR part 328 and 40 CFR
nexus to interstate (or foreign) Rule and put in place the prior parts 110, 112, 116, 117, 122, 230, 232,
amozie on DSK3GDR082PROD with PROPOSALS1
commerce’’ (see Support Document), yet regulation. This is based on the 300, 302, and 401 as they existed
concerns articulated above and the immediately prior to the 2015 Rule’s
74 Though the agencies have previously said that
agencies’ concern that there may be amendments. See, e.g., API v. EPA, 883
the 2015 Rule is consistent with the Commerce significant disruption to the F.3d 918, 923 (DC Cir. 2018) (regulatory
Clause and the CWA, the agencies are in the process criterion in effect immediately before
of considering whether it is more appropriate to implementation of the Act and to the
draw a jurisdictional line that ensures that the
enactment of criterion that was vacated
agencies regulate well within our constitutional and 75 See, e.g., Small Refiner Lead Phase-Down Task by the court ‘‘replaces the now-vacated’’
statutory bounds. Force v. EPA, 705 F.2d 506, 549 (DC Cir. 1983). criterion). Thus, if the agencies
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![32250 Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules
determine that repeal of the 2015 Rule fill a regulatory gap because no such gap In staying the 2015 Rule nationwide,
is appropriate, the agencies exists today. See 83 FR 5200, 5204. the Sixth Circuit found no indication
concurrently would recodify the prior Rather, the agencies are solely ‘‘that the integrity of the nation’s waters
regulation in the CFR, which would not proposing to repeal the 2015 will suffer imminent injury if the [2015
have the effect of creating a regulatory amendments to the above-referenced Rule] is not immediately implemented
vacuum, and the agencies need not portions of the CFR and recodify the and enforced.’’ In re EPA, 803 F.3d at
consider the potential consequences of prior regulatory text as it existed 808. The Sixth Circuit wrote that the
such a regulatory vacuum in light of immediately prior to the 2015 Rule’s ‘‘burden—potentially visited
this. If this proposed rule is finalized, amendments. nationwide on governmental bodies,
the agencies propose to apply the prior state and federal, as well as private
definition until a new definition of III. Minimal Reliance Interests
Implicated by a Repeal of the 2015 Rule parties—and the impact on the public in
CWA jurisdiction is finalized. general, implicated by the Rule’s
The current regulatory scheme for More than 30,000 AJDs of individual effective redrawing of jurisdictional
determining CWA jurisdiction is aquatic resources and other features lines over certain of the nation’s waters’’
‘‘familiar, if imperfect,’’ In re EPA, 803 have been issued since August 28, 2015, was of ‘‘greater concern.’’ Id. As a result,
F.3d at 808, and the agencies and the effective date of the 2015 Rule. the Sixth Circuit held that ‘‘the sheer
regulated public have significant However, less than two percent of the breadth of the ripple effects caused by
experience operating under the AJDs of individual aquatic resources the Rule’s definitional changes counsels
longstanding regulations that were were issued under the 2015 Rule
replaced by the 2015 Rule. The agencies strongly in favor of maintaining the
provisions in the six weeks the rule was status quo for the time being.’’ Id. For
would continue to implement those in effect in a portion of the country.76
regulations, as they have for many years, the reasons expounded in this notice
The 2015 Rule was in effect in only 37 and the NPRM, the agencies believe that
consistent with Supreme Court States for about six weeks between the
decisions and practice, other case law any potential adverse reliance interests
2015 Rule’s effective date and the Sixth are outweighed by the benefits of the
interpreting the rule, and informed by Circuit’s October 9, 2015 nationwide
agency guidance documents. Apart from agencies’ proposed action. The agencies
stay order, see In re EPA, 803 F.3d 804 therefore propose to repeal the 2015
a roughly six-week period when the (6th Cir. 2015), and only 540 AJDs for
2015 Rule was in effect in 37 States, the Rule and request comment on that
aquatic resources and other features proposal.
agencies have continued to implement were issued during that short window of
the preexisting regulatory definitions as time. The remainder of the AJDs issued IV. Statutory and Executive Order
a result of the court orders discussed in since August 28, 2015, were issued Reviews
Section I.B. above, as well as the final under the regulations defining the term
rule adding an applicability date to the ‘‘waters of the United States’’ that were A. Executive Order 12866: Regulatory
2015 Rule (83 FR 5200, Feb. 6, 2018). in effect immediately before the Planning and Review; Executive Order
While the agencies acknowledge that effective date of the 2015 Rule. 13563: Improving Regulation and
the 1986 and 1988 regulations have Regulatory Review
‘‘Sudden and unexplained change,
been criticized and their application has
. . . or change that does not take This action is a significant regulatory
been narrowed by various legal
account of legitimate reliance on prior action that was submitted to the Office
decisions, including SWANCC and
Rapanos, the longstanding nature of the [agency] interpretation, . . . may be of Management and Budget (OMB) for
regulatory framework and its track arbitrary, capricious [or] an abuse of review prior to the NPRM and again
record of implementation makes it discretion[,] [b]ut if these pitfalls are prior to issuance of the SNPRM. Any
preferable until the agencies propose avoided, change is not invalidating[.]’’ changes made in response to OMB
and finalize a replacement definition. Smiley v. Citibank (South Dakota), N.A., recommendations have been
The agencies believe that, until a new 517 U.S. 735, 742 (1996) (internal documented in the docket.
definition is completed, it is important quotation marks and citations omitted).
