Clean Water Rule Response to Comments – Topic 10: Legal Analysis

1

Clean Water Rule Comment Compendium

Topic 10: Legal Analysis

The Response to Comments Document, together with the preamble to the final Clean Water 

Rule, presents the responses of the Environmental Protection Agency (EPA) and the Department 

of the Army (collectively “the agencies”) to the more than one million public comments received 

on the proposed rule (79 FR 22188 (Apr. 21, 2014)). The agencies have addressed all significant 

issues raised in the public comments.

As a result of changes made to the preamble and final rule prior to signature, and due to the volume 

of comments received, some responses in the Response to Comments Document may not reflect the 

language in the preamble and final rule in every respect. Where the response is in conflict with the 

preamble or the final rule, the language in the final preamble and rule controls and should be used for 

purposes of understanding the scope, requirements, and basis of the final rule. In addition, due to the 

large number of comments that addressed similar issues, as well as the volume of the comments 

received, the Response to Comments Document does not always cross-reference each response 

to the commenter(s) who raised the particular issue involved. The responses presented in this 

document are intended to augment the responses to comments that appear in the preamble to the 

final rule or to address comments not discussed in that preamble. Although portions of the 

preamble to the final rule are paraphrased in this document where useful to add clarity to 

responses, the preamble itself remains the definitive statement of the rationale for the revisions 

adopted in the final rule. In many instances, particular responses presented in the Response to 

Comments Document include cross references to responses on related issues that are located 

either in the preamble to the Clean Water Rule, the Technical Support Document, or elsewhere 

in the Response to Comments Document. All issues on which the agencies are taking final action 

in the Clean Water Rule are addressed in the Clean Water Rule rulemaking record.

Accordingly, the Response to Comments Document, together with the preamble to the Clean 

Water Rule and the information contained in the Technical Support Document, the Science 

Report, and the rest of the administrative record should be considered collectively as the 

agencies’ response to all of the significant comments submitted on the proposed rule. The 

Response to Comments Document incorporates directly or by reference the significant public 

comments addressed in the preamble to the Clean Water Rule as well as other significant public 

comments that were submitted on the proposed rule.

This compendium, as part of the Response to Comments Document, provides a compendium of 

the technical comments about the Agencies’ legal analysis submitted by commenters. 

Comments have been copied into this document “as is” with no editing or summarizing. 

Footnotes in regular font are taken directly from the comments.

Note: While the contractor established a placeholder in this document for the “Agency 

Response,” the rule is promulgated by the Environmental Protection Agency and the Department 

of the Army and the responses are those of the agencies.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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TOPIC 10. COMMENTS ON LEGAL ANALYSIS ............................................................................. 12

AGENCY SUMMARY RESPONSE.................................................................................... 12

SPECIFIC COMMENTS ................................................................................................... 12

Offices of the Attorney Generals of Oklahoma, West Virginia, Nebraska (Doc. 

#7988) ................................................................................................................... 12

Florida Department of Agriculture and Consumer Services (Doc. #10260) ........ 12

State of New York, Office of Attorney General (Doc. #10940)........................... 17

Texas Comptroller of Public Accounts (Doc. #10952) ........................................ 17

Georgia Department of Agriculture (Doc. #12351).............................................. 19

Department of Justice, State of Montana (Doc. #13625)...................................... 19

Commonwealth of Pennsylvania Department of Agriculture (Doc. #14465) ...... 20

U.S. House of Representative Committee on Small Business (Doc. #14751) ..... 21

State of Oklahoma (Doc. #14773) ........................................................................ 23

Arctic Slope Regional Corporation (Doc. #15038) .............................................. 23

San Carlos Apache Tribe (Doc. #15067).............................................................. 25

Samuel T. Biscoe, County Judge (Doc. #4876).................................................... 25

Bonner County Board of Commissioners (Doc. #4879)....................................... 25

Monroe County, New York (Doc. #5555.1)......................................................... 25

Karnes County Soil and Water Conservation District (Doc. #6793).................... 26

County of Butler, Board of Commissioners (Doc. #6918.1)................................ 26

White Pine County Board of County Commissioners, White Pine County, Nevada 

et al. (Doc. #6936.1) ............................................................................................. 29

Murray County Board of Commissioners (Doc. #7528.1) ................................... 30

Southeast Texas Groundwater Conservation District (Doc. #8142)..................... 30

La Plata Water Conservancy District (Doc. #8318) ............................................. 30

Southeast Texas Groundwater Conservation District (Doc. #8419.1).................. 31

Beaver County Commission (Doc. #9667)........................................................... 31

Imperial County Board of Supervisors (Doc. #10259)......................................... 34

Richland County, Montana Office of County Commissioners (Doc. #10551)..... 35

Sanpete County Commissioners (Doc. #11978)................................................... 35

Washington County Board of County Commissioners (Doc. #12340) ................ 37

Weld County, Colorado (Doc. #12343)................................................................ 37

City of Palo Alto, California (Doc. #12714)......................................................... 37

Board of Commissioners, Carbon County, Utah (Doc. #12738).......................... 37

Mille Lacs County Board of Commissioners (Doc. #13198) ............................... 37

Lafourche- Terrebonne Soil and Water Conservation District (Doc. #13582)..... 38

Parish of Jefferson (Doc. #14574.1) ..................................................................... 39

Waters of the United States Coalition (Doc. #14589) .......................................... 39

Republican River Water Conservation District (Doc. #15621)............................ 43

Meeteetse Conservation District (Doc. #16383)................................................... 44

Hot Springs County Commission (Doc. #16676)................................................ 44

Colusa County Board of Supervisors (Doc. #17002) .......................................... 44

Sienna Plantation Levee Improvement District (Doc. #17455)............................ 45

Fountain Green City Council (Doc. #18899)........................................................ 46

Hidalgo Soil and Water Conservation District, Lordsburg, New Mexico (Doc. 

#19450) ................................................................................................................. 46
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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California State Association of Counties (Doc. #9692)........................................ 46

Florida Association of Counties (Doc. #10193) ................................................... 47

Nebraska Association of Resource Districts (Doc. #11855) ................................ 48

Florida Rural Water Association (Doc. #14897).................................................. 49

Fort Bend Flood Management Association (Doc. #15248).................................. 49

Oklahoma Municipal League (Doc. #16526) ....................................................... 50

Minnesota Chamber of Commerce (Doc. #16473)............................................... 50

Louisiana Landowners Association (Doc. #16490).............................................. 51

Mountain States Legal Foundation (Doc. #15113).............................................. 51

Western Urban Water Coalition (Doc. #15178) ................................................... 55

Western Urban Water Coalition (Doc. #15178.1) ................................................ 56

Automotive Recyclers Association (Doc. #15343) .............................................. 56

U.S. Chamber of Commerce, et al. (Doc. #14115)............................................... 57

California Building Industry Association, et al. (Doc. #14523)........................... 61

New Mexico Association of Commerce and Industry (Doc. #14638).................. 62

Federal Stormwater Association (Doc. #15161).................................................. 62

Steel Manufacturers Association, et al. (Doc. #15416) ........................................ 65

Landmark Legal Foundation (Doc. #15364) ........................................................ 67

Atlantic Legal Foundation (Doc. #15253)............................................................ 68

Texas Chemical Council (Doc. #15433)............................................................... 69

United States Steel Corporation (Doc. #15450) .................................................. 71

Idaho Association of Commerce & Industry (Doc. #15461)................................ 71

Coalition of Local Governments (Doc. #15516) .................................................. 72

Dow Chemical Company (Doc. #15408).............................................................. 73

National Association of Manufacturers (Doc. #15410)........................................ 73

Federal Water Quality Coalition (Doc. #15822.1)................................................ 81

Landmark Legal Foundation (Doc. #15364) ........................................................ 96

Western States Land Commissioners Association (Doc. #19453) ....................... 96

Southpace Properties, Inc. (Doc. #6989.1) ........................................................... 96

Kolter Land Partners and Manatee-Sarasota Building Industry Association (Doc. 

#7938.1) ................................................................................................................ 97

Homebuilders Association of Michigan (Doc. #7994)......................................... 97

Construction Industry Round Table (Doc. #8378) ............................................... 98

DreamTech Homes, Inc. (Doc. #11012)............................................................... 99

Building Industry Association of Washington (Doc. #13622) ........................... 100

Pennsy Supply, Inc. (Doc. #15255) .................................................................... 100

Associated General Contractors of America (Doc. #14602) .............................. 100

Home Builders Association of Mississippi (Doc. #19504) ................................ 101

Kansas Independent Oil & Gas Association (Doc. #12249)............................... 101

The Mosaic Company (Doc. #14640)................................................................. 104

American Petroleum Institute Energy (Doc. #15115) ........................................ 110

Ohio Oil and Gas Association (Doc. #15122) .................................................... 116

Sinclair Oil Corporation (Doc. #15142) ............................................................. 117

Illinois Coal Association (Doc. #15517) ............................................................ 118

Independent Petroleum Association of New Mexico (Doc. #15653)................. 119

Marcellus Shale Coalition (Doc. #18880) .......................................................... 119
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Snyder Associated Companies, Inc. (Doc. #18825) ........................................... 120

Halliburton Energy Services, Inc. (Doc. #19458)............................................... 120

Georgetown Sand & Gravel (Doc. #19566) ....................................................... 122

Montana Wool Growers Association (Doc. #5843.1) ....................................... 122

National Sorghum Producers (Doc. #10847)...................................................... 123

United Farm Credit System (Doc. #12722)........................................................ 124

Louisiana Cotton and Grain Association (Doc. #12752).................................... 124

Colorado Farm Bureau (Doc. #12829) ............................................................... 124

Bayless and Berkalew Co. (Doc. #12967).......................................................... 125

Pershing County Water Conservation District (Doc. #12980) ........................... 125

Nebraska Cattlemen (Doc. #13018.1)................................................................. 125

North Dakota Soybean Growers Association (Doc. #14121)............................. 126

Sugar Cane Growers (Doc. #14283)................................................................... 126

Wyoming Farm Bureau Federation (Doc. #14406)............................................ 126

LeValley Ranch, Ltd. (Doc. #14540).................................................................. 127

California Association of Winegrape Growers (Doc. #14593) .......................... 127

American Soybean Association (Doc. #14610).................................................. 127

National Alliance of Forest Owners (Doc. #15247)........................................... 128

Ranchers - Cattlemen Action Legal Fund USA (Doc. #15440) ......................... 128

Multiple Agricultural Associations (Doc. #16357.1) ......................................... 129

Pershing County Water Conservation District (Doc. #16519) .......................... 131

Glenn-Colusa Irrigation District (Doc. #16635)................................................. 132

Goehring Vineyards, Inc. (Doc. #19464)............................................................ 133

Iowa Poultry Association (Doc. #19589)............................................................ 134

New Mexico Cattle Growers Association (Doc. #19595) .................................. 135

Association of American Railroads (Doc. #15018.1)......................................... 135

American Road and Transportation Builders Association (Doc. #15424) ......... 136

North Carolina Aggregates Association (Doc. #6938.1).................................... 139

Associated Equipment Distributors (Doc. #13665)............................................ 140

American Electric Power (Doc. #15079)............................................................ 140

Western States Water Council (Doc. #9842)...................................................... 143

San Juan Water Commission (Doc. #13057)...................................................... 144

Florida Power & Light Company (Doc. #13615)............................................... 144

Utility Water Action Group (Doc. #15016)........................................................ 144

Irrigation and Electrical Districts Association of Arizona (Doc. #15832) ......... 149

Basin Electric Power Cooperative (Doc. #16447).............................................. 150

ChooseCleanWater Coalition (Doc. #11773.1) ................................................. 151

Southern Illinois Power Cooperative (Doc. #15486).......................................... 151

Washington County Water Conservancy District (Doc. #15536) ...................... 152

Southern Law Center et al. (Doc. #13610) ......................................................... 154

National Wildlife Federation (Doc. #15020)...................................................... 158

American Rivers (Doc. #15372)......................................................................... 162

Sierra Club (Doc. #15446).................................................................................. 169

Southeastern Legal Foundation, Inc. (Doc. #16592).......................................... 170

Competitive Enterprise Institute (Doc. #15127)................................................. 172
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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Citizen’s Advisory Commission on Federal Areas, State of Alaska(Doc. #16414)

............................................................................................................................. 182

Red River Valley Association (Doc. #16432) .................................................... 186

Center for Biological Diversity, Center for Food Safety and Turtle Island 

Restoration network (Doc. #15233).................................................................... 188

The Washington Legal Foundation (Doc. #5503) .............................................. 188

National Federation of Independent Business (Doc. #8319).............................. 188

The Association of State Wetland Managers (Doc. #14131) ............................. 189

South Park Coalition (Doc. #0160)..................................................................... 190

Texas Conservative Coalition (Doc. #14528)..................................................... 190

Friends of the Rappahannock (Doc. #15864) ..................................................... 191

Common Sense Nebraska (Doc. #14607)........................................................... 191

Missouri and Associated Rivers Coalition (Doc. #15528) ................................. 201

Regulatory Environmental Group for Missouri (Doc. #16337.1)....................... 202

Michigan United Conservation Clubs (Doc. #16395) ........................................ 203

West Virginia Rivers Coalition (Doc. #17028) .................................................. 203

Greater Fort Bend Economic Development Council (Doc. #18009).................. 204

Mercatus Center, George Mason University (Doc. #12754).............................. 205

George Washington University Regulatory Studies Center (Doc. #13563)....... 206

American Legislative Exchange Council (Doc. #19468) ................................... 208

United States House of Representatives, Committee on Science, Space, and 

Technology (Doc. #16386)................................................................................. 208

Senate Committee on Environment and Public Works, et al. (Doc. #16564) .... 209

Michael Bamford, Director, The Property Which Water Occupies (Doc. #8610)

............................................................................................................................. 214

10.1. TNWS, INTERSTATE WATERS, TERRITORIAL SEAS, IMPOUNDMENTS.......................... 214

AGENCY SUMMARY RESPONSE:................................................................................. 214

SPECIFIC COMMENTS ................................................................................................. 215

National Association of State Departments of Agriculture (Doc. #15389)........ 215

Waters Advocacy Coalition (Doc. #17921.1)..................................................... 215

Washington County Water Conservancy District (Doc. #15536) ...................... 215

10.1.1. Traditional Navigable Waters (TNWs)..................................................................... 216

AGENCY SUMMARY RESPONSE.................................................................................. 216

SPECIFIC COMMENTS ................................................................................................. 217

District 5, Siskiyou County, Yreka, CA (Doc. #3099)....................................... 217

Offices of the Attorney Generals of Oklahoma, West Virginia and Nebraska (Doc. 

#7988) ................................................................................................................. 227

Texas Commission on Environmental Quality (Doc. #14279.1)........................ 229

Consolidated Drainage District #1, Mississippi County, MO (Doc. #6254)...... 230

Jefferson Mining District (Doc. #15706)............................................................ 230

Waters Advocacy Coalition (Doc. #17921.1)..................................................... 232

Texas Association of Builders (Doc. #16516).................................................... 248

Barrick Gold of North America (Doc. # 16914)................................................. 249

Oregon Cattlemen’s Association (Doc. #5273.1)............................................... 252

Montana Wool Growers Association, (Doc. #5843.1) ....................................... 253

Maury County Farm Bureau (Doc. #9728)......................................................... 254
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Kansas Agricultural Alliance (Doc. #14424)...................................................... 254

National Corn Growers Association (Doc. #14968)........................................... 254

Union Pacific Railroad Company (Doc. # 15254).............................................. 255

National Federation of Independent Business (Doc. #8319).............................. 266

Environmental Defense Fund (Doc. #15352)..................................................... 267

Guardians of the Range (Doc. #14960) .............................................................. 267

Hackensack Riverkeeper et al. (Doc. #15360).................................................... 268

10.1.2. Interstate Waters....................................................................................................... 269

AGENCY SUMMARY RESPONSE:................................................................................. 269

SPECIFIC COMMENTS ................................................................................................. 269

Hon. Marcia H. Armstrong ,Supervisor District 5, Siskiyou County (Doc. 

#3099.1) .............................................................................................................. 269

Florida Department of Agriculture and Consumer Services (Doc. #10260) ...... 279

Barona Band of Mission Indians (Doc. #10966) ................................................ 280

Whitman County Commissioners, Colfax, WA (Doc. #12860)......................... 283

Delta Board of County Commissioners (Doc. #14405)...................................... 283

Utah Association of Counties (Doc. #14756)..................................................... 283

Waters Advocacy Coalition (Doc. #19721.1)..................................................... 284

Woodlands Development Company (Doc. #12259)........................................... 285

Montana Wool Growers Association (Doc. #5843.1) ........................................ 285

Ducks Unlimited (Doc. #11014)......................................................................... 286

Protect Americans Now, Board of Directors (Doc. #12726).............................. 287

Guardians of the Range (Doc. #14960) .............................................................. 288

10.1.2.1 Legal Rationale for Jurisdiction Over Interstate Waters ............................... 289

AGENCY SUMMARY RESPONSE:................................................................................. 289

SPECIFIC COMMENTS ................................................................................................. 289

Coalition of Local Governments (Doc. #15516) ................................................ 289

Greater Houston Builders Association (Doc. #15465) ....................................... 289

Western Growers Association (Doc. #14130) .................................................... 290

Jensen Livestock and Land LLC (Doc. #15540) ................................................ 290

Hackensack Riverkeeper et al. (Doc. #15360).................................................... 291

10.1.2.2 Legal Rationale for Protecting Waters with a SN to Interstate Waters......... 291

AGENCY SUMMARY RESPONSE.................................................................................. 291

SPECIFIC COMMENTS ................................................................................................. 291

Attorney General of Texas (Doc. #5143.2) ........................................................ 291

Wyoming Wool Growers Association (Doc. #15037)........................................ 292

10.1.3. Territorial Seas......................................................................................................... 292

10.1.4. Impoundments........................................................................................................... 292

10.2. ADJACENT WATERS......................................................................................................... 293

AGENCY SUMMARY RESPONSE.................................................................................. 293

SPECIFIC COMMENTS ................................................................................................. 293

Offices of the Attorney Generals of Oklahoma, West Virginia and Nebraska (Doc. 

#7988) ................................................................................................................. 293

Florida Department of Agriculture and Consumer Services (Doc. #10260) ...... 293

West Virginia Department of Environmental Protection (Doc. # 15415) .......... 294
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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South Carolina Department of Health and Environmental Control (Doc. #16491)

............................................................................................................................. 297

New Mexico Environment Department (Doc. #16552)...................................... 298

County of Butler Board of Commissioners (Doc. #6918.1)............................... 301

Murray County, Minnesota, Board of Commissioners (Doc. #7528.1).............. 303

Rio Grande Water Conservation District (Doc. #15124).................................... 304

Utah Association of Counties (Doc. #14756)..................................................... 308

Atlantic Legal Foundation (Doc. #15253).......................................................... 313

National Association of Manufacturers (Doc. #15410)...................................... 314

Waters Advocacy Coalition (Doc. #17921.1)..................................................... 318

National Association of Home Builders (Doc. #19540)..................................... 321

American Petroleum Institute (Doc. #15115)..................................................... 341

Jefferson Mining District (Doc. #15706)............................................................ 343

Gas Processors Association (Doc. #16340)........................................................ 344

Home Builders Association of Tennessee (Doc. #19581).................................. 344

Barrick Gold of North America (Doc. #16914).................................................. 344

Independent Petroleum Association of New Mexico (Doc. #16915.1).............. 345

Petroleum Association of Wyoming (Doc. #18815)........................................... 348

Montana Wool Growers Association (Doc. #5843.1) ........................................ 350

Red River Joint Water Resource Board (Doc. #4227)........................................ 351

National Cattlemen’s Beef Association (Doc. #8674)........................................ 351

National Alliance of Forest Owners (Doc. #15247)........................................... 352

Beet Sugar Development Foundation (Doc. #15368)......................................... 355

Weyerhaeuser Company (Doc. #15392)............................................................. 359

Jensen Livestock and Land LLC (Doc. #15540) ................................................ 361

Bayer CropScience (Doc. #16354) ..................................................................... 367

Glenn-Colusa Irrigation District (Doc. #16635)................................................. 368

Association of American Railroads (Doc. #15018.1)......................................... 369

Union Pacific Railroad Company (Doc. #15254)............................................... 370

Airports Council international (Doc. #16370).................................................... 372

Tri-State Generation and Transmission Association, Inc. (Doc. #16392).......... 372

Washington County Water Conservancy District (Doc. #15536) ...................... 374

National Wildlife Federation (Doc. #15020)...................................................... 376

Natural Resources Defense Council (Doc. #15437)........................................... 379

Waterkeeper Alliance et al. (Doc. # 16413) ....................................................... 382

Southeastern Legal Foundation, Inc. (Doc. #16592).......................................... 390

Community Watersheds Clean Water Coalition, Inc. (Doc. #16935) ................ 392

George Washington University Regulatory Studies Center (Doc. #13563)....... 394

Endangered Habitats League (Doc. #3384)........................................................ 395

Coalition of Alabama Waterways (Doc. #15101)............................................... 395

Regulatory Environmental Group for Missouri (Doc. #16337.1)....................... 397

Upper Mississippi, Illinois and Missouri Rivers Association (Doc. #19563) .... 398

10.3. OTHER WATERS............................................................................................................... 400

AGENCY SUMMARY RESPONSE.................................................................................. 400

SPECIFIC COMMENTS ................................................................................................. 401

Cass County Government (Doc. #5491)............................................................. 401
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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Offices of the Attorney Generals of Oklahoma, West Virginia and Nebraska (Doc. 

#7988) ................................................................................................................. 401

Arizona State Land Department (Doc. #14973) ................................................. 402

North Carolina Department of Environment and Natural Resources (Doc. #14984)

............................................................................................................................. 403

Tennessee Department of Environment and Conservation (Doc. #15135) ........ 405

Indiana Department of Environmental Management (Doc. #16440) ................. 405

National Association of Conservation Districts (Doc. #12349) ......................... 406

Parish of Jefferson (Doc. #14574.1) ................................................................... 407

GBMC & Associates (Doc. #15770) .................................................................. 407

Waters Advocacy Coalition (Doc. #17921.1)..................................................... 408

Coeur Mining Inc. (Doc. #16162)....................................................................... 408

Pennsylvania Aggregates and Concrete Association (Doc. #16353).................. 409

Independent Petroleum Association of America, et al. (Doc. #18864) .............. 409

National Cattlemen’s Beef Association (Doc. #8674)........................................ 417

California Association of Winegrape Growers (Doc. #14593) .......................... 417

County of San Diego (Doc. #14782) .................................................................. 418

Ingram Barge Company (Doc. #14796).............................................................. 419

National Wildlife Federation (Doc. #15020)...................................................... 419

Environmental Defense Fund (Doc. #15352)..................................................... 421

Waterkeeper Alliance, et al. (Doc. #16413) ....................................................... 422

Sierra Club, Cumberland Chapter (Doc. # 15466) ............................................. 427

Coalition of Alabama Waterways (Doc. #15101)............................................... 427

Center for Environmental Law and Policy (Doc. #15431)................................. 429

Nucor Corp. (Doc. #14963) ................................................................................ 433

10.4. SIGNIFICANT NEXUS ........................................................................................................ 434

AGENCY SUMMARY RESPONSE:................................................................................. 434

SPECIFIC COMMENTS ................................................................................................. 434

Office of the Governor of Iowa (Doc. #8377).................................................... 434

Florida Department of Agriculture (Doc. #10260)............................................. 435

Washington State Senate (Doc. #10871) ............................................................ 437

Texas Comptroller of Public Accounts (Doc. #10952) ...................................... 437

Department of Justice, State of Montana (Doc. #13625).................................... 437

Attorney General of Texas (Doc. #5143) ........................................................... 438

State of Idaho (Doc. #9834)................................................................................ 439

Office of the Governor, State of Wyoming (Doc. #14584)................................ 439

Office of the Governor, State of Utah (Doc. #16534) ........................................ 440

Arizona State Land Department (Doc. #16903) ................................................. 440

Florida League of Cities, Inc. (Doc. #14466)..................................................... 440

Board of County Commissioners of Otero County, New Mexico (Doc. #14321)

............................................................................................................................. 441

City of Newport News (Doc. #10956)................................................................ 444

Riverside County Flood Control and Water Conservation District (Doc. #14581)

............................................................................................................................. 445

Waters of the United States Coalition (Doc. #14589) ........................................ 445

San Joaquin Tributaries Authority (Doc. #14992).............................................. 447
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National Association of Flood & Stormwater Management Agencies (Doc. 

#13613) ............................................................................................................... 448

Utah Association of Counties (Doc. #14756)..................................................... 449

California Building Industry Association, et al. (Doc. #14523)......................... 450

Coalition of Local Governments (Doc. #15516) ................................................ 451

Salinas Valley Water Coalition (Doc. #15625) .................................................. 452

John Deere & Company (Doc. #14136.1) .......................................................... 453

Corporate Communications and Sustainability, Domtar Corporation (Doc. 

#15228) ............................................................................................................... 454

Land Improvement Contractors of America (Doc. #8541)................................. 455

Clearwater Watershed District, et al. (Doc. #9560.1)......................................... 455

U.S. Chamber of Commerce, et al. (Doc. #14115)............................................. 456

Portland Cement Association (Doc. #13271) ..................................................... 458

National Stone Sand and Gravel Association (Doc. #14412)............................. 463

Tennessee Mining Association (Doc. #14582)................................................... 465

Devon Energy Corporation (Doc. #14916)......................................................... 466

American Petroleum Institute (Doc. #15115)..................................................... 467

Illinois Coal Association (Doc. #15517) ............................................................ 470

Gas Producers Association (Doc. #16340)......................................................... 470

Briscoe Ivester & Bazel LLP (Doc. # 17451)..................................................... 472

Washington Farm Bureau (Doc. #3254.2).......................................................... 474

National Sorghum Producers (Doc. #10847)...................................................... 474

Missouri Agribusiness Association (Doc. #13025) ............................................ 476

National Cattlemen’s Beef Association (Doc. #8674)........................................ 476

Western Growers Association (Doc. #14130) .................................................... 477

National Alliance of Forest Owners (Doc. #15247)........................................... 478

Eddyann U. Filippini Family Trust (Doc. #18873)............................................. 479

Airlines for America (Doc. #15439)................................................................... 480

Ingram Barge Company (Doc. #14796).............................................................. 487

Southern Company (Doc. #14134) ..................................................................... 487

Westlands Water District (Doc. #14414)............................................................ 488

Crop Life (Doc. #14630.1).................................................................................. 490

Arizona’s Cooperatives G & T (Doc. #14901)................................................... 490

West Bay Sanitary District, et. al (Doc. #16610) ............................................... 491

San Juan Water Commission (Doc. #16931)...................................................... 497

Edison Electric Institute (Doc. #15032).............................................................. 500

Nucor Corp. (Doc. #14963) ................................................................................ 501

Ducks Unlimited (Doc. #11014)......................................................................... 501

Natural Resources Defense Council (Doc. #15437)........................................... 501

Chesapeake Bay Foundation (Doc. #14620) ...................................................... 502

Washington Legal Foundation (Doc. #5503)...................................................... 503

National Federation of Independent Business (Doc. #8319).............................. 505

National Waterways Conference, Inc. (Doc. #12979)........................................ 506

Board of Directors, Protect Americans Now (Doc. #12726).............................. 508

Environmental Law Institute (Doc. #16406) ...................................................... 510

Coalition of Alabama Waterways (Doc. #15101)............................................... 514
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Hackensack Riverkeeper et al. (Doc. #15360).................................................... 516

Everglades Law Center and Center for Biological Diversity (Doc. #15545)..... 516

George Washington University Regulatory Studies Center (Doc. #13563)....... 517

Michael Bamford, Director, The Property Which Water Occupies (Doc. #8610)

............................................................................................................................. 518

10.5. DITCHES ........................................................................................................................... 519

AGENCY SUMMARY RESPONSE:................................................................................. 519

SPECIFIC COMMENTS ................................................................................................. 519

Waterlaw (Doc. #13053)..................................................................................... 519

Waters Advocacy Coalition (Doc. #19721.1)..................................................... 520

Missouri Agribusiness Association (Doc. #13025) ............................................ 521

Multiple Agricultural Agencies (Doc. #16357.1)............................................... 521

Association of American Railroads (Doc. #15018.1)......................................... 521

10.6. FEATURES AND WATERS NOT JURISDICTIONAL............................................................. 522

AGENCY SUMMARY RESPONSE.................................................................................. 522

SPECIFIC COMMENTS ................................................................................................. 522

Waters of the United States Coalition (Doc. #14589) ........................................ 522

Coalition of Real Estate Associations (Doc. #5058.2) ....................................... 523

10.7. TRIBUTARIES.................................................................................................................... 528

AGENCY SUMMARY RESPONSE.................................................................................. 528

SPECIFIC COMMENTS ................................................................................................. 528

Barona Band of Mission Tribes (Doc. #2476).................................................... 528

Attorney General of Texas (Doc. #5143.2) ........................................................ 530

Offices of the Attorney Generals of Oklahoma, West Virginia and Nebraska (Doc. 

#7988) ................................................................................................................. 530

Citizen’s Advisory Commission on Federal Areas, Alaska Department of Natural 

Resources (Doc. #16596).................................................................................... 531

San Bernadino Department of Public Works (Doc. #16489) ............................. 532

Snowmass Water and Sanitation District (Doc. #16529) ................................... 536

City of Jackson Department of Public Works (Doc. #18937) ............................ 537

Maui County (Doc. #19543)............................................................................... 538

North Dakota Water Resource Districts Association (Doc. #5596) ................... 538

California Building Industry Association (Doc. #14523)................................... 539

Florida Department of Agriculture and Consumer Services (Doc. #10260) ...... 539

Texas Commission of Environmental Quality (Doc. #14279.1) ........................ 540

Office of the Governor, State of Wyoming (Doc. #14584)................................ 541

City of Newport News (Doc. #10956)................................................................ 541

Association of California Water Agencies (Doc. #12978)................................. 542

Utah Association of Counties (Doc. #14756)..................................................... 542

Coalition of Local Governments (Doc. #15516) ................................................ 543

Landmark Legal Foundation (Doc. #15364) ...................................................... 544

Waters Advocacy Coalition (Doc. #17921.1)..................................................... 544

Idaho Association of Commerce & Industry (Doc. #15461).............................. 545

Portland Cement Association (Doc. 13271) ....................................................... 547

Home Builders Association of Central Arizona (Doc. #14285)......................... 548
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

11

Arizona Mining Association (Doc. #13951)....................................................... 549

West Virginia Independent Oil and Gas Association (Doc. #15406)................. 552

Halliburton Energy Services, Inc. (Doc. # 15509).............................................. 553

American Petroleum Institute (Doc. #15115)..................................................... 554

Oregon Cattlemen’s Association (Doc. #5273.1)............................................... 555

Alameda County Cattlewomen (Doc. #8674)..................................................... 555

National Sorghum Producers (Doc. #10847)...................................................... 556

Alameda County Cattlewomen (Doc. #8674)..................................................... 556

Michigan Farm Bureau (Doc. #10196)............................................................... 558

California Association of Winegrape Growers (Doc. #14593) .......................... 558

Multiple Agricultural Organizations (Doc. #16357.1) ....................................... 558

Goehring Vineyards, Inc. (Doc. #19464)............................................................ 559

Clearwater Watershed District, et. al. (Doc. #9560.1)........................................ 560

North Dakota EmPower Commission (Doc. #13604) ........................................ 560

Murray Energy Corporation (Doc. #13954) ....................................................... 561

Southern Company (Doc. #14134) ..................................................................... 561

Association of Electric Companies of Texas, Inc. (Doc. #16433)...................... 562

Chesapeake Bay Foundation (Doc. #14620) ...................................................... 563

National Federation of Independent Business (Doc. #8319).............................. 563

National Waterways Conference (Doc. #12979)................................................ 564

Southeastern Legal Foundation, Inc. (Doc. #16592).......................................... 565

Coalition of Alabama Waterways (Doc. #15101)............................................... 566

10.8. SUPPLEMENTAL COMMENTS ON LEGAL ANALYSIS........................................................ 568

AGENCY SUMMARY RESPONSE.................................................................................. 568

SPECIFIC COMMENTS ................................................................................................. 568

Eric W. Nagle (Doc. #0009.1) ............................................................................ 568

M. Young (Doc. #1430)...................................................................................... 568

New York State Attorney General (Doc. #10940).............................................. 569

Office of the Board Attorney, Board of Supervisors Jackson County, Mississippi 

(Doc. #12262) ..................................................................................................... 569

Duke Energy (Doc. #13029)............................................................................... 570

Todd Wilkinson (Doc. #13443).......................................................................... 571

Florida Power & Light Company (Doc. #13615)............................................... 571

Florida Stormwater Association (Doc. #14613)................................................. 571

Continental Resources, Inc. (Doc. #14655)........................................................ 572

The Heritage Foundation (Doc. #15055)............................................................ 575

American Foundry Society (Doc. #15148)......................................................... 576

National Alliance of Forest Owners (Doc. #15247)........................................... 576

Washington County Water Conservancy District (Doc. #15536) ...................... 580

Kenny Fox (Doc. #15754) .................................................................................. 580

City of Jackson, Mississippi (Doc. #15766)....................................................... 581

Independent Petroleum Association of New Mexico (Doc. #16915.1).............. 582

Cook County, Minnesota, Board of Commissioners (Doc. #17004).................. 583

Arizona Rock Products Association (Doc. #17055)........................................... 583

Atlantic Legal Foundation (Doc. #17361).......................................................... 584

Georgia Association of Manufacturers (Doc. #18896)....................................... 584
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

12

United States Senate (Doc. #19309)................................................................... 584

M. Sedlock (Doc. #19524).................................................................................. 585

Blake Follis (Doc. #19973)................................................................................. 588

ATTACHMENTS AND REFERENCES............................................................................................. 588

Topic 10. COMMENTS ON LEGAL ANALYSIS 

Agency Summary Response

For the reasons articulated in the Preamble to the rule, the Technical Support Document, the 

Science Report, and the administrative record for the rule, the agencies conclude that the rule is 

consistent with the Clean Water Act, the Supreme Court decisions, and the Constitution.

Specific Comments

Offices of the Attorney Generals of Oklahoma, West Virginia, Nebraska (Doc. #7988)

10.1 The Agencies should reverse course immediately. As explained below, numerous features in 

the Proposed Rule are illegal. Under the Supreme Court’s CWA cases, these aspects of the 

Proposed Rule exceed the statutory requirements of the CWA, the federalism policies 

embodied in the CWA, and the outer boundaries of Congress’ constitutional authority. The 

Agencies should thus withdraw the Proposed Rule and replace it with a narrow, commonsense alternative that gives farmers, developers, and homeowners clear guidance as to the 

narrow and clearly-defined circumstances where their actions require them to obtain a federal 

permit under the CWA. In order to help develop that common-sense alternative, we urge the 

Agencies to meet with State officials, who can help the Agencies understand the careful 

measures the States are already taking to protect the lands and waters within their borders. (p. 

2)

Agency Response: The rule is consistent with the Clean Water Act, the Supreme 

Court decisions, and the Constitution. Technical Support Document, I.A and I.C. 

The rule provides increased clarity and certainty. Preamble, II and IV. The 

agencies met extensively with State officials to discuss the proposed rule. Preamble 

VI.E and federalism report in the docket.

Florida Department of Agriculture and Consumer Services (Doc. #10260)

10.2 The Environmental Protection Agency (EPA) and the United States Army Corps of 

Engineers (Corps) have alleged that the proposed rule changes do not expand the 

jurisdiction of the Clean Water Act (CWA or Act). However, an initial analysis of the 

proposed regulations, performed by the Florida Department of Agriculture and Consumer 

Services (Department), indicates otherwise. The Department’s analysis suggests that the 

Corps’s jurisdictional wetland determinations will differ before and after the proposed 

rule is promulgated. The following comments on the legal jurisdiction of the CWA 

cannot reach the subject of how the EPA and the Corps (the agencies) currently interpret 

and enforce the CWA relative to what waters are included and, consequently, whether the 

current application will functionally change in response to the change in the rule. This

commentary is therefore limited to (1) what the plain language states in the current rule, 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

13

(2) what the Supreme Court has held regarding the permissible interpretation of that 

language, taking into account Congress’s authority and legislative intent, (3) how the 

proposed rule does not comply with the Supreme Court’s holdings relative to the plain 

language and permissible interpretations of the statute, and (4) how the proposed rule 

fails to conform to general tenets of constitutional limits on Congressional power and the 

Supreme Court dicta in the CWA cases regarding such power. It is based upon an 

analysis of these subjects that the permissibility and functional consistency of the 

proposed rule is called into serious doubt. (p. 62)

Agency Response: The rule is narrower in scope than the existing regulations. 

Technical Support Document, I.B. The rule is consistent with the Clean Water Act, 

the Supreme Court decisions, and the Constitution. Technical Support Document, 

I.A and I.C. 

10.3 Over the course of CWA history, the Supreme Court has ruled multiple times on the 

agencies’ interpretations of the extent of CWA jurisdiction and the definition of “waters 

of the United States.” See U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); 

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 

159 (2001); Rapanos v. U.S., 547 U.S. 715 (2006). It appears this rule change expands 

the definition of “waters of the U.S.” beyond the position taken by the EPA and Corps 

before 2006, a stance that already led to a plurality decision by the U.S. Supreme Court in 

Rapanos regarding proper federal jurisdiction under the CWA. The regulations in effect 

at the time of Rapanos, which are currently in effect, define “waters of the United States” 

as: 

1. All waters which are currently used, or were used in the past, or may be 

susceptible to use in interstate or foreign commerce, including all waters which 

are subject to the ebb and flow of the tide; 

2. All interstate waters including interstate wetlands; 

3. All other waters such as interstate lakes, rivers, streams (including intermittent 

streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet 

meadows, playa lakes, or natural ponds, the use, degradation or destruction of 

which could affect interstate or foreign commerce . . . ; 

4. All impoundments of waters otherwise defined as waters of the United States 

under the definition; 

5. Tributaries of waters indentified in paragraphs (a)(1) through (4) of this 

section; 

6. The territorial seas; 

7. Wetlands adjacent to waters (other than waters that are themselves wetlands) 

identified in paragraphs (1) through (6) of this section. 33 C.F.R. § 328.3(a) 

(2013). (p. 63)

Agency Response: The rule is narrower in scope than the existing regulations. 

Technical Support Document, I.B. The rule is consistent with the Clean Water Act, 

the Supreme Court decisions, and the Constitution. Technical Support Document, 

I.A and I.C. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

14

10.4 In Rapanos, a divided Court resulted in a plurality decision, with multiple concurring and 

dissenting opinions. The resulting ambiguity poses serious problems in anticipating how 

the Court will decide an issue in the future and parsing what the current status of the law 

is. A “plurality” occurs when a majority of the Court agrees upon an outcome (or 

judgment), but not upon a single rationale. Typically, “the holding of the Court may be 

viewed as that position taken by those Members who concurred in the judgments on the 

narrowest grounds....” Marks v. United States, 430 U.S. 188, 193 (1977). The 

applicability of this general rule is questionable in Rapanos because the opinions are not 

capable of being fit concentrically within one another. The Rapanos case garnered five 

written opinions, with four justices agreeing to the plurality rationale as written by Justice 

Scalia, four justices joining the dissenting opinion and rationale written by Justice 

Stevens, and Justice Kennedy writing a concurring opinion that uses a different rationale 

to reach the majority decision. 547 U.S. 715. As a consequence, some lower courts have 

followed Justice Stevens’ approach by applying either the Scalia test or the Kennedy test. 

Id. Other courts have concluded that Justice Kennedy’s concurring opinion is the 

“controlling” opinion as they view Justice Kennedy as having concurred on the narrowest 

grounds. 

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. 

10.5 In the Rapanos opinion written by Justice Scalia, the plurality holds that the term 

“navigable waters” includes something more than traditional navigable waters, but the 

qualifier “navigable” is not devoid of significance. Id. at 731. “[I]t is one thing to give a 

word limited effect and quite another to give it no effect whatever.” SWANCC, 531 U.S. 

at 172. The limited effect of “navigable” includes, at a bare minimum, the ordinary 

presence of water. Rapanos, 547 U.S. at 734. In both Riverside Bayview and SWANCC, 

as well as in Rapanos, the Court repeatedly described navigable waters as “open waters,” 

and no rational interpretation would allow typically dry channels to be described as “open 

waters.” Id. at 735 (quoting SWANCC, 531 U.S. at 167-68, 172; Riverside Bayview, 474 

U.S. at 132-34). The CWA itself includes these channels and conduits that typically carry 

intermittent flows of water in its definition of “point source.” Additionally, the CWA 

only authorized jurisdiction over “waters” not “water,” the former of which is defined 

narrowly as water as found in bodies forming geographical features such as streams, 

oceans, rivers, and lakes or the flowing or moving masses, as of waves or floods, making 

up such streams or bodies. Id. at 732. The only plausible interpretation of “waters” 

includes only those waters that are continuously present and fixed, “relatively permanent, 

standing or flowing bodies of water,” rather than “transitory puddles or ephemeral flows 

of water,” through which water only occasionally or intermittently flows, or channels that 

periodically provide drainage for rainfall. Id. at 732-33. (p. 64-65)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. 

10.6 Another aspect of the proposed rule that causes concern involves the fact that 

jurisdictional determinations of the waters and wetlands on one individual’s property may 

affect jurisdictional determinations on another’s property. If the Corps, in performing the 

case-by-case analysis reserved for “other waters,” finds that a property owner’s waters 

have a significant nexus due to the rationale of being “similarly situated” with other 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

15

waters in the region that have already been determined jurisdictional, this predicates one 

individual’s determination on another’s. There is certainly a risk that such situations 

would be rife with inconsistency as well as potentially violative of due process by not 

providing adequate notice. And as the Supreme Court has held regarding notice, “clarity 

in regulation is essential to the protections provided by the Due Process Clause of the 

Fifth Amendment.” FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012).

The agencies have announced in the Federal Register that the definition of “waters of the 

United States” under the CWA will be changed in the following locations: 33 C.F.R. Part 

328 and 40 C.F.R. Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401. While the 

notice of proposed rule cites to multiple locations where the definition will be amended, 

the current language in several of those locations does not necessarily include all “parts” 

of the current, much less the proposed, definition of “waters of the U.S.” If the full 

definition proposed by the agencies is substituted in all of the above-cited locations, the 

status quo will certainly not be preserved, if not functionally at least legally. It is very 

ambiguous what the end result of these changes would be. This uncertainty further 

deprives the public of adequate notice, infringing upon due process rights. (p. 74)

Agency Response: The proposed rule provided notice of the provisions to be 

amended consistent with the requirements of the Office of Federal Register. As the 

agencies stated in the preamble to the proposed rule, the term “navigable waters” is 

used in a number of provisions of the CWA, including the section 402 National 

Pollutant Discharge Elimination System (NPDES) permit program, the section 404 

permit program, the section 311 oil spill prevention and response program, the 

water quality standards and total maximum daily load programs under section 303, 

and the section 401 state water quality certification process. While there is only one 

CWA definition of “waters of the United States,” there may be other statutory 

factors that define the reach of a particular CWA program or provision. The rule is 

consistent with the Constitution. Technical Support Document, I.C.

10.7 Chief Justice Roberts’ concurring opinion in Rapanos suggests that had the EPA and the 

Corps completed the rulemaking contemplated in 2003, the Court would have afforded 

the agencies deference when considering the limits of the agencies’ power under the 

CWA. “Agencies delegated rulemaking authority under a statute such as the Clean Water 

Act are afforded generous leeway by the courts in interpreting the statute they are 

entrusted to administer.” Rapanos, 547 U.S. at 758 (discussing Chevron U.S.A. Inc. v. 

Natural Resources Defense Counsel, Inc., 467 U.S. 837, 842-845 (1984)). The Court has 

also held that “[w]here an administrative interpretation of a statute invokes the outer 

limits of Congress’ power, we expect a clear indication that Congress intended that 

result.” SWANCC, 531 U.S. at 172 (citing Edward J. DeBartolo Corp. v. Florida Gulf 

Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988)). For this reason and 

because they found the language in the Act to be clear, the Court in SWANCC determined 

that it would not extend Chevron deference to the “Migratory Bird Rule.” Id.

Given the deferential standard of review, and the suggestion made by Chief Justice 

Roberts, it is not surprising that the agencies are attempting the current rulemaking. 

However, it still appears that, rulemaking or not, the agencies are not attempting to 

constrain “an outer bound to the reach of their authority.” Rapanos, 547 U.S. at 758. The 

inclusion of a case-by-case jurisdictional analysis of “other waters, including wetlands, 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

16

provided that those waters alone, or in combination with other similarly situated waters, 

including wetlands, located in the same region, have a significant nexus to a traditional 

navigable water, interstate water or the territorial seas” expands the scope well beyond 

anything contemplated by Congress in passing the CWA, and does not clearly demarcate

the boundary of CWA jurisdiction. (p. 75)

Agency Response: The rule demarcates the boundaries of CWA jurisdiction. 

Preamble, IV. The rule is consistent with the Clean Water Act and Supreme Court 

decisions. Technical Support Document, I.A. and IC.

10.8 It is abundantly clear, based on the foregoing, where the agencies have divined 

inspiration for the scope and terminology of the proposed rule. However, a scientific 

basis for the rule only goes so far in providing a justification for the scope of jurisdiction 

under the CWA. The science seems to indicate that all water will be inevitably connected 

and physically mixed through subsurface connection, groundwater connection, and even 

through the processes of evaporation, condensation, and precipitation. The agencies have 

extrapolated that, by virtue of that inevitable connection, the CWA authorizes regulation 

of all water so that every molecule of water is prevented from coming in contact with 

pollutants that may degrade its biological, chemical, and physical integrity, and that will 

then ultimately degrade other waters. However, there are legal and constitutional bounds 

to the federal government’s reach under the CWA. (p. 77)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is not 

based on the “any connection theory” but is instead based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus

for specified waters, including covered tributaries and adjacent waters, and to 

provide that other certain waters may be jurisdictional where a case-specific 

determination has found a significant nexus. Preamble, III, and Technical Support 

Document, I.B, I.C. and II.

10.9 Congress cannot regulate outside of its constitutionally enumerated powers, which in this 

context is its power to regulate interstate commerce, and executive agencies like the 

Corps and the EPA cannot promulgate rules which extend beyond those powers or which 

establish jurisdiction beyond the reach of the enacted language of the CWA. The 

Supreme Court has held that “[e]ven [our] modern-era precedents which have expanded 

congressional power under the Commerce Clause confirm that this power is subject to 

outer limits.” U.S. v. Morrison, 529 U.S. 598, 608 (2000) (quoting United States v. Lopez, 

514 U.S. 549, 556-557 (1995)). The Court has warned that the scope of the interstate 

commerce power “must be considered in the light of our dual system of government and 

may not be extended so as to embrace effects upon interstate commerce so indirect and 

remote that to embrace them, in view of our complex society, would effectually obliterate 

the distinction between what is national and what is local and create a completely 

centralized government.” Id. (p. 78)

Agency Response: The rule is consistent with the Constitution. Technical 

Support Document, I.C.

10.10 While the Supreme Court has thus far avoided addressing the subject of the extent of 

federal authority under the CWA, which it has generally attributed to the Commerce 

Clause, the Court has noted the general principle that “unless Congress conveys its 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

17

purpose clearly, it will not be deemed to have significantly changed the federal-state 

balance.” United States v. Bass, 404 U.S. 336, 349 (1971). In SWANCC, the Court 

explained its avoidance of the constitutional issue by noting its assumption that 

“Congress does not casually authorize administrative agencies to interpret a statute to 

push the limit of congressional authority,” especially when the interpretation has the 

effect of altering the “federal-state framework by permitting federal encroachment upon a 

traditional state power.” SWANCC, 531 U.S. at 172-173. The federalization of all waters 

by an expansion of federal power through an “increasingly generous...interpretation of 

the commerce power of Congress,” creates “a real risk that Congress will gradually erase 

the diffusion of power between State and Nation on which the Framers based their faith 

in the efficiency and vitality of our Republic.” Garcia v. San Antonio Metropolitan 

Transit Authority, 469 U.S. 528, 583-584 (1985) (O’Connor, J., dissenting). The 

proposed rule serves to essentially federalize all waters throughout the states, 

contradicting the CWA’s stated purpose of preserving the states’ rights to plan the 

development and use of land and water resources and directly infringing on the 

Constitution’s clear limitations on federal powers. (p. 80)

Agency Response: The rule is consistent with the Constitution. Technical 

Support Document, I.C

State of New York, Office of Attorney General (Doc. #10940)

10.11 Third, by clarifying the scope of "waters of the United States," the proposed rule would 

promote predictability and consistency in the application of the law, and in turn help clear 

up a confusing body of case law that has emerged. Since the Supreme Court's plurality 

decision in Rapanos v. United States, 547 U.S. 715 (2006), a complex and confusing split 

has developed among the federal courts regarding which waters are "waters of the United 

States" and therefore within the Act's jurisdiction. The federal circuits have embraced at 

least three distinct approaches in instances of uncertain CWA jurisdiction, with some 

courts adopting Justice Kennedy's significant nexus test, some adopting the plurality's 

test, and some tending to defer to the agencies' fact-based determinations. Many courts 

have actively avoided ruling on the controlling law, highlighting the need for Agency 

clarification. The confusion and disagreement in the courts have produced inconsistent 

outcomes and contribute to the ongoing uncertainty regarding the Act's application. The 

proposed rule's clear categories of waters subject to the Act would alleviate much of the 

jurisdictional uncertainty and allow for more efficient administration of the Act. The 

rule's clarity would be of benefit to the states because it would ease some of the 

administrative burden of having to make many fact-based determinations employing 

uncertain tests. In this regard, in the rulemaking the agencies have requested comments as 

to how a final rule could ease that burden further. For these reasons we express our 

support for EPA's and the Corps' proposed rules defining the scope of waters protected 

under the CWA, and urge its promulgation by the agencies.(p. 2-3)

Agency Response: The agencies agree.

Texas Comptroller of Public Accounts (Doc. #10952)

10.12 While I appreciate the Agencies' attempts to provide more regulatory certainty and to 

reduce delays, this proposal does not appear to achieve these goals, and the methodology 

used to accomplish them is legally problematic. The Agencies are implementing a two-
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

18

pronged approach to determining Federal jurisdiction: 1) using Justice Kennedy's 

significant nexus standard set forth in Rapanos, the Agencies deem certain categories of 

waters, specifically tributaries to navigable waters, interstate waters, or the territorial 

seas, and their adjacent waters and wetlands, jurisdictional by rule because, according to 

the Agencies, these types of water bodies always have a significant nexus to those waters 

traditionally regulated by the Agencies; and 2) determining whether "other waters" are 

WOTUS using the same significant nexus analysis on a case-by-case basis. The proposal 

exceeds the scope of the law as presented in the Kennedy, dissenting, and plurality 

opinions in Rapanos.

The threshold question is whether it is reasonable to apply Justice Kennedy's significant 

nexus standard (which he applied only to "adjacent wetlands") to other specific categories 

of water bodies, such as all waters adjacent to tributaries of traditional navigable waters,

interstate waters, or wetlands, and whether it is appropriate to use that test to 

automatically deem all adjacent waters (including wetlands) jurisdictional by rule? The 

answer requires a brief review of three of the pertinent opinions in Rapanos case.

First, Kennedy did not conclude in Rapanos that all adjacent waters should or could be

automatically deemed jurisdictional. While Kennedy points out the importance of 

wetlands to WOTUS throughout his opinion (e.g., they "can perform critical functions 

related to the integrity of other waters—functions such as pollutant trapping, flood 

control, and runoff storage"), he does not conclude that all adjacent wetlands, therefore, 

should be considered per se jurisdictional. Indeed, Kennedy mentions several fact-based 

scenarios where jurisdiction might not attach. For example, the "mere adjacency to a 

tributary is insufficient as a similar ditch could just as well be located many miles from 

any navigable-in-fact water and carry only insubstantial flow toward it." He also states 

that the "quantity and regularity of flow in the adjacent tributaries may be important in 

assessing nexus." Finally, he notes that "mere hydrologic connection should not suffice in 

all cases." Kennedy simply remanded the case to the Court of Appeals for "consideration 

whether the specific wetlands at issue possess a significant nexus with navigable waters." 

The Kennedy opinion does not stand for and would not appear to support blanket 

jurisdiction as proposed in the Agencies' rule. (p. 3-4)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is based on 

the agencies’ determination of significant nexus. Preamble, III, and Technical 

Support Document, I.C. and II.

10.13 In support of their methodology, the Agencies point to the dissenting opinion in Rapanos, 

saying "the four dissenting Justices in Rapanos would have affirmed the court of appeals' 

application of the pertinent regulatory provisions, concluding that the term 'waters of the 

United States' encompasses....all tributaries and wetlands that satisfy either the plurality's 

standard or that of Justice Kennedy." However, the dissent does not support blanket or per 

se jurisdiction of all adjacent waters under all circumstances; it merely concludes that either 

standard is an appropriate mechanism for determining jurisdiction under the facts 

provided. Because neither the plurality nor the Kennedy opinion support blanket 

jurisdiction, the Agencies should not rely on this dissenting opinion as rationale for such 

a significant rule change. (p. 4)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

19

Agency Response: EPA determined that covered adjacent waters are “waters of 

the United States” based on its review of the scientific literature and consistent with 

Supreme Court decisions and the caselaw. Preamble, III and VIII, Technical 

Support Document, I.C.

10.14 Finally, this method is also unacceptable under the Plurality standard, which generally

concluded that the CWA confers jurisdiction only over waters containing a relatively

permanent flow and those adjacent wetlands possessing a continuous surface connection. (p. 

4)

Agency Response: The rule is consistent with Supreme Court decisions and the 

caselaw. Technical Support Document, I.C.

Georgia Department of Agriculture (Doc. #12351)

10.15 The goal of this revision is to clarify confusion relating to the scope of the CWA. 

However, GDA has serious concerns about the consequences that accompany the rule as 

proposed. Under the new rule, EPA jurisdiction will be expanded to include all waters 

defined as “other waters” with a “significant nexus” to navigable waters, and to the 

tributaries of these waters. The term “significant nexus” is not defined in the ruling by 

Justice Kennedy in Rapanos v. United States. As such, the agencies have taken it upon 

themselves to decide how the term is applied. GDA believes it the responsibility of 

regulatory agencies to enforce the law through rules and regulations, not to create the law 

through rules and regulations. (p. 2) 

Agency Response: This rule is promulgated pursuant to Section 501 of the CWA 

and is consistent with the statute and .and Supreme Court decisions. Technical 

Support Document, I.A. and C.

Department of Justice, State of Montana (Doc. #13625)

10.16 We are a headwaters state blessed with waters of exceptional quality, and the people of 

Montana have taken steps to fully protect that priceless resource for ourselves, our 

downstream neighbors, and all of our progeny. Those steps begin with our state 

constitution, which declares "[A]ll surface, underground, flood, and atmospheric waters 

within the boundaries of the state" to be the property of the state for the use of its people,

(Mont. Const. art. IX, §3(3)), and requires the legislature to "provide adequate remedies 

for the protection of the environmental life support system from degradation" and to 

"provide adequate remedies to prevent unreasonable depletion and degradation of natural 

resources." Mont. Cont. art. §1(3). These constitutional safeguards are implemented by 

means of the Montana Water Quality Act, Mont. Code Ann.75-5-101, et seq., a 

comprehensive water quality protection law enacted in 1971. The Montana Board of 

Environmental Review has promulgated regulations to implement the legislation, and the 

statutes and the regulations are implemented by the Montana Department of 

Environmental Quality. 

Your proposal states at least twice (Federal Register, Vol. 79, No. 76, at 22189,22192) 

that, pursuant to the U.S. Supreme Court decisions in SWANCC and Rapanos, the scope 

of regulatory jurisdiction of the CWA in the proposed rule is narrower than that under the 

existing regulations. It appears this remarkable assertion is based on the observation, at 

page 22192, that the proposal would delete the "all other waters" subsection in the rule. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

20

However, the rules which would replace the deleted subsection, including the provisions 

containing new definitions for "neighboring," "riparian area," "floodplain," "tributary," 

and "significant nexus", as well as providing for inclusion of "other waters" on a case-bycase basis, appear clearly to extend jurisdiction of your agencies far more broadly, As I 

read the proposed rules, CWA jurisdiction would extend upgradient from traditional 

navigable waters into the lands of our State, no matter how remote from traditional 

navigable waters, which host occurrences of water that, due to gravity, could conceivably 

end up in a traditional navigable water. (p. 1-2)

Agency Response: The rule is narrower in scope than the existing regulations. 

Technical Support Document, I.B.

Commonwealth of Pennsylvania Department of Agriculture (Doc. #14465)

10.17 Pennsylvania is concerned that under the proposed rule, the agencies' authority to assert 

jurisdiction is limitless. The proposed rule confuses Federal control with environmental 

protection. Where in the past, jurisdiction was based on a sitespecific analysis, the 

proposed rule creates broad categories of waters that would now be considered 

jurisdictional by rule. For example, under the proposed rule, remote features on the 

landscape that carry only minor water volumes (e.g. ephemeral drainages, storm sewers 

and culverts, directional sheet flow during storm events, drain tiles, and man-made 

drainage ditches), would now automatically be subject to federal CWA jurisdiction. 

In addition, under the proposed rule, waters and wetlands are regulated if they are 

"located within the riparian area or floodplain" of a traditional navigable water, interstate 

water, territorial sea, impoundment, or tributary, or if they have "a shallow subsurface 

hydrologic connection or confined surface hydrologic connection to such a jurisdictional 

water."1 The proposed rule does not provide a limit for the extent of riparian areas or 

floodplains, but leaves it to the agencies' "best professional judgment" to determine the 

appropriate area or flood interval.2 The proposal also fails to provide the limits 

of"shallow subsurface hydrological connections" that can render a feature jurisdictional 

but instead leaves that analysis to the best professional judgment of the agencies.3

Inconsistent with the limits established by Congress and recognized by the Supreme 

Court, the proposed rule creates sweeping jurisdiction based on connections under newly 

devised theories such as "any hydrological connection," "significant nexus," 

"aggregation," and new definitions and key regulatory terms such as "tributary," 

"adjacent waters," and "other waters." Through use of the broad definition of"tributary" 

the agencies will extend jurisdiction to any channelized feature, (e.g., ditches, ephemeral 

drainages, stormwater conveyances), wetland, lake or pond that directly or indirectly 

contributes flow to navigable waters, without any consideration of the duration or 

frequency of flow or proximity to navigable waters.4

The rule also proposes to expand "adjacent waters," to include any wetland, water, or 

feature located in an undefined floodplain or riparian area, or that has a sub-surface 

 

1

79 Fed. Reg. at 22,262·63. 

2

Id. at 22,208.

3

Id. 

4

79 Fed. Reg. at 22, 201. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

21

hydrologic connection to navigable waters.5 A new catch-all "other waters" category 

would include isolated waters and wetlands that, when aggregated with all other wetlands 

and waters in the entire watershed, have a "more than speculative or insubstantial" effect 

on traditional navigable waters.6 Under the proposed rule, ditches, groundwater and 

erosional features (i.e., gullies, rills, and swales) can serve as a subsurface hydrological 

connection that would render a feature a jurisdictional "adjacent water" or demonstrate 

that a feature has a "significant nexus" and is therefore a jurisdictional "other water."7

Such far-reaching jurisdiction over features far from navigable waters and carrying only 

minor volumes of flow was not what Congress intended and goes far beyond even the 

broadest interpretation of recent Supreme Court decisions in Solid Waste Agency of 

Northern Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172 (200 1) 

(SWANCC), and Rapanos v. United States, 547 U.S. 715 (2006). (p. 5-6)

Agency Response: The rule demarcates the boundaries of CWA jurisdiction. 

Preamble, IV. The rule is consistent with the Supreme Court decisions. Technical 

Support Document, I.C.

U.S. House of Representative Committee on Small Business (Doc. #14751)

10.18 Judicial interpretations of the RFA do not support the conclusion that the Rule only 

indirectly affects small entities. The agencies also appear to have concluded that small 

entities are affected only indirectly by the Proposed Rule because they cite a series of 

cases where the United States Court of Appeals for the District of Columbia ("D.C. 

Circuit") has concluded, for the purposes of RFA compliance, that an agency need not 

assess the effects of a regulation on small entities or on a particular group of small 

entities if they are not subject to the regulation.8 However, the agencies are incorrect and 

the regulations that were challenged in those cases can be distinguished from the 

Proposed Rule. 

In Mid-Tex Elec. Coop., Inc. v. FERC, the D.C. Circuit determined that the Federal 

Energy Regulatory Commission (FERC), which had promulgated a rule that regulated the 

wholesale rates of electric utilities, was not required to assess the rule's effects on retail 

customers of the utilities since FERC was only regulating wholesale sales.9 Similarly, in 

Cement Kiln Recycling Coalition v. EPA, the D.C. Circuit concluded that the EPA was 

not required to assess the effects of a rule that regulated the emissions of hazardous waste 

combustors on hazardous waste generators because only hazardous waste combustion 

was being regulated.10 This precept, that the RFA applies only to situations in which an 

agency directly imposes regulatory burdens on entities, was followed in a number of 

cases concluding that the development of national ambient air quality standards 

(NAAQS) under the Clean Air Act did not impose any regulatory burdens on small 

entities since activities of those entities were not circumscribed by EPA's development of 

 

5

Id. at 22,206. 

6

Id. at 22,211. 

7

Id. at 22,219.

8

79 Fed. Reg. at 22,220.

9

773 F.2d 327, 340-43 (D.C. Cir. 1985). 

10 255 F.3d 855, 868-69 (D.C. Cir. 2001). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

22

NAAQs but rather in rules imposed by states to achieve the NAAQS.11 The situation of 

the Proposed Rule is quite distinguishable from the inapplicability of the RFA to retail 

electric customers, hazardous waste generators or the adoption of NAAQS by EPA. 

The Proposed Rule will change the scope of waters subject to the jurisdiction of the 

CWA. That means small entities will have to obtain permits under§§ 402 and 404 of the 

CWA in situations in which they previously would not have needed to seek permits for 

their activities. Thus, the scope of a small entity's activities is circumscribed by the rule 

which is quite distinct from the indirect effects cases cited by the agencies in which the 

rules imposed no potential limitations on the actions of small entities. 

Nor is the agencies' argument that the Proposed Rule only indirectly regulates small 

entities any more availing because small entities would have to subsequently obtain a 

permit in a later proceeding. In Nalional Ass 'n of Home Builders v. Army Corps of Eng 

'rs12 ("Home Builders"), the Corps' issuance of certain nationwide permits (NWPs) 

under§ 404 of the CWA were challenged.13 The Corps reduced the number of acres for 

which it would issue a NWP without providing public notice and an opportunity to 

comment. 14 The Corps argued that modification in scope of the NWP did not require 

compliance with the RF A because the modification was not a rule since the only time an 

entity would be affected was when it had to apply for an individual permit.15 The D.C. 

Circuit roundly rejected that argument. The court first held that the modification of the 

standards for obtaining the NWP was a rule since entities would have to modify their 

behavior (which permit to seek) based on the change.16 The court then determined that 

small entities were directly affected because they would need to modify their projects to 

meet the new NWP or obtain an individual permit.17

The logic of the court in Home Builders could not be more clear in the Proposed Rule. 

By changing the fulcrum on which the CWA rests, the agencies are either permitting or 

delimiting activity that prior to the change would not have fallen within the scope of the 

CWA. As a result, small entities may be required to obtain permits, that prior to the 

change, they would not have. And the Home Builders court forecloses the argument that 

obtaining permits saves the agencies from the rule-like nature of imposing obligations 

 

11 Michigan v. EPA, 213 F.Jd 663, 688-89 (D.C. Cir. 2000); American Trucking Ass'n v. EPA, 175 F.3d 1027, 1043-

45

(D.C. Cir. 1999), afl'd in part and rev 'din part on other grounds sub nom., Whitman v. American Trucking Ass 'ns,

531 U.S. 457 (2001).

12 417 F.3d 1272 (D.C. Cir. 2005).

13 Id. at 1277-78. The Corps may issue general (state, regional or nationwide) permits for similar activities that when

performed separately will cause only minimal environmental effects. 33 U.S.C. § 1344(e). General permits may not 

be issued for a period of more than five years. Id. The Corps may also issue "individual permits" on a case-by-case 

basis. Id. at § 1344(a).

14 417 F.3d at 1276-77, 1284-86. This meant that entities would have to seek and comply with more detailed rules on 

individual permits rather than relying on their actions falling under the general categorical nature of a NWP.

15 Id. at 1282, 1285.

16 Id. at 1284. "[Entities} must either modify their projects to conform to the NWP thresholds and conditions (as the

Corps contemplates they will do) or refrain from building until they can secure individual permits. The NWPs 

therefore affect the [entities'] activities in a 'direct and immediate' way." Id.

17 Id. at 1284-85.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

23

directly on small entities.18 As a result, the definitions changing the scope of the CWA 

by regulation requires compliance with the RFA-either preparation of an IRFA or the 

provision of an adequately based certification. The agencies have done neither. (p. 13-14)

Agency Response: The agencies have complied with the requirements of the RFA. 

Preamble, VI.C. and Response to Comments, Compendium 11.1.

State of Oklahoma (Doc. #14773)

10.19 [T]he proposed WOTUS rule basis continues to be Justice Kennedy's concurring opinion 

in Rapanos, using the "significant nexus" test to determine if a stream meets the WOTUS 

definition. This presents a unique standard that will continue to require an individual 

determination of whether or not a stream is a WOTUS. By implementing this option, the 

Agencies will continue to allow discrepancies from one part of the country to the other. 

Jn order to promote better use of resources and bring more consistency to the permitting 

process, I recommend you base the final rule off the plurality opinion in the Rapanos 

case. Quoting Justice Scalia, WOTUS should " ... include only those relatively 

permanent, standing or continuously flowing bodies of water 'forming geographic 

features' ... ". This definition based on "relative permanence" would afford much more 

delineation of jurisdictional waters, which would help reduce the scope of federal 

jurisdiction in favor of traditionally delegated state regulation. It would also better allow 

the Agencies to develop clear maps identifying the separation between the WOTUS and 

Waters of the State. (p. 2-3)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. The rule demarcates the boundaries of CWA 

jurisdiction and provides for increased clarity and certainty by, for example, 

including new definitions, providing explicit exclusions, and only authorizing the 

agencies to make case-specific determinations in certain circumstances. Preamble, 

II and IV, and Technical Support Document, I.B. Consistent with the more than 40-

year practice under the Clean Water Act, the agencies make determinations 

regarding the jurisdictional status of particular waters almost exclusively in 

response to a request from a potential permit applicant or landowner asking the 

agencies to make such a determination. Determination and mapping of all "waters 

of the United States" would be prohibitively expensive and intrusive.

Arctic Slope Regional Corporation (Doc. #15038)

10.20 Congress intended the land grant in ANCSA to provide for economic development for 

the benefit of all Alaska Natives. The House Report made this intention clear: When 

determining the amount of land to be granted to the Natives, the Committee took into 

consideration . . . the land needed by the Natives as a form of capital for economic 

development.19 Moreover, Congress’ “economic development” intent expressly included 

mineral development. The Committee Report stated that the Regional Corporations will: 

each share equally in the mineral developments. The mineral deposits . . . [are] included 

 

18 The analysis of the agencies is particularly galling since the Home Builders involved one of the agencies that 

issued the Proposed Rule.

19 H.R. Rep. 92-523 at 5 (September 28, 1971); 1971 U.S.C.C.A.N. 2192, 2195 (emphasis added).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

24

as part of the total economic settlement. We feel it is very important for these mineral 

deposits to be available to all of the natives to further their economic future.20 In City of 

Angoon v. Marsh,

21 the Ninth Circuit addressed the conflict between resource 

development on ANCSA and ANILCA22 lands and land use restrictions that would 

prohibit such resource development (in that case, federal designation of a national 

monument including the lands at issue and a federal statutory prohibition on the sale or 

harvest of timber “within the monument”). Noting that the land conveyance to the Alaska 

Native Village Corporation of Shee Atiká, Incorporated was for the “economic and social 

needs of the Natives,”23 the court stated that “it is inconceivable that Congress would 

have extinguished their aboriginal claims and insured their economic well being by 

forbidding the only real economic use of the lands so conveyed.”24 The Ninth Circuit 

Court of Appeals further concluded that the District Court’s contrary interpretation of 

legislation “would defeat the very purpose of the conveyance to Shee Atiká . . . .”25 In 

Koniag, Inc. v. Koncor Forest Resource Management Co.,26the Ninth Circuit reaffirmed 

congressional intent for to resource development by Native Corporations. Quoting the 

House Report cited above, the Ninth Circuit stated: ANCSA’s legislative history makes 

clear that Congress contemplated that land granted under ANCSA would be put primarily 

to three uses – village expansion, subsistence, and capital for economic development. See 

H.R. Rep. 92-523 at 5, 1971 U.S.C.C.A.N. at 2195. Of these potential uses, Congress 

clearly expected economic development would be the most significant: The 40,000,000 

acres is a generous grant by almost any standard. . . . The acreage occupied by the 

Villages and needed for normal village expansion is less than 1,000,000 acres. While 

some of the remaining 39,000,000 acres may be selected by the Natives because of its 

subsistence use, most of it will be selected for its economic potential. Id. (emphasis 

added). See also Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 731 (9th Cir. 1978). 

While the Act itself does not speak directly to this congressional expectation, it is 

reflected in ANCSA’s requirement that Natives form corporations to receive and 

administer the land they receive. There would be little purpose in this requirement if 

Congress did not expect Natives to benefit from the economic development of their 

land.27 In short, Congress’s stated purpose of granting lands to Alaska Natives (to 

develop their own economic well-being on their own lands) will be substantially and 

 

20 Id.

21 749 F.2d 1413 (9th Cir. 1984), later proceedings at Angoon v. Hodel, 803 F.2d 1016 (9th Cir. 1986), cert. denied, 

Angoon v. Hodel, 484 U.S. 870 (1987).

22 The Alaska National Interest Lands Conservation Act (“ANILCA”), 16 U.S.C. §§ 410hh - 410hh-5, 460mm -

460mm-4, 539-539e and 3101-3233, also 43 U.S.C. §§ 1631-1642; December 2, 1980, as amended.

23 The Congressional findings included in ANCSA, 43 USC § 1601(b) state:

[T]he settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social 

needs of Natives, without litigation, with maximum participation by Natives in decisions affecting their rights and 

property . 

24 Id. Page 8

25 Id. at 1418. These issues appeared again in City of Angoon v. Hodel. The Ninth Circuit affirmed its decision in 

City of Angoon v. Marsh that Congress would not intend to take away the economic use of property conveyed under 

ANCSA and ANILCA.

26 39 F.3d 991 (9th Cir. 1994).

27 Id. at 996-97 (emphasis added).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

25

unfairly eroded if the Proposed Rule is allowed to go into effect in its present form. (p. 8-

9)

Agency Response: The scope of ANCSA and ANILCA is not affected by this 

rulemaking.

San Carlos Apache Tribe (Doc. #15067)

10.21 The U.S. Supreme Court has rejected the expansion of administrative authority into areas 

which are traditionally matters of state, tribal or local concern, despite a possible 

connection to interstate commerce. In SWANNC, Chief Justice Rehnquist “reaffirmed the 

proposition that the grant of authority to Congress under the Commerce Clause, though 

broad, is not unlimited.” SWAANC, 531 U.S. at 172-173 (2001). Where an administrative 

interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear 

indication that Congress intended that result. This requirement stems from our prudential 

desire not to needlessly reach constitutional issues and our assumption that Congress does 

not casually authorize administrative agencies to interpret a statute to push the limit of 

congressional authority. This concern is heightened where the administrative 

interpretation alters the federal-state framework by permitting federal encroachment upon 

a traditional state power. Id. (Citations omitted.) Congress declared its intent in the CWA 

to “recognize, preserve, and protect the primary responsibilities of States . . . to plan the 

development and use . . . of land and water resources.” 33 U.S.C. §1251(b). The proposed 

rule violates the clear intent of Congress as set forth in 33 U.S.C. §1251. (p. 5)

Agency Response: The rule is consistent with the Clean Water Act and the 

decisions of the Supreme Court. Technical Support Document, I.A and .C.

Samuel T. Biscoe, County Judge (Doc. #4876)

10.22 The definition of "waters of the United States" appropriately conforms to recent Supreme 

Court decisions. The rule neither narrows nor expands the scope of federal Clean Water 

Act programs. (p. 1)

Agency Response: The final rule is consistent with the decisions of the Supreme 

Court and is narrower in scope than existing regulations. Technical Support 

Document, I.B. and C. 

Bonner County Board of Commissioners (Doc. #4879)

10.23 The U.S. federal court system has made it clear that the EPA and USACOE had acted 

beyond fair or reasonable boundaries of jurisdiction while defining "Waters of the U.S". 

It is extremely unreasonable for local communities, state land managers, or federal

agencies to expand these jurisdictions the courts determined were excessive or unclear. (p.

2)

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C.

Monroe County, New York (Doc. #5555.1)

10.24 These additional regulations, beyond significant costs and delays to taxpayers of Monroe 

County, have little, if any, substantive environmental benefit while diverting limited 

resources from other programs that do provide environmental protection. For this reason, 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

26

Monroe County believes that any alterations to the CW A should originate in Congress 

and not in the overreach of the Administration. (p.1)

Agency Response: The agencies have concluded the benefits of the rule exceed the 

costs. Preamble, V and Economic Assessment in the docket. This rule is 

promulgated pursuant to Section 501 of the CWA.

Karnes County Soil and Water Conservation District (Doc. #6793)

10.25 First, the definition as proposed is illegal based on the Commerce Clause of the U.S. 

Constitution, the framework and goals of the CWA, Congressional intent and Supreme 

Court rulings. Each places a limit on federal jurisdiction over the nation’s waters. 

Currently, your proposed rule has practically no limit whatsoever. (p. 1)

Agency Response: The rule demarcates the boundaries of CWA jurisdiction. 

Preamble, IV. The rule is consistent with the statute, Supreme Court decisions, and 

the Constitution. Technical Support Document, I.A., B., and C.

County of Butler, Board of Commissioners (Doc. #6918.1)

10.26 Federal jurisdiction should not regulate state and local government jurisdiction land use 

for farmers and individuals. Federal jurisdictional oversight has no place restricting 

activities around small creeks and streams, including pathways and ditches carrying water 

during rainfall. This is a massive joint regulatory agency undertaking without support 

from a comprehensive direct impact investigation and input from state and local 

governments in violation of Constitutional federalism mandates. Upon reading the 

proposed rule and Supreme Court cases relied on by the EPA and the Corps, the proposed 

rule is based on a misreading, misinterpretation and misapplication of tile Supreme 

Court's decision in Rapanos v. United States, consolidated with Carabell v. United States 

Army Corps of Engineers (547 U.S. 715, 2006). The proposed rule severely broadens 

and extends agency regulatory jurisdiction where the Supreme Court determined both 

Agencies exceeded regulatory authority. The Rapanos Court interpreted "waters of the 

U.S." under the Clean Water Act (CWA) and set forth clarifications regarding the 

erroneous applications and misunderstandings in both the concurring and dissenting 

opinions cited by the EPA and Corps in their proposed rule. (p. 2)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C.

10.27 Regulation, regulation and more regulation-- will it ever stop? Not only is permitting 

regulation extremely costly, the proposed rule and its regulatory expansion violates 

Constitutional law, exceeds statutory authority, negates Congressional intent and ignores 

Supreme Court directives. The Rapanos case involved §404 of the CWA and §301 (a) 

requiring persons wishing to discharge dredged or fill material into "navigable waters" to 

obtain a permit from the Corps regarding two (2) "adjacent wetlands." Rapanos involved 

whether the CWA's jurisdictional reach extended to non-navigable wetlands that do not 

abut navigable water. Carabell involved whether §404 permitting extended to "wetlands 

hydrologically isolated from any of the "waters of the U.S." And if so, would such 

jurisdiction exceed Congress' power under the Commerce Clause? The Rapanos Court's 

remand directives to the Sixth Circuit were clear: 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

27

"because the Sixth Circuit applied the wrong standard to determine if these 

wetlands are covered 'waters of the U.S.,' and because of the paucity of the record 

in both of these cases, the lower courts should determine . . . whether the ditches 

or drains near each wetland are 'water' in the ordinary sense of containing a 

relatively permanent flow; and (if they are) whether the wetlands in question are 

'adjacent' to these 'waters' in the sense of possessing a continuous surface 

connection that created tile boundary drawing problem we addressed in United 

States v. Riverside Bayview." (474 U.S 121, 1985). 

Despite the Rapanos Court wanting the lower Court to decide the issues, the Sixth Circuit 

Court remanded the case to the "District Court with instructions to remand to the Corps 

for further proceedings consistent with the Supreme Court's decision in Rapanos." Even 

the Sixth's Circuit's remand order is in direct opposition to tile Supreme Court's directive. 

Wily was tile remand given to a party-opponent to decide tile issues instead of the 

District Court? Now, the EPA and Corps' proposed rule modifies existing regulations by 

expanding the scope of CWA's regulatory implementation in place for the last twentyfive (25) years through a misdirected and dissected incorporation of Supreme Court 

decisions. In Rapanos, the Supreme Court set forth the historical interpretation of the 

definition of "waters of the U.S." and indicated the Corps had expansively over 

broadened its interpretation and exceeded regulatory authority. (p. 2-3)

Agency Response: The remand order of the Sixth Circuit is outside the scope of 

this rulemaking. The rule is narrower in scope than existing regulations. Technical 

Support Document, I.B. The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C.

10.28 Given the Rapanos Court's clear opinion interpreting "waters of the U.S.," the expansive 

scope of the EPA and Corps' self-regulatory authority under the proposed rule is quite 

disconcerting especially when you review the rule's "discussion of major conclusions" 

which sets the tone for its expansive implementation rationale. Throughout the proposed 

rule, the EPA and Corps rely on issues raised by the dissenting opinion in Rapanos which 

the Court showed to be "short on analysis of the statutory text and structure." The 

Supreme Court clarified "it was not willing to broaden tile definition of "waters of tile 

U.S." The dissenting opinion and self-regulating proposed rule would hold that "the 

waters of the U.S. include any wetlands "adjacent" (no matter how broadly defined" to 

"tributaries" (again, no matter how broadly defined) of traditional navigable waters." The 

dissent relied on the Riverside Bayview opinion and Congress' deliberate acquiescence in 

the Corps 1977 regulations. However, the Rapanos Court stated "each of these is 

demonstrably inadequate to support the apparently limitless scope that the dissent would 

permit tile Corps to give the Act." The Supreme Court determined Agency jurisdiction 

was broader in scope and expanded jurisdictional federal control beyond tile CWA §404 

permitting process. By this proposed rule, the EPA and the Corps exceed jurisdictional 

authority by attempting regulatory implementation expansion beyond the Supreme 

Court's limitations in Rapanos which will significantly increase the number of public 

infrastructure ditches under federal jurisdiction applicable to all CW A programs, not just 

permitting. If a project is determined to be jurisdictional, the rule will impact other 

regulatory programs, including §402--storm water management program and §401--water 

quality certification. For example, federal laws and environmental impact statements 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

28

would be triggered such as the National Environmental Policy Act and impacts under the 

Endangered Species Act. Other impacts pertaining to CWA programs under §303 Water 

Quality Standards, the National Pollutant Discharge Elimination System, total maximum 

daily load and other water quality standards programs will be realized. (State water 

quality certification or Spill Prevention, Control and Countermeasure programs have not 

been analyzed.) Such expansive regulatory implementation was not Congress' intent 

under statutory language or established Supreme Court precedent. Citing Riverside 

Bayview, the Rapanos Court clearly noted the dissent's acceptance of the Corps' inclusion 

of dry beds as tributaries was implausible as was acceptance of the Corps' definition of 

"adjacent" which extended beyond reason to include the 100 year flood plain of covered 

waters. The Rapanos Court further noted the dissenting opinion with its "exclusive focus 

on ecological factors, combined with its total deference to the Corps' ecological 

judgments, would permit the Corps to regulate the entire country as 'waters' of the U.S." 

Ultimately, the Rapanos Court was clear tile Corps exceeded their authority and from its 

opinion was not going to broaden the definition of "waters of tile U.S. Specifically, the 

Court quoting SWANCC, stated "we are loath to replace the plain text and original 

understanding of a statute with an amended agency interpretation." The Rapanos Court 

admonished the dissenting opinion and limited the Corps' authority (the same authority 

the Corps is attempting to broaden by this proposed rule) by clearly stating: 

"'[W]aters of the U.S.' is in some respects ambiguous. The scope of that 

ambiguity, however, does not conceivably extend to whether storm drains and dry 

ditches are 'waters,' and hence does not support the Corps' interpretation. And as 

or advancing 'the purpose of the Act': we have often criticized that last resort of 

extravagant interpretation, noting that no law pursues its purpose at all costs, and 

that the textural limitations upon a law's scope are no less a part of its 'purpose' 

than its substantive authorizations." 

The dissent noted "whether the benefits of particular conservation measures outweigh 

their costs is a classic question of public policy that should not be answered by appointed 

judges." In the only point of agreement with the dissent, the Rapanos Court went on to 

state "neither...should it be answered by appointed officers of the Corps of Engineers in 

contradiction of congressional direction." The Court's opinion is quite clear about 

regulatory agencies exceeding statutory authority. The EPA and Corps missed the entire 

point of the Rapanos Court's interpretation given the proposed rule's extensive reliance 

on the dissenting and concurring opinions. Specifically, the Court found the dissenting 

opinion "failed to provide overwhelming evidence that Congress considered and failed to 

act upon the 'precise issue' -- what constitutes an 'adjacent' wetland covered by the Act." 

The proposed rule also attempts to expand regulatory implementation by citing Justice 

Kennedy's concurring opinion which the Rapanos Court considered a misreading of 

SWANCC's "significant nexus" and in "utter isolation of the Act." The EPA and the 

Corps' case by case determination of "significant nexus" was clarified by the Rapanos

Court, quoting the Riverside Bayview Court, who "explicitly rejected such case by case 

determinations of ecological significance for the jurisdictional question whether a 

wetland is covered, holding instead that all physically connected wetlands are 

covered...Likewise, that test cannot be derived from SWANCC's characterization of 

Riverside Bayview, which emphasized the wetlands which possessed a 'significant nexus' 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

29

in the earlier case 'actually abutted on a navigable waterway and specifically rejected the 

argument that physically unconnected ponds could be included based on their ecological 

connection to covered waters .... "Wetlands are waters of the U.S if they bear the 

'significant nexus' of physical connection, which makes them as a practical matter 

indistinguishable from waters of the U.S." 

Our government consists of three (3) separate and distinct branches-Executive, 

Legislative and Judicial. The purpose of this governmental process creates a checks and 

balance system of oversight protection. In this particular case, regulatory agencies are 

performing both legislative and judicial interpretation functions. Unilaterally extending 

an agency's regulatory powers to legislative and judicial authority is quite disturbing. 

This is especially troubling given the fact the Supreme Court in two (2) cases raised 

questions about which waters fall under federal jurisdiction. In SWANCC, the Corps used 

the "Migratory Bird Rule" (wherever a migratory bird could land) to claim federal 

jurisdiction over an isolated wetland. The Court ruled the Corps exceeded their authority 

and infringed on states' water and land rights. In Rapanos the Corps was challenged over 

their intent to regulate isolated wetlands under the CWA §404 permit program. The Court 

ruled tile Corps exceeded their authority to regulate these isolated wetlands. The plurality 

opinion stated that only waters with a relatively permanent flow should be federally 

regulated. Until the Legislature or the Supreme Court clearly defines waters under federal 

jurisdiction, the matter is not within regulatory agency expansion. In both cases, the 

Court determined the regulatory agency exceeded its authority. (p. 7-8)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C.

10.29 Based on the Supreme Court's interpretation and reasons set forth in its analysis, the EPA 

and Corps should withdraw their draft guidance and proposed definitional expansion of 

regulatory implementation. Furthermore, given the recent passing of proposed legislation 

HR 5078-Waters of the United States Regulatory Overreach Protection Act of 2014 by 

the House of Representatives on September 9, 2014, which mandates the withdrawal of 

the proposed rule, the EPA and Corps, should voluntarily withdraw their joint proposed 

rule and proceed with the directives of the legislation. (p. 9)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. The agencies comply with enacted laws.

White Pine County Board of County Commissioners, White Pine County, Nevada et al. (Doc. 

#6936.1)

10.30 Highlighted portions of National Association of Counties Policy Brief should be 

included. (p. 3)

Agency Response: The commenter did not include a highlighted version of the 

National Association of Counties Policy Brief and therefore did not provide specific 

issues for the agency to consider in the rulemaking. Comments submitted by the 

National Association of Counties are responded to in the Response to Comments 

Document.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

30

Murray County Board of Commissioners (Doc. #7528.1)

10.31 The newly proposed rule offers new language and terms that depart from the 

nomenclature used in the Clean Water Act, historical regulations, and existing case-law 

precedence. The proposed rule therefore is challenging to synthesize with existing case 

law. (p. 2)

Agency Response: The rule does include new terms and definitions; they are 

consistent with the statute and the caselaw. Technical Support Document, I.A and 

C.

10.32 We oppose the replacement of "adjacent wetlands" with "adjacent waters" and believe 

that this proposal is not legally supported by the Clean Water Act and its case law. As 

proposed, this section of the rule represents the largest expansion of jurisdiction by the 

agencies over regulated waters. 

In Riverside Bayview Homes, the Supreme Court explained that Congress's concerns over 

restoring the integrity of navigable waters could reasonably conclude that "regulation of 

at least some discharges into wetlands" adjacent to navigable waters is permitted by the 

Clean Water Act. See US v. Riverside Bayview Homes, Inc., 474 U.S. 121 , 137 (1985). 

In SWANCC, the Court rejected extension of jurisdiction to wetlands not adjacent to 

navigable waters, stating, "It was the significant nexus between wetlands and 'navigable 

waters' that informed our reading of the [Act] in Riverside Bayview Homes." Solid Waste 

Agency of N. Cook Cnty. v. US Army Corps of Eng'rs, 531 U.S. 159, 167 (2001). In 

Rapanos, Justice Kennedy recognized that the limit of the agencies' powers over adjacent 

wetlands is set by a determination of the wetlands significant nexus to navigable water.

Rapanos v. U.S, 547 U.S. 715, 759 (2006). (p. 6)

Agency Response: The rule is narrower in scope than the existing regulation, and 

the rule is consistent with the statute and Supreme Court decisions. Technical 

Support Document, I.A., B., and C

Southeast Texas Groundwater Conservation District (Doc. #8142)

10.33 It is the belief of the Board that the United States Congress, not individual federal 

agencies, should make substantive changes in the laws of our nation. Any such changes 

in jurisdiction of the federal government should only result from Congressional action. 

(p. 1)

Agency Response: This rule is promulgated pursuant to Section 501 of the CWA. .

La Plata Water Conservancy District (Doc. #8318)

10.34 Accordingly, the LPWCD respectfully requests that the Agencies withdraw the proposed 

Rule and draft a new rule that (1) lawfully adheres to the plurality opinion of the Supreme 

Court in Rapanos and asserts jurisdiction on much narrower, more predictable grounds. 

(p. 2)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C. The rule demarcates the boundaries of CWA jurisdiction and 

provides for increased clarity and certainty. Preamble, II and IV. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

31

Southeast Texas Groundwater Conservation District (Doc. #8419.1)

10.35 Additionally, it is the belief of the Board that the United States Congress, not individual 

federal agencies, should make substantive changes in the laws of our nation. Any such 

changes in jurisdiction of the federal government should only result from Congressional 

action. (p. 1)

Agency Response: Agency Response: This rule is promulgated pursuant to 

Section 501 of the CWA.

Beaver County Commission (Doc. #9667)

10.36 ...the CWA directs the Environmental Protection Agency, the Army Corps of Engineers 

and other federal agencies to restore and maintain the chemical, physical, and biological 

integrity of the Nation's waters, other federal laws require federal agencies to disclose 

information related to the effects of their actions on the American public. We feel that the 

Agencies do not meet this requirement with the proposed rule and further, that the 

Agencies have engaged themselves in an effort to sway the public into supporting a new 

definition of the WOUS that the Agencies have determined is necessary but is 

independent of what is intended or presented in the CWA. This effort to gain support for 

an unnecessary new definition of the WOUS is carried out despite a recent Supreme 

Court decision that clearly defines the WOUS. (p. 2)

Agency Response: The agencies promulgated the rule consistent with all 

requirements. Preamble, VI. The rule is consistent with the statute and the 

caselaw. Technical Support Document, I.A and C.

10.37 The title of the proposed rule clearly states that the subject matter is the definition of a 

term, "Waters of the United States". The purpose of such a definition is declared to be to 

define the scope of waters that are protected under the CWA. However, the most 

significant and the most looming gorilla in the room associated with the Agencies' 

proposed regulatory definition is that there is no valid or justifiable need or purpose in 

redefining "waters of the United States", and that the actual purpose of the proposed rule 

is not to create a definition but to mask a tremendous expansion of the scope of CWA 

protected waters. 

The task of establishing the parameters of the scope of responsibility for the Agencies 

that will enable them to carry out their missions28 cannot be accomplished by proposing 

to redefine a term that already has a well-understood meaning in the English language. 

The Agencies, in couching the proposed rule as a request for unnecessary and 

inappropriate redefinitions of that and multiple additional terms, beg the question of 

actual intent for doing so. 

 

28 The EPA mission is to protect human health and the environment. http://www2.epa.gov/aboutepa. The mission of 

ACE is to "Deliver vital public and military engineering services; partnering in peace and war to strengthen our 

Nation's security, energize the economy and reduce risks from disasters." 

http://www.usace.army.mil/About/MissionandVision.aspx Summary of the Clean Water Act 33 U.S.C. §1251 et seq. 

(1972) 

The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of 

the United States and regulating quality standards for surface waters. http://www2.epa.gov/lawsregulations/summary-clean-water-act. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

32

The Agencies have stated in the Federal Registry that there is a need for adopting a 

formal statement of the meaning or significance of the phrase "waters of the United 

States". The Agencies stated that the need for this proposed rule was because the scope of 

CWA protection for streams and wetlands became confusing and complex following 

Supreme Court decisions in 2001 and 2006. 

A regulatory definition, ideally, would be consistently and systematically used by the 

Agencies when interpreting and implementing the Clean Water Act (CWA). The 

Agencies' proposal that the definition of "waters of the United States" be defined masks 

the fact that no such new definition is needed or even wanted by the Agencies. In fact, the 

Agencies would be delighted for the public to accept "waters of the United States" at face 

value.

This approach is a "bait and switch" process based on confusion caused by self-referential 

internal definitions within the proposed rule, making any real definition of any term 

nearly impossible. The proposed rule is presented with an ultimate objective of 

substantially increasing the scope of waters protected by the CWA (the switch) as a 

consequence of getting the public to agree to using the term "waters of the United States" 

at face value meaning. 

The bait is the pretense that a real rule change is being proposed to meet legal 

requirements for public notice and mandated public hearings (the bait), while bypassing 

not only the objective of public notice and public discussion on the actual rules, but 

avoiding the scrutiny of the legislative and judicial eyes (enabling the switch). 

Any ordinary speaker of the English language understands "waters of the United States" 

to mean, in plain writing and common use, "all waters located within the territorial 

boundaries of the United States". None of the words are hard to comprehend, and the use 

of this type of phraseology is common to native speakers of the English language (e.g., 

"riders of the purple sage", "ranchers of the western states", "farmers of the Midwest", 

"speakers of the English language"). It is a non-specific term that does not exclude any 

specific kinds of water to be found within the United States (or, e.g., riders to be found 

riding the purple sage, etc). 

No matter what definition could come about from the proposed rule, "waters of the 

United States" means all waters, including waters over which the Agencies have not 

previously had jurisdictional authority, e.g. waters of the States and private lands. This is 

not the intent of the CWA, although it apparently is the intent of the Agencies. 

In the English language when a word or term must be qualified with a modifier it is an 

indicator that the word or term is too general for the intended meaning. Thus the reason 

for the many modifiers for "waters of the United States" in the CWA, is because the 

CWA was not intended to apply to every drop of water located within the territorial 

boundaries of the United States. Modifying words have been used to provide parameters 

for implementation of protection of water quality since the Water Pollution Control Act 

of 1948. (p. 4-5)

Agency Response: The Supreme Court has stated that the term “waters of the

United States” is ambiguous in some respects. The agencies have promulgated a 

rule consistent with the notice and comment requirements of the Administrative 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

33

Procedure Act. The rule is also consistent with the statute and caselaw. Technical 

Support Document, I. A and C.

10.38 There is no doubt that with the plurality decision in the SWANCC and Rapanos cases the 

Supreme Court has already provided a clear definition of "waters of the United States". 

(See summary of the Supreme Court's decision in the attached "Syllabus of Rapanos et ux 

et al. v. United States"

29 ) 

Interpreting the law and providing a clear meaning to the intent of laws when there is 

doubt or a dispute is the primary role of the Supreme Court. The Supreme Court has done 

its job concerning the definition of "waters of the United States" and "jurisdictional 

waters" under the CWA. We find that the Agencies have been and are continuing to 

struggle with "mission creep", i.e. self-determined expansion of their mission beyond 

their statutory authority, as demonstrated by their unwillingness to accept the (Rapanos) 

Supreme Court decision and instead formulating this proposed rule. Unwilling to accept 

the Supreme Court definitions, the Agencies are attempting to implement their own 

definition of the "waters of the United States", which has led to much confusion and 

uncertainty for the American public. (p. 6)

Agency Response: The Supreme Court has stated that the term “waters of the 

United States” is ambiguous in some respects. The agencies have promulgated a 

rule consistent with the notice and comment requirements of the Administrative 

Procedure Act. The rule is also consistent with the statute and caselaw. Technical 

Support Document, I. A and C.

10.39 We finds it is very disheartening to have to deal with a proposed rule that is counter to the 

latest Supreme Court decision (Rapanos et ux et al. v. United States), which has clearly 

addressed this matter. By issuing the current proposed rule the Agencies appear to be 

attempting to override the Rapanos Supreme Court decision, which for the most part 

dismissed the notion that intertwined "water connectivity" and the presence of some kind 

of nebulous "significant nexus" to navigable waters give the Agencies jurisdiction for 

permitting a much expanded jurisdictional authority, including authority over a broader 

suite of land use activities. 

In the Rapanos et ux et al. v. United States decision, Justice Scalia's plurality opinion, 

section VII, clearly addresses and shows the errors with the Agencies notion that "water 

connectivity" and the presence of a "significant nexus" somehow come from and are part 

of the CWA. In this opinion, it is stated in the first paragraph of page 37: 

"One would think, after reading Justice Kennedy 's exegesis, that the crucial 

provision of the text of the CWA was a jurisdictional requirement of "significant 

nexus" between wetlands and navigable waters. In fact, however, that phrase 

appears nowhere in the Act, but is taken from SWANCC's cryptic characterization 

of the holding of Riverside Bayview." 

This statement alone should have been a red flag to the Agencies that the occurrence of 

"water connectivity" and the presence of a "significant nexus" was somehow a mandate 

 

29 http://www.law.cornell.edu/supct/htm1/04-1034.ZS.html. Accessed 06/24/14. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

34

for them to take it upon themselves to redefine what constitutes "waters of the United 

States" for CWA purposes. 

We find it alarming that the Agencies feel free to ignore the intent of Congress through 

bypassing the CWA and ignoring the findings of the Supreme Court. It is even more 

troubling that the Agencies would attempt to convince the public that they are somehow 

empowered to greatly expand their jurisdictional authorities, which would open the door 

for them to substantially increase their influence in land use activities across the entire 

nation. 

Withdraw the current proposed rule. If the Agencies feel the need to expand their 

jurisdictional authority and the scope of waters protected by the CWA, they must work 

within the bounds of already established federal and case law, specifically incorporating 

the "waters of the United States" definition presented by the plurality Supreme Court 

opinion in the Rapanos et ux et al. v. United States decision. Furthermore, the Agencies 

must work within established constitutional process, as well as with state and local 

elected officials and a broad cross section of the American public in developing changes 

to their mission and scope of authority. (p. 8)

Agency Response: The Supreme Court has stated that the term “waters of the 

United States” is ambiguous in some respects. The agencies have promulgated a 

rule consistent with the notice and comment requirements of the Administrative 

Procedure Act. The rule is also consistent with the statute and caselaw. Technical 

Support Document, I. A and C.

10.40 The extraordinary expansion of the Agencies' jurisdictional authority that would come 

about through this proposed rule, and the resulting vastly increased restrictions imposed 

on private waters through permitting would result in regulatory taking, a violation of the 

Fifth Amendment. The increased permitting available to the Agencies would result in 

citizens being required to obtain permits and pay the government for ordinary activities 

on private property. This amounts to a seizure of that property without compensation, i.e. 

a regulatory taking. Although the Supreme Court does not require government 

compensation where regulations substantially advance legitimate governmental interests, 

this is not true when the regulations prevent a property owner from making 

"economically viable use of his land." Agins v. City of Tiburon, 447 U.S. 255 (1980). 

In other words, the government should pay the market value of seized property rather 

than the property owner paying the government via a permit for the privilege of 

improving that property. 

This type of violation of the Fifth Amendment would not come about except that the 

Agencies propose to include non-navigable waters in their definition of the scope of their 

jurisdictional authority. The mission of the Agencies, in particular the EPA, is to protect 

and sustain water quality, not own the water or manage its use. (p. 12)

Agency Response: This rule does not constitute a taking of private property in 

violation of the Fifth Amendment. Technical Support Document, I.C.

Imperial County Board of Supervisors (Doc. #10259)

10.41 Ultimately, county governments are liable for maintaining the integrity of their ditches, 

even if federal permits are not approved by the federal Agencies in a timely manner. For 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

35

example, in Arreola v. Monterey (99 Cal. App. 4th 722), the court held that Monterey 

County (CA) was liable for not maintaining a levee that failed due to overgrowth of 

vegetation, even though the county argued that the Army Corps' permit process did not 

allow for timely approvals. (p. 2)

Agency Response: This state court case is outside the scope of this rulemaking.

Richland County, Montana Office of County Commissioners (Doc. #10551)

10.42 Constitution of the United States of America: Amendment X 

The powers not delegated to the United States by the Constitution, nor prohibited by 

it to the States, are reserved to the States respectively, or to the people. 

The Constitution of the State of Montana: Article IX Section 3. Water rights. 

1. All existing rights to the use of any waters for any useful or beneficial purpose are 

hereby recognized and confirmed. 

2. All surface, underground, flood and atmospheric waters within the boundaries of the 

state are the property of the state for the use of its people and are subject to 

appropriation for beneficial uses provided by law. 

We are asking the Administration to remand the rules until answers to the questions; as to 

under what authority are these rule being administered and what economic impact these 

rules will have on Richland County and the state of Montana. We are respectfully 

requesting the agencies (EPA) and (Corps) reopen the comment period after the questions 

have been answered. (p. 1-2)

Agency Response: This rule is promulgated pursuant to Section 501 of the CWA. 

The agencies have provided an economic assessment of the rule. Preamble, V, and 

economic assessment in the docket.

Sanpete County Commissioners (Doc. #11978)

10.43 Interpreting the law as providing a clear meaning to the intent of laws when there is doubt 

or a dispute is the primary role of the Supreme Court. The Supreme Court has done its 

job concerning the definition of "waters of the United States" and 'jurisdictional waters" 

under the CWA. An unwillingness to accept the (Rapanos) Supreme Court decision and 

formulating this proposed rule is demonstrated "mission creep." There can only be one 

reason for the EPA and Corp concerns with having to evaluate jurisdiction of waters on a 

case-specific basis which is to expand their scope of jurisdiction over the Nation's waters. 

Unfortunately for the EPA and the Corp, the Constitution does not grant power to any 

federal agency to establish their own authority or jurisdictional boundaries independent 

of Congress and the Supreme Court. (p. 1-2)

Agency Response: The rule is consistent with the statute and caselaw and is 

narrower in scope than the existing regulations. Technical Support Document, I.A, 

B, and C.

10.44 We believe that statements in the proposed rule are just additional examples of "mission 

creep." FR page 22189, column 1 state: The agencies emphasize that the categorical 

finding of jurisdiction for tributaries and adjacent waters was not based on the mere 

connection of a water body to downstream waters, but rather a determination that the 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

36

nexus, alone or waters in the region, is significant based on data, science, the CWA, and 

case law. In addition, the proposed rule suggests that "other waters" (those not fitting in 

any of the above categories) could be determined to be "waters of the United States" 

through a case-specific showing that, either alone or in combination with similarly 

situated " other waters" in the region, they have a " significant nexus" to a traditional 

navigable water, interstate water, or the territorial seas. The rule would also offer a 

definition of significant nexus and explain how similarly situated "other waters" in the 

region should be identified. By virtue of the Acts of 1866, 1870, and 1877 the federal 

government divested itself of its authority over all non-navigable water in the West, 

ceding that authority to the states. This action of Congress has only been changed in the 

past by the exemption of water from appropriation under state law. The Tenth 

Amendment to the United States Constitution prohibits the federal government from 

exercising any power not delegated to it by the states in the US Constitution. Thus, nonnavigable waters of the West are still outside of the jurisdictional authority of the EPA 

and the Corp. The proposed expansion of authority and jurisdiction over lands that may 

be or are covered with water for short periods of time cannot be justified. These are nonnavigable waters. The idea that because intertwined "water connectivity" and nebulous 

"significant nexus" to navigable waters might exist should not give the EPA and the Corp 

jurisdictional authority. The issuance of the proposed rule appears to override the 

Rapanos Supreme Court decision, which for the most part dismissed a notion of 

intertwined "water connectivity" and the presence of some kind of nebulous "significant 

nexus" to navigable waters gives the EPA and Corp jurisdiction for permitting a much 

expanded jurisdictional authority, including authority over a broader suite of land use 

activities. (p. 2)

Agency Response: The rule is consistent with the statute and caselaw and is 

narrower in scope than the existing regulations. Technical Support Document, I.A, 

B, and C.

10.45 Of greater concern is the possible violation of the Fifth Amendment "regulatory taking." 

The extraordinary expansion of the Agencies' jurisdictional authority that would come 

about through this proposed rule, and the resulting vastly increased restrictions imposed 

on private waters through permitting would result in regulatory taking, a violation of the 

Fifth Amendment. The increased permitting available to the Agencies would result in 

citizens being required to obtain permits and pay the government for ordinary activities 

on private property. This amounts to a seizure of that property without compensation, i.e. 

a regulatory taking. Although the Supreme Court does not require government 

compensation where regulations substantially advance legitimate governmental interests, 

this is not true when the regulations prevent a property owner from making economically 

viable use of his land." Agins v. City of Tiburon, 447 U.S. 255 (1980). In other words, the 

government should pay the market value of seized property rather than the property 

owner paying the government via a permit for the privilege of improving that property. 

This type of violation of the Fifth Amendment would not come about except that the 

Agencies propose to include non-navigable waters in their definition of the scope of their 

jurisdictional authority. The mission of the Agencies, in particular the EPA, is to protect 

and sustain water quality, not own the water or manage its use. (p. 3)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

37

Agency Response: This rule does not constitute a taking of private property in 

violation of the Fifth Amendment. Technical Support Document, I.C.

Washington County Board of County Commissioners (Doc. #12340)

10.46 Consequences of the proposed rules would allow the EPA and the Corps to utilize 

definitions with the CWA to regulate activities on dry land farm ground and county 

easements when those activities are not connected to interstate commerce. We believe 

this is an over reach of the intent of the 1972 law. (p. 1)

Agency Response: The definition of “waters of the United States” in the rule only 

includes waters. The rule is consistent with the statute. Technical Support 

Document, I.A.

Weld County, Colorado (Doc. #12343)

10.47 The Rapanos and Solid Waste decisions both dealt with the federal governments 

increasing assertion of jurisdiction under the Clean Water Act. In both cases, the majority 

of the Supreme Court held that the government was extending the scope of the Clean 

Water Act beyond the original intent. The Rapanos decision, written by Justice Scalia, 

and the Solid Waste decision written by Chief Justice Rehnquist, both sought to limit the 

reach of the Clean Water Act. With the proposed rule change, the agencies are attempting 

to clarify the supposed confusion created by these cases. However, it appears that the 

rulings from these two cases make clear that jurisdiction under the Clean Water Act is 

limited. (p. 4)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.

City of Palo Alto, California (Doc. #12714)

10.48 The proposed rule fails to provide the necessary clarity that gave impetus to this rule. We 

support a rulemaking process that interprets court decisions and ensures future progress 

in meeting the requirements of the Act. Unfortunately, the aggressive reach of this rule 

and its ambiguous provisions and terminology introduces uncertainty, requires more 

agency analysis and intervention, and creates increased potential for litigation. (p. 4) 

Agency Response: The rule provides increased certainty and is consistent with 

caselaw. Preamble, IV, and Technical Support Document, I.C.

Board of Commissioners, Carbon County, Utah (Doc. #12738)

10.49 We find that any determination without first seeking Congressional language for 

guidance would be an agency fiat. But Congressional intervention in fact that is the last 

thing this process seeks to do. (p. 3)

Agency Response: Agency Response: This rule is promulgated pursuant to 

Section 501 of the CWA. 

Mille Lacs County Board of Commissioners (Doc. #13198)

10.50 By using the phrase "Waters of the United States," Congress carefully balanced the 

interests of the federal government with state and private interests to protect and improve 

water quality. This phrase imposes a limit on federal jurisdiction that was established in 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

38

venerable federalism cases of the nineteenth century. Congress did not intend or 

empower the Environmental Protection Agency, or any other federal agency, to challenge 

the public trust responsibilities of the States as defined in Illinois Central Railroad v. 

Illinois, 146 U.S. 387 (1892) through administrative rules altering the definition of 

"waters of the United States." The public trust doctrine was developed to protect the 

rights of all people to the navigable in fact waterways. Congress was, as a matter of 

federalism, made responsible for maintaining the navigability of waterways under its 

Commerce Clause authority while the States were given the water management 

responsibilities. See Pollard's Lessee v. Hagan, 44 U.S. 212; 3 How. 212 (1845). In 

passing the Clean Water Act, Congress expanded the federalism balance to add the 

federal interest of ensuring clean water in interstate waterways while protecting the local 

and state authority over water management. 

The proposed rule is an expansion to the Congressional definition of "waters of the 

United States." It sets the term as to how the federal agencies will determine what other 

water bodies will be subject to the regulations of traditional "waters of the United States." 

The rule makes no mention as to the effect the expanded definition of"traditionally 

navigable waters" will have on the interpretation of Indian tribal authority over water 

under the Clean Water Act. Congress amended the Clean Water Act to allow qualified 

Indian tribes to be treated as states under specific circumstances. Indian reservations are 

considered territory of the United States not subject to state jurisdiction. See Village of 

Hobart v. Oneida Tribe of Wisconsin, 732 F.3d 837 (7th Cir. 2013). 

The rule is disturbingly similar to a recommendation made by Albert Bacon Fall in a 

report in 1922 that precipitated major federal litigation over the Colorado River. The 

States reacted to the Fall-Davis Report (S. Doc. 142, 67th Congo 2nd Sess.) by entering 

into the Colorado River Compact and agreeing to the legislation that became the Boulder 

Canyon Projects Act. However, the States contractual water rights were challenged 

twenty years later by the United States, on behalf of the Indian tribes, claiming huge 

preexisting reserved tribal rights and Mexican treaty rights. See Arizona v. California, 

373 U.S. 546 (1963). (p. 1-2)

Agency Response: The rule is consistent with the statute and Supreme Court 

CWA caselaw. Technical Support Document, I.A and C. This rule has no effect on 

the ability of tribes to seek TAS eligibility under the CWA. Currently, no tribes 

have been approved to administer the CWA Section 404 permitting program. 

Further, this is a definitional rule that clarifies the scope of the “waters of the 

United States”, consistent with the statue and Supreme Court case law.

Lafourche- Terrebonne Soil and Water Conservation District (Doc. #13582)

10.51 Legal scholars will argue that Congress is the only body that has and can set the scope of 

the Clean Water Act. Only Congress can expand the scope and intended purpose of the 

Clean Water Act, and it has chosen not to do so in both the 110th and 111th Congresses. 

The attempts of the EPA and COE through this proposed rule can only be interpreted as 

an attempt to circumvent the people of the United States and exert their agencies 

authority and control over their 'subjects'. (p. 2) 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

39

Agency Response: This rule is promulgated pursuant to Section 501 of the CWA 

and is consistent with the statute. Technical Support Document, I.A.

Parish of Jefferson (Doc. #14574.1)

10.52 The limits of federal regulation that burden states must first take place in the political 

process. Garcia v. San Antonio Metropolitan Transit Auth., 468 U.S. 521 (1985). That is 

the purpose of these comments, to persuade EPA and the Corps to place reasonable limits 

and constraints, including clarity and obtaining more input from state and local 

governments, in its proposed rules. Regulation of "waters of the U.S." too broadly and 

unfairly impedes local police powers. (p. 3)

Agency Response: The rule establishes reasonable limits and is consistent with the 

statute. Preamble, IV and Technical Support Document, I.A. The agencies sought 

input from States. Preamble, VI.E. and Federalism report in the administrative 

record.

Waters of the United States Coalition (Doc. #14589)

10.53 The Ninth Circuit Court of Appeals’ decision in Pronsolino v. Nastri, 291 F.3d 1123 

(2002) illustrates the issue. In that case, the EPA imposed TMDLs on a river that was 

polluted only by non-NPDES sources of pollution. Some property owners who owned 

land in the river’s watershed applied for an agricultural permit which was granted along 

with certain restrictions to comply with the EPA’s TMDL. The property owners sued the 

EPA, contending that EPA did not have the authority to impose TMDLs on rivers that 

were polluted only by non-NPDES sources of pollution. The both the trial court and the 

Ninth Circuit Court of Appeals sided with the EPA, holding that the CWA’s 303(d) 

listing and TMDLs requirements apply to all waters of the United States regardless of the 

source of impairment. 

Thus the idea that it doesn’t matter whether a water is designated waters of the United 

States if an activity does not require a Clean Water Act permit is incorrect. Other 

requirements apply and impose restrictions that are outside the scope of the Clean Water 

Act’s permitting process. For some water bodies that is entirely appropriate. For manmade ditches, aqueducts, treatment wetlands, Low Impact Development BMPs, terminal 

reservoirs, and flood control systems, the designation can be extremely problematic and 

will have a negative impact on public agency operations across the United States. (p. 18-

19)

Agency Response: The agencies considered impacts on implementing programs. 

Preamble, V and economic analysis in the administrative record.

10.54 The various iterations of NRDC v. County of LA are instructive. In that case, the Natural 

Resources Defense Council (“NRDC”) sued the County of Los Angeles Flood Control 

District alleging that the County’s NPDES permit required strict compliance with Water

Quality Standards. The Los Angeles Regional Water Quality Control Board, the agency 

issued the permit, had previously issued the County a letter stating that a violation of 

Water Quality Standards would not be considered a violation of the County’s NPDES 

permit. The District Court and the Ninth Circuit Court of Appeals disregarded the 

Regional Board’s assurance to the County and held that the permit’s language should be 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

40

read as if it were a contract. As a result, the County was held liable for the fact that the 

Los Angeles River routinely violates the designated Water Quality Standards.

The case demonstrates that although EPA may have the best intentions in the application 

of its Proposed Rule, unless the language is appropriately tailored to EPA’s stated goals it 

can be misconstrued. The current language is simply too broad and as described in 

greater detail below, must be revised (p. 19-20)

Agency Response: The rule makes no changes to the municipal separate storm 

sewer system program and regulations at issue in NRDC. See Preamble VI for 

discussion of exclusions and municipal separate storm sewer systems.

10.55 [I]n South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 

95 (2004), the Supreme Court held that movements of water within “the waters of the 

United States” were not discharges from a point source. The Court declined, however, on 

the basis of the record to determine whether the waters at issue were a single water body 

or separate waters of the United States, although there was some evidence indicating that 

the drainage canal and wetland at issue were in essence the same body of water. The 

Court remanded the case for further review of whether the two waters were distinct water 

bodies.

The Supreme Court subsequently reached the same conclusion in Los Angeles County 

Flood Control District v. NRDC, __U.S. __, 133 S.Ct. 710 (2013). There, the Court 

considered whether water movement within the channelized portions of the Los Angeles 

River could be considered a discharge from a point source. Citing Miccosukee, the Court 

unanimously held that water movement within the Los Angeles River would not 

constitute a discharge from a point source under the Clean Water Act. Specifically, the 

Court held that the channelized portions of the river were not point sources discharging 

into the non-channelized portions of the river.

The Court’s decisions in both Miccosukee and Los Angeles County Flood Control 

District recognized the fundamental difference between waters of the United States and a 

point source that discharges into waters of the United States. A feature cannot be both. If 

a manmade conveyance meets the definition of point source under the Act, the EPA and 

the Army Corps lack the discretion to classify it as waters of the United States based on 

an expansive definition of the term not found in the text of the Act itself. (p. 28-29)

Agency Response: Water transfers were at issue in those cases; the scope of water 

transfers is beyond the scope of this rule. The agencies disagree that the Supreme 

Court has held that a “water of the United States” cannot also be a “point source.” 

Technical Support Document at I.C.

10.56 Congress adopted this limitation because the states have traditionally regulated all waters 

within their jurisdiction, subject only to the federal government’s power to regulate 

navigable waters under its commerce powers. (United States v. Appalachian Elec. Power 

Co., 311 U.S. 377, 406 (1940) (describing federal power to regulate navigable waters); 

The Daniel Ball, 77 U.S. 557, 563 (1870) (same); California v. United States, 438 U.S. 

645, 662 (1978) (describing states’ traditional authority to regulate water); California 

Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 158, 163-164 (1935) 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

41

(same).) Many states, particularly in the arid west, are dependent on aquaducts, irrigation 

canals and other conduits to provide water to a thirsty populace:

 The federal Central Valley Project (CVP) in California, the nation’s largest 

federal reclamation project, consists of dams, canals and other facilities that 

transfer water from the rivers of northern California to the central and southern 

parts of the State, in order to serve agricultural, municipal, industrial and other 

uses. Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 280-283 (1958); United 

States v. Gerlach Live Stock Co., 339 U.S. 725, 728-736 (1950). 

 California’s State Water Project (SWP), the analogue of the federal CVP, 

similarly transfers water from northern California rivers for agricultural, 

municipal and other uses in other parts of the State. United States v. State Water 

Resources Control Board, 182 Cal.App.3d 82, 98-100 (1982).

 The Metropolitan Water District of southern California, which provides water 

supplies for the people of southern California, operates a dam on the Colorado 

River that transfers water through the district’s aqueduct to the district’s service 

area, where it is distributed to cities, towns and water districts for urban and other 

uses. Metropolitan Water District v. Marquardt, 59 Cal.2d 159, 171-173 (1963). 

 The Newlands Reclamation Project in Nevada—the first federal reclamation 

project built pursuant to authority of the Reclamation Act of 1902—transfers 

water from the Truckee River for irrigation uses in the project area located in 

central Nevada. Nevada v. United States, 463 U.S. 110, 115-116 (1983).

 The Central Arizona Project, which was built by the State of Arizona in order to 

provide Colorado River water for the benefit of the people of Arizona, transfers 

water from the Colorado River to the cities of Phoenix and Tucson, among others,

to meet their domestic and other needs. Maricopa-Stanfield Irrig. & Drainage 

Dist. v. United States, 158 F.3d 428, 430-431 (9th Cir. 1998); United States v. 

0.59 Acres of Land, 109 F.3d 1493, 1495 (9th Cir. 1997).

 The Colorado-Big Thompson Project, a federal reclamation project in Colorado, 

transfers water from the western slope of the Continental Divide through a tunnel 

to the eastern slope of the Rocky Mountains, in order to provide water supplies 

for people in Denver and other areas on the eastern slope. City of Colorado 

Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1074 (10th Cir. 2009).

These federal and state water projects have obtained their right to appropriate water 

pursuant to the water laws of the states where they are located. If the manmade conduits 

that they rely on to transport water are reclassified as waters of the United States, the 

projects may be forced to reduce or in some cases cease operations. This is because they 

may be required to meet Water Quality Standards and TMDLs internally, and because 

normal maintenance operations could require permits under section 404 of the Clean 

Water Act which would in turn trigger a review under the Endangered Species Act.

There is no question that certain portions of the above listed projects are already waters 

of the United States. However, extending that designation to all conduits and canals in the 

system would substantially increase the regulatory burden on these projects and upset the 

careful balance struck by Congress on this issue. (p. 31-33)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

42

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute, caselaw and the Constitution. Technical Support 

Document, I.A., B., and C. Questions about the jurisdictional status of specific 

waters, and any related permitting requirements, should be addressed to permitting 

authorities.

10.57 The Clean Water Act limits its intrusion into the states’ traditional authority to regulate 

water by providing that the NPDES program applies only to discharges from a “point 

source.” (Id. at §§ 1362(12) [defining “discharge of a pollutant”].) The states are 

responsible for regulating discharges from nonpoint sources, such as return flows from 

agricultural runoff. (Id. at §1362(14); Pronsolino v. Nastri, 291 F.3d 1123, 1126-1127 

(9th Cir. 2002); Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092, 1096-1097 

(9th Cir. 1998).) (p. 33)

Agency Response: The statute speaks for itself. The definition of “point source” is 

outside the scope of the rule.

10.58 The states’ traditional authority to regulate water is rooted in both constitutional and 

statutory principles. Under the equal footing doctrine—which is based on principles of 

federalism written into the Constitution, each state upon its admission to statehood, 

acquires sovereign rights and interests in navigable waters and underlying lands within its 

borders, subject to the federal government’s paramount authority to regulate and control 

navigation. (PPL Montana, LCC v. Montana, 132 S.Ct. 1215, 1226-1228 (2012); Oregon 

v. Corvallis Sand & Gravel Co., 429 U.S. 363, 372-374 (1977); Shively v. Bowlby, 152 

U.S. 1, 49-50 (1894); Pollard’s Lessee v. Hagan, 44 U.S. 212, 224-229 (1845); Martin v. 

Waddell, 41 U.S. 367, 410 (1842).) (p. 35)

Agency Response: The rule is consistent with the statute and the Constitution. 

Technical Support Document, I.A. and C.

10.59 [B]oth the Constitution and the Clean Water Act make clear that the states have primary 

authority to regulate water in our federal system. This basic principle of federalism 

informs the meaning of sections 101(g) and 510, and indicates that the Act cannot be 

construed to limit or hinder water rights and the movement of water for purposes of 

supply within the states. This basic premise is supported by both the Clean Water Act and 

the doctrine of constitutional avoidance. This doctrine holds that congressional statutes 

should be construed to avoid constitutional difficulties, unless such construction is plainly 

contrary to the congressional intent. (Edward J. DeBartolo Corp. v. Florida Gulf Coast 

Building & Const. Trades Council, 485 U.S. 568, 575 (1988); NLRB v. Catholic Bishop 

of Chicago, 440 U.S. 490, 500 (1979); Machinists v. Street, 367 U.S. 740, 749-750 

(1961); Crowell v. Benson, 285 U.S. 22, 62 (1932).)

In Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers 

(SWANCC), 531 U.S. 159, 172 (2001), the Supreme Court applied the constitutional 

avoidance doctrine in holding that the Corps does not have authority under the Act to 

regulate “isolated” waters, i.e., waters not connected to navigable waters, because such 

waters are traditionally regulated by the states. SWANCC, 531 U.S. at 172-173. The 

Court stated:
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

43

Where an administrative interpretation of a statue invokes the outer limits of 

Congress’ power, we expect a clear indication that Congress intended that result. 

This requirement stems from our prudential desire not to needlessly reach 

constitutional issues and our assumption that Congress does not casually authorize 

administrative agencies to interpret a statute to push the limit of congressional 

authority. This concern is heightened where the administrative interpretation 

alters the federal-state framework by permitting federal encroachment upon a 

traditional state power.30

The Court stated that the Corps’ interpretation of its authority “would result in a 

significant impingement of the States’ traditional and primary power over land and water 

use.” (SWANCC at 174.)

The Proposed Rule presents the same problem. Many water supply conduits are 

susceptible to being reclassified as waters of the United States under the Proposed Rule. 

Application of the Proposed Rule to these structures will infringe on the states’ ability to 

manage water supplies within their jurisdictions, and will thereby violate the Clean Water 

Act. (p. 35-37)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B., and C.

Republican River Water Conservation District (Doc. #15621)

10.60 When read together, Riverside, SWANCC and Rapanos require a much narrower 

interpretation of federal jurisdiction under the CWA than the one EPA and Corps now 

advance. This is especially true given that the agencies appear to give nearly unlimited 

breadth to “waters of the U.S.” in the proposed rule. “Where an administrative 

interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear 

indication that Congress intended that result.” SWANCC, 531 U.S. 159, 172. The only 

clear indication that exists is that Congress did not intend such a result. (p. 6)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B., and C.

10.61 In its current form, the all-encompassing definition of “waters of the U.S.” would 

establish a framework under which the EPA and Corps could wrest “primary 

responsibility” to regulate water pollution away from the States. This would disregard 

both the intent of Congress in enacting the CWA and the well-settled right of Colorado to 

spearhead efforts to protect and preserve waters within its borders. SWANCC, 531 U.S. 

159, 174 (allowing the Corps to “claim federal jurisdiction over ponds and mudflats 

falling within the ‘Migratory Bird Rule’ would result in a significant impingement of the 

States’ traditional and primary power over land and water use.”) (p. 6-7)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A. and C.

 

30 12 Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159, 172-73 

(2001) [internal citations omitted].
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

44

Meeteetse Conservation District (Doc. #16383)

10.62 In two separate cases the Supreme Court has ruled that there are in fact limits to the 

Clean Water Act (SWANCC v. U.S. Army Corps of Engineers, 2001 and Rapanos v. 

United States, 2006). With this proposed rule, the EPA and Army Corps are clearly trying 

to expand their jurisdictional boundaries in order to further regulate American citizens. 

We believe the EPA is overstepping the legal authority granted to them under the Clean 

Water Act and that they are blatantly ignoring these two U.S. Supreme Court decisions. 

(p.3)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A. and C.

Hot Springs County Commission (Doc. #16676)

10.63 The Hot Springs County Commission requests that any final rule refrain from a blanket 

presumption of federal jurisdiction and instead move toward a broad presumption of state 

jurisdiction. A "waters of the state" presumption will serve the dual purpose of avoiding 

the unintended consequences of perverse incentives for state and locally led water quality 

efforts, and shift the burden of proof back onto the EPA in cases when jurisdiction may 

not be clear, such as Hot Springs County's dual use diversions. Given that the EPA has 

twice failed to prove that expanded jurisdiction is warranted under the CWA, it is clear 

that the burden of proof should rest at the EPA whenever it seeks to expand its authority 

beyond that explicitly granted in the CWA, and constrained by the Supreme Court.31 

This is particularly important to Wyoming's counties that with limited budgets must 

comply with all state and federal permitting requirements and cannot afford to seek 

judicial redress for every disputed case of state vs. federal jurisdiction. (p. 4)

Agency Response: The federal government must demonstrate that a water is a 

"water of the United States" under the CWA and its implementing regulations. The 

rule, promulgated under authority of Section 501 of the CWA, is consistent with the 

statute, the caselaw, and the Constitution. Technical Support Document, I.A., B., 

and C.

Colusa County Board of Supervisors (Doc. #17002)

10.64 Ultimately, a county is liable for maintaining the integrity of their ephemeral flow 

ditches, even if federal permits and the attendant state water quality certifications are not 

approved by the federal and state agencies in a timely manner. For example, in 2002, in 

Arreola v. Monterey (99 Cal. App. 4th 722), the court held Monterey County (CA), 

among other local entities, liable for not maintaining a levee that failed due to overgrowth 

of vegetation, even though the county argued that the regulatory permit process did not 

allow for timely approvals. In addition, based on recent federal court rulings regarding 

Corps' actions and decisions, the expansion of the WOUS definition and the attendant 

potential for delays related to permit processing could increase the Corps' liability 

exposure as well. (p. 4)

 

31 See SWANCC v. the U.S. Army Corps ofEngineers, 531 U.S. 159, regarding the limitations on EPA's jurisdiction 

over isolated waters, and Rapanos v. the United States, 547 U.S. 715, regarding the limitations on EPA's jurisdiction 

over intermittent and ephemeral streams. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

45

Agency Response: This state court decision is outside the scope of this 

rulemaking.

Sienna Plantation Levee Improvement District (Doc. #17455)

10.65 The proposed rule ignores Congressional intent and Supreme Court rulings, and 

impermissibly expands Federal jurisdiction. Congress enacted the CWA as a means to 

exercise its traditional commerce power over navigation, and it is clear Congress 

intended to create a partnership between the Federal agencies and states to jointly protect 

the nation's water resources. The proposed rule reaches well beyond what Congress 

intended and expands the scope of the CWA to isolated, nonnavigable waters. 

Additionally, it is contrary to the Supreme Court ruling in Solid Waste Agency of 

Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). The SWANCC

Court noted that the word "navigable" in the CWA had been given limited effect, in the 

sense that the CWA could apply to wetlands and other waters that were not themselves 

navigable. But the Court went on to make clear that "limited effect" is not the same as 

"no effect whatever." The proposed rule seeks to strip the term navigable of having any 

meaningful effect. In Rapanos v. United States the Supreme Court identified limits to 

Federal authority under the CWA. Although the meaning and intent of Rapanos have 

been the subject of extensive debate, one aspect of the case is certain: it limits Federal 

jurisdiction. The Agencies are now ignoring those limits as well as Supreme Court 

precedent. The multiple opinions in the Rapanos case and the tests put forth by the 

Justices provide a rather complex framework for determining the scope of CWA 

jurisdiction. Even so, the decision-making process arising from that framework is 

defensible. Over time and through continued application the determinations made 

thereunder are becoming increasingly consistent and repeatable. Having already strayed 

far from the initial intent of Congress, the Agencies are now disregarding the clear 

outcome of Rapanos by having put forth a proposed rule that would essentially remove 

the remaining limits to establishing Federal jurisdiction under the authority of the CWA. 

The claim by the Agencies that the proposed rule will only slightly (approximately 3%) 

expand jurisdiction is not based on an actual field application, but rather an internal 

review of existing records and the information contained therein. It is to be expected that 

data in existing records would be what was relevant under the exiting rule, rather than 

that required for a determination under the proposed rule. Efforts to analyze application 

of the proposed rule have found that it will significantly expand jurisdiction, and in some 

areas the amount of jurisdictional waters (river miles and number of ponds) may more 

than double. This Federal overreach by the Agencies will usurp any meaningful 

authoritative role for the states and put in place an approach that can be used to exercise 

Federal control over any and all waters, including those that have been traditionally 

identified and regulated as "Waters of the State." (p. 3-4)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution and is narrower in scope than the existing regulations. Technical 

Support Document, I.A., B., and C. The scope and conclusions of the Economic 

Analysis are discussed at Section V of the Preamble, in the Economic Analysis, and 

the Economic Compendium response to comments.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

46

Fountain Green City Council (Doc. #18899)

10.66 Of greater concern is the possible violation of the Fifth Amendment "regulatory taking." 

The extraordinary expansion of the Agencies' jurisdictional authority that would come 

about through this proposed rule, and the resulting vastly increased restrictions imposed 

on private waters through permitting would result in regulatory taking, a violation of the 

Fifth Amendment. The increased permitting available to the Agencies would result in 

citizens being required to obtain permits and pay the government of ordinary activities on 

private property. This amounts to a seizure of that property without compensation, i.e. a 

regulatory taking. Although the Supreme Court does not require government 

compensation where regulations substantially advance legitimate governmental interests, 

this is not true when the regulations prevent a property owner from making 

"economically viable use of his land." Agins v. City of Tiburon, 447 U.S. 255 (1980). In 

other words, the government should pay the market value of seized property rather than 

the property owner paying the government via a permit for the privilege of improving 

that property. This type of violation of the Fifth Amendment would not come about 

except that the Agencies propose to include non-navigable waters in their definition of 

the scope of their jurisdictional authority. The mission of the Agencies, in particular the 

EPA, is to protect and sustain water quality, not own the water or manage its use. (p. 2)

Agency Response: This rule does not constitute a taking of private property in 

violation of the Fifth Amendment. Technical Support Document, I.C.

Hidalgo Soil and Water Conservation District, Lordsburg, New Mexico (Doc. #19450)

10.67 Concerns from Congress: The fact that several Federal Legislative Bills (including S. 

2496: “Protecting Water and Property Rights Act of 2014,” S. 2613: “Secret Science 

Reform Act of 2014,” H.R. 5071: “Agricultural Conservation Flexibility Act of 2014,” 

and H.R. 5078: “Waters of the U.S. Regulatory Overreach Protection Act of 2014”) have 

been filed that requests the withdrawal or revision of the proposed rule indicates there are 

major problems with this proposed rulemaking as presented. (p. 2)

Agency Response: The agencies disagree that there are major problems with the 

proposed rule. The final rule reflects the agencies’ consideration of public 

comment. The agencies have complied with enacted laws.

California State Association of Counties (Doc. #9692)

10.68 Ultimately, a county is liable for maintaining the integrity of their ephemeral flow 

ditches, even if federal permits and the attendant state water quality certifications are not 

approved by the federal and state agencies in a timely manner. For example, in 2002, in 

Arreola v Monterey, the court held Monterey County (CA), among other local entities, 

liable for not maintaining a levee that failed due to overgrowth of vegetation, even 

though the county argued that the regulatory permit process did not allow for timely 

approvals. In addition, based on recent federal court rulings regarding Corps’ actions and 

decisions, the expansion of the WOUS definition and the attendant potential for delays 

related to permit processing could increase the Corps’ liability exposure as well. (p. 2)

Agency Response: This state court decision is outside the scope of this 

rulemaking. The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B., and C.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

47

10.69 It is unclear if the current rule accurately reflects the narrower of the two holdings in 

Rapanos v United States, 547 U.S 715 (2006). A four-vote plurality of the court held that 

“Navigable waters” regulated under the CWA are limited to “only those relatively 

permanent, standing or continuously flowing bodies of water ‘forming geographic 

features,’” such as streams, oceans, river, and lakes. Wetlands with a “continuous surface 

connection” to such bodies of water, so that “there is no clear demarcation between,” are 

“adjacent to” such water bodies and also are covered. Justice Kennedy concurred in the 

judgment of the plurality, but on different grounds, relying on the “significant nexus” test 

and the significant ecological functions wetlands adjacent to tributaries can serve. 

The origins of this legal term of art suggests a common sense plain meaning of 

“significant” that may not be consistent with the science-driven nexus approach adopted 

by the agencies. Further, the agencies’ proposed rule’s definition of what is significant is 

anything that is not speculative or insubstantial. CSAC believes this is too low a bar and 

does not accurately reflect the meaning of significant.

The agencies seem to draw significant support from the Kennedy concurrence as opposed 

to the four vote plurality. Despite adopting the significant nexus test from the 

concurrence, the proposed rule does not accurately mirror the language. Justice Kennedy 

cited the significant nexus as “significantly affects the chemical, physical, and biological 

integrity...” whereas the proposed rule uses “or” in place of “and.” The rule should 

accurately reflect the language of Rapanos. (p. 4)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B., and C.

Florida Association of Counties (Doc. #10193)

10.70 The objective of the Clean Water Act is to "restore and maintain the chemical, physical 

and biological integrity of the Nations' waters. It is clear that ·water quality was the focus 

upon its passage in 1972, but exactly what the drafters intended by the term “Nations' 

waters" has been subject to judicial interpretation ever since. What is also clear is that the 

scope of the Nations' waters must be informed by the stated policy of Congress to 

recognize, preserve, and protect the primary responsibilities and rights of States to 

prevent, reduce, and eliminate pollution, to plan the development and use ... of land and 

water resources.' Although this important policy has been recognized and referenced by 

the Supreme Court. there is another congressional policy that should not be overlooked,

that "'to the maximum extent possible, the procedures utilized for implementing this Act

shall encourage the drastic minimization of paperwork and interagency decision 

procedures, and the best use of available manpower and funds, so as to prevent needless 

duplication and unnecessary delays at all levels of government. We believe that with 

myopic focus on the Act's goals, the Agencies have disregarded these equally important 

policies. 

The Agencies have interpreted the law and their jurisdiction broadly over the years, and 

courts have often been called upon to resolve resulting disputes. Three specific disputes 

decided by the Supreme Court have been referenced by the Agencies in support of the 

proposed rule: United States v. Riverside Bayview Homes. Inc. (Riverside Bayview);

Solid Waste Agency of Northern Cook County v. United Stale Army Corps of Engineers

(SWANCC); and Rapanos v. United States (Rapanos). A careful reading of these cases, 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

48

however, reveals that the proposed rule and its interpretations do not comport with their 

findings or with the CWA. (p. 5-6)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B., and C.

10.71 Notwithstanding this overwhelming condemnation, the Agencies find support for their 

broad interpretation in one concurring opinion, written by one justice. Justice Kennedy, 

in his concurrence, would allow federal regulators to “establish” a significant nexus if 

waters affect the chemical, physical or biological integrity of other covered waters. But as 

the plurality points out, a significant nexus (the term itself, a “cryptic characterization of 

the holding of Riverside Bayview") was simply one reason for holding physically 

connected wetlands jurisdictional. A case-by-case determination of ecological effect was 

not the test. To use this “gimmick" to substitute the purpose of the CW A for its text 

simply rewrites the statute. This “whatever affects waters ... is waters" result is not what 

Congress intended. (p. 8)

Agency Response: The rule is consistent with the statute and caselaw. Technical 

Support Document, I. A and C.

Nebraska Association of Resource Districts (Doc. #11855)

10.72 By relying on shallow subsurface groundwater connections to justify categorical 

jurisdiction over otherwise isolated intrastate bodies or conveyances of water, the 

Agencies are indirectly regulating groundwater, over which the States alone have 

jurisdiction. The Court has established limits on the scope of the Agencies’ authority 

under the Clean Water Act, holding in Rapanos: 

[C]lean water is not the only purpose of the [CWA]. So is the preservation of 

primary state responsibility for ordinary land-use decisions. ... It would have been 

an easy matter for Congress to give the Corps jurisdiction over all wetlands (or, 

for that matter, all dry lands) that ‘significantly affect the chemical, physical, and 

biological integrity of ‘waters of the United States.’ It did not do that[.]” 

Rapanos v. United States, 547 U.S. 715, 755-56, 126 S. Ct. 2208, 2234 (2006). The 

structure of the CWA indicates that Congress did not intend groundwater and navigable 

waters to be synonymous. As explained by the District Court in Washington Wilderness 

Coal. v. Hecla Min. Co.: 

If the terms were synonymous, it would not be necessary for Congress to make 

distinct references to groundwater and navigable water. ...The legislative history 

of the [CWA] also demonstrates that Congress did not intend that discharges to 

isolated ground water be subject to permit requirements. ... ‘Because the 

jurisdiction regarding groundwater is so complex and varied from State to State, 

the committee did not adopt this recommendation.’ 870 F. Supp. 983, 990 (E.D. 

Wash. 1994), citing S. Rep. No. 414, 92nd Cong., 1st Sess. 73 (1971), U.S. Code 

Cong. & Admin. News 1972, pp. 3668, 3739. (p. 7)

Agency Response: The rule explicitly excludes groundwater from the definition of 

“waters of the United States” and the agencies disagree that the rule indirectly 

regulates groundwater. The rule does not include a provision defining neighboring 

based on shallow subsurface flow. Preamble IV. While the agencies acknowledge 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

49

that shallow subsurface flow may be an important factor in evaluating a water on a 

case-specific significant nexus determination this does not mean that shallow 

subsurface connections are themselves “waters of the United States.” Preamble IV. 

The rule is consistent with the statute and caselaw. Technical Support Document, I. 

A and C.

Florida Rural Water Association (Doc. #14897)

10.73 The Supreme Court of the United States (SCOTUS) has recently and clearly interpreted 

the limits of federal authority in regulating water resources under the U.S. Constitution 

and the CWA. In the 2001 Supreme Court case, Solid Waste Agency of Northern Cook 

County (SWANCC) v. U.S. Army Corps of Engineers, the court ruled that the agencies 

have no jurisdiction over non-navigable, isolated, and intrastate waters. (p. 3)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C.

10.74 The EPA proposed rule on WOTUS must be withdrawn immediately as evidenced by the 

passing of U.S. House Bill H.R. 5078. The intent of this bill is to prohibit the EPA and 

ACOE from moving forward with its proposed WOTUS rule. Congress is responsible for 

making laws and EPA cannot side-step these laws. (p. 3)

Agency Response: This rule is promulgated pursuant to Section 501 of the CWA 

and is consistent with the statute. Technical Support Document, I.A. 

Fort Bend Flood Management Association (Doc. #15248)

10.75 The proposed rule ignores Congressional intent and Supreme Court rulings, and 

impermissibly expands federal jurisdiction. Congress enacted the CWA as a means to exercise its 

traditional commerce power over navigation, and it is clear congress intended to create a 

partnership between the federal agencies and states to jointly protect the nation’s water resources. 

the proposed rule reaches well beyond what congress intended and expands the scope of the 

CWA to isolated, non-navigable waters. Additionally, it is contrary to the Supreme Court 

ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 

(SWANCC). The SWANNC court noted that the word “navigable” in the CWA had been 

given limited effect, in the sense that the CWA could apply to wetlands and other waters 

that were not themselves navigable but the court went on to make clear that “limited 

effect” is not the same as “no effect whatever.” The proposed rule seeks to strip the term 

navigable of having any meaningful effect. in Rapanos v. United States the supreme court 

identified limits to federal authority under the CWA. Although the meaning and intent of 

Rapanos have been the subject of extensive debate, one aspect of the case is certain: it

limits federal jurisdiction. The agencies are now ignoring those limits as well as Supreme 

Court precedent. The multiple opinions in the Rapanos case and the tests put forth by the 

justices provide a rather complex framework for determining the scope of CWA 

jurisdiction. Even so, the decision-making process arising from that framework is 

defensible. Over time and through continued application the determinations. Over time 

and through continued application the determinations made thereunder are becoming 

increasingly consistent and repeatable. Having already strayed far from the initial intent 

of Congress, the Agencies are now disregarding the clear outcome of Rapanos by having 

put forth a proposed rule that would essentially remove the remaining limits to 

establishing Federal jurisdiction under the authority of the CWA. The claim by the 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

50

Agencies that the proposed rule will only slightly (approximately 3%) expand jurisdiction 

is not based on an actual field application, but rather an internal review of existing 

records and the information contained therein. It is to be expected that data in existing 

records would be what was relevant under the existing rule, rather than that required for a 

determination under the proposed rule. Efforts to analyze application of the proposed rule 

have found that it will significantly expand jurisdiction, and in some areas the amount of 

jurisdictional waters (river miles and number of ponds) may more than double. This 

Federal overreach by the Agencies will usurp any meaningful authoritative role for the 

states and put in place an approach that can be used to exercise Federal control over any 

and all waters, including those that have been traditionally identified and regulated as 

“Waters of the State.”(p. 5)

Agency Response: The rule is narrower in scope than the existing regulations. 

Technical Support Document, I.B. The rule is consistent with the Clean Water Act, 

the Supreme Court decisions, and the Constitution. Technical Support Document, 

I.A and I.C. 

Oklahoma Municipal League (Doc. #16526)

10.76 This rule invites a legal challenge. In the Rapanos case, 5 of 9 Justices disapproved the 

Corps' assertion that authority under the Clean Water Act was "essentially limitless" 

[characterized in J. Roberts' concurring opinion]. Despite that clear ruling, the proposed 

rule is written in such broad terms that it can be interpreted to subject nearly all waters to 

CWA jurisdiction. It retains the same "boundless view" of the scope of the Agencies' 

power that was explicitly rejected by a majority of the justices. Although there was not a 

majority opinion settling where the Agencies' jurisdiction begins, a rule that extends 

federal jurisdiction potentially to any water feature runs afoul of the majority view. The 

U.S. Supreme Court has twice curtailed the Agencies' attempts to expand their control 

under the Clean Water Act. (p. 2-3)

Agency Response: The rule is narrower in scope than the existing regulations. 

Technical Support Document, I.B. The rule is consistent with the Clean Water Act 

and the Supreme Court decisions. Technical Support Document, I.A and I.C. 

Minnesota Chamber of Commerce (Doc. #16473)

10.77 In Rapanos v. United States, 547 U.S. 715 (2006), Justice Scalia emphasized t hat ditches 

are expressly included in the CWA definition of "point source," which is a separate and 

distinct category from "navigable waters" (i.e. "waters of the United States"). The CWA 

prohibits unpermitted "discharges"-defined as the addition of pollutants from a "point 

source" into "navigable waters." Justice Scalia concluded that "[t]he definition of 

'discharge' would make little sense if the two categories were significantly overlapping . 

The text of the CWA thus demonstrates t hat ditches "are, by and large, not waters of the 

United States." Id. at 735-36. (p. 4)

Agency Response: The agencies disagree that the Supreme Court has held that a 

“water of the United States” cannot also be a “point source.” Technical Support 

Document at I.C. The rule is consistent with Supreme Court decisions and other 

case law. Technical Support Document, I.C. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

51

Louisiana Landowners Association (Doc. #16490)

10.78 The United States Constitution makes no express grant of power to regulate the nation's 

waters. While the Constitution vests Congress with the power to regulate interstate 

commerce, no such grant of authority has been given to the EPA or Corps. See U.S. 

Constitution, Article I, Section 8. The regulatory authority of the EPA and Corps to 

enforce the Act is derived entirely from the scope and intended purpose of that law as 

originally enacted by Congress. Only Congress has the constitutional authority to expand 

the application of the Act and it has chosen not to do so. See e.g., Hearing on Potential 

Impacts of Proposed Changes to the Clean Water Act Jurisdictional Rule Before 

Committee on Transportation and Infrastructure (Jun. 11, 2014) (statement by 

Chairman, Rep. Bill Shuster) (citing 110th and 111th Congresses' consideration, and 

rejection, similarly proposed jurisdictional expansions to the application of the Clean 

Water Act). 

The idea that the changes the EPA and Corps have proposed merely "clarify" the United 

States Supreme Court's decisions in Solid Waste Agency of Northern Cook County v. US. 

Army Corps. of Engineers, 531 U.S. 159 (2001) ("SWANCC") and Rapanos v. United 

States, 547 U.S. 715 (2006) is meritless. In SWANCC, the Court rejected the EPA's use of 

the "migratory bird rule" to assert jurisdiction over isolated bodies of water. 531 U.S. 159 

(2001). In Rapanos, the Court rejected federal regulatory efforts to prohibit a private 

landowner from filling sand in "isolated wetlands." 547 U.S. 715 (2006). Both decisions 

patently reject federal regulatory efforts to expand the reach of the Act and emphasize the 

requirement that regulatory federal agencies show that the body of water at issue meets 

the Act's definition of "navigable waterway." Thus, in its current form, the proposed 

Definition is directly contrary to United States Supreme Court precedent. (p. 2)

Agency Response: The rule is consistent with the Clean Water Act, the Supreme 

Court decisions, and the Constitution. Technical Support Document, I.A and I.C. 

Mountain States Legal Foundation (Doc. #15113)

10.79 The Proposed Rule drastically expands the scope of the Kennedy wetland test. The test is 

limited to wetlands with a significant nexus to waters "navigable in fact or that could 

reasonably be so made," Rapanos, 547 U.S. at 759 (Kennedy, J., concurring). Yet, the 

Proposed Rule extends the Kennedy wetland test to cover all waters (not just wetlands) 

and all waters adjacent to non-navigable interstate waters. 79 Fed. Reg. at 22,254. This 

expansion of the Kennedy wetland test is significant. It means that any tributary, 

intrastate lake, river, stream (including intermittent streams), mudflat, sandflat, wetland, 

slough, prairie pothole, wet meadow, playa lake, or natural pond that is connected to any 

water that is either navigable or interstate, is subject to federal regulation.32 See id at 

22,193. For example, a wet meadow or prairie pothole that crosses state lines, but in no 

way impacts