Therefore, in proposing to repeal the While economic analyses are
to retain the status quo that has been informative in the rulemaking context,
implemented for many years rather than 2015 Rule, the agencies are considering
any interests that may have developed the agencies are not relying on the
the 2015 Rule, which has been and economic analysis performed pursuant
continues to be mired in litigation. in reliance on the 2015 Rule, as well as
the potential harm to such reliance to Executive Orders 12866 and 13563
In other words, restoration of the prior and related procedural requirements as
regulatory text in the CFR, interpreted interests from repealing the Rule against
the benefits. The agencies solicit a basis for this proposed action. See,
in a manner consistent with Supreme e.g., NAHB, 682 F.3d at 1039–40 (noting
Court decisions, and informed by comment on whether the AJDs that were
issued under the 2015 Rule’s brief that the quality of an agency’s economic
applicable agency guidance documents
tenure (and any ensuing reliance analysis can be tested under the APA if
and longstanding practice, will ensure
interests that were developed) would be the ‘‘agency decides to rely on a cost-
that the scope of CWA jurisdiction will
adversely affected by the Rule’s repeal. benefit analysis as part of its
be administered in the same manner as
If the potential for such harm exists, the rulemaking’’).
it is now; as it was during the Sixth
Circuit’s lengthy, nationwide stay of the agencies also solicit comment on B. Executive Order 13771: Reducing
2015 Rule; and as it was for many years whether those harms outweigh the Regulations and Controlling Regulatory
amozie on DSK3GDR082PROD with PROPOSALS1
prior to the promulgation of the 2015 potential benefits of repealing the 2015 Cost
Rule. To be clear, the agencies are not Rule.
proposing a new definition of ‘‘waters of This rule is expected to be an
the United States’’ in this specific 76 See
Clean Water Act Approved Jurisdictional Executive Order 13771 deregulatory
rulemaking separate from the definition Determinations, available at https:// action. Details on the estimated cost
watersgeo.epa.gov/cwa/CWA-JDs, as of May 9, 2018.
that existed immediately prior to the The 2015 Rule was enjoined in 13 States by the U.S.
savings of this proposed rule can be
2015 Rule. The agencies also are not District Court for the District of North Dakota and found in the economic analysis that was
proposing to take this action in order to has never gone into effect in those States. published together with the NPRM.
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![32252 Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules
J. National Technology Transfer and 40 CFR Part 300 benefits such as health insurance, skills
Advancement Act Environmental protection, Air training, and other benefits customary
Section 12 of the National Technology pollution control, Chemicals, Hazardous for employees. We are concerned that
Transfer and Advancement Act of 1995 substances, Hazardous waste, these provisions are overbroad, and
requires federal agencies to evaluate Intergovernmental relations, Natural insufficiently linked to the exceptions
existing technical standards when resources, Occupational safety and expressly permitted by the statute. As
developing a new regulation. The health, Oil pollution, Penalties, we noted in our prior rulemaking,
proposed rule does not involve Reporting and recordkeeping section 1902(a)(32) of the Act provides
technical standards. requirements, Superfund, Water for a number of exceptions to the direct
pollution control, Water supply. payment requirement, but it does not
K. Executive Order 12898: Federal authorize the agency to create new
Actions To Address Environmental 40 CFR Part 302 exceptions.
Justice in Minority Populations and Environmental protection, Air DATES: To be assured consideration,
Low-Income Populations pollution control, Chemicals, Hazardous comments must be received at one of
This proposed rule maintains the substances, Hazardous waste, the addresses provided below, no later
legal status quo. The agencies therefore Intergovernmental relations, Natural than 5 p.m. on August 13, 2018.
believe that this action does not have resources, Reporting and recordkeeping ADDRESSES: In commenting, please refer
disproportionately high and adverse requirements, Superfund, Water to file code CMS–2413–P. Because of
human health or environmental effects pollution control, Water supply. staff and resource limitations, we cannot
on minority, low-income populations, accept comments by facsimile (FAX)
and/or indigenous peoples, as specified 40 CFR Part 401
transmission.
in Executive Order 12898 (59 FR 7629, Environmental protection, Waste Comments, including mass comment
Feb. 16, 1994). treatment and disposal, Water pollution submissions, must be submitted in one
control. of the following three ways (please
List of Subjects
■ For the reasons stated herein, the choose only one of the ways listed):
33 CFR Part 328 agencies propose to amend 33 CFR part 1. Electronically. You may submit
Environmental protection, 328 and 40 CFR parts 110, 112, 116, electronic comments on this regulation
Administrative practice and procedure, 117, 122, 230, 232, 300, 302, and 401 of to http://www.regulations.gov. Follow
Navigation (water), Water pollution the Code of Federal Regulations to the ‘‘Submit a comment’’ instructions.
control, Waterways. repeal the amendments that were 2. By regular mail. You may mail
promulgated in the 2015 Rule and written comments to the following
40 CFR Part 110 reestablish the regulatory text that was address ONLY: Centers for Medicare &
Environmental protection, Oil in place immediately prior to Medicaid Services, Department of
pollution, Reporting and recordkeeping promulgation of the 2015 Rule. Health and Human Services, Attention:
requirements. Dated: June 29, 2018. CMS–2413–P, P.O. Box 8016, Baltimore,
E. Scott Pruitt,
MD 21244–8016.
40 CFR Part 112 Please allow sufficient time for mailed
Environmental protection, Oil Administrator, Environmental Protection comments to be received before the
Agency.
pollution, Penalties, Reporting and close of the comment period.
recordkeeping requirements. Dated: June 29, 2018. 3. By express or overnight mail. You
R.D. James, may send written comments to the
40 CFR Part 116 Assistant Secretary of the Army (Civil Works). following address ONLY: Centers for
Environmental protection, Hazardous [FR Doc. 2018–14679 Filed 7–11–18; 8:45 am] Medicare & Medicaid Services,
substances, Reporting and BILLING CODE 6560–50–P Department of Health and Human
recordkeeping requirements, Water Services, Attention: CMS–2413–P, Mail
pollution control. Stop C4–26–05, 7500 Security
40 CFR Part 117 DEPARTMENT OF HEALTH AND Boulevard, Baltimore, MD 21244–1850.
HUMAN SERVICES FOR FURTHER INFORMATION CONTACT:
Environmental protection, Hazardous
Christopher Thompson, (410) 786–4044.
substances, Penalties, Reporting and Centers for Medicare & Medicaid
recordkeeping requirements, Water SUPPLEMENTARY INFORMATION: Inspection
Services of Public Comments: All comments
pollution control.
received before the close of the
40 CFR Part 122 42 CFR Part 447 comment period are available for
Environmental protection, [CMS–2413–P] viewing by the public, including any
Administrative practice and procedure, personally identifiable or confidential
RIN 0938–AT61
Confidential business information, business information that is included in
Hazardous substances, Reporting and Medicaid Program; Reassignment of a comment. We post all comments
recordkeeping requirements, Water Medicaid Provider Claims received before the close of the
pollution control. comment period on the following
AGENCIES: Centers for Medicare & website as soon as possible after they
amozie on DSK3GDR082PROD with PROPOSALS1
40 CFR Part 230 Medicaid Services, Department of have been received: http://
Environmental protection, Water Health and Human Services. www.regulations.gov. Follow the search
pollution control. ACTION: Proposed rule. instructions on that website to view
public comments.
40 CFR Part 232 SUMMARY: This proposed rule would
Environmental protection, remove the regulatory text that allows a I. Background
Intergovernmental relations, Water state to make payments to third parties The Medicaid program was
pollution control. on behalf of an individual provider for established by the Congress in 1965 to
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Document Created: 2018-11-06 10:22:37
Document Modified: 2018-11-06 10:22:37
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Supplemental notice of proposed rulemaking. | |
| Dates | Comments must be received on or before August 13, 2018. | |
| Contact | Michael McDavit, Office of Water (4504-T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, | |
| FR Citation | 83 FR 32227 | |
| RIN Number | 2040-AF74 | |
| CFR Citation | 33
CFR
328 40 CFR 110 40 CFR 112 40 CFR 116 40 CFR 117 40 CFR 122 40 CFR 230 40 CFR 232 40 CFR 300 40 CFR 302 40 CFR 401 | |
| CFR Associated | Environmental Protection; Administrative Practice and Procedure; Navigation (Water); Water Pollution Control; Waterways; Oil Pollution; Reporting and Recordkeeping Requirements; Penalties; Hazardous Substances; Confidential Business Information; Intergovernmental Relations; Air Pollution Control; Chemicals; Hazardous Waste; Natural Resources; Occupational Safety and Health; Superfund; Water Supply and Waste Treatment and Disposal |
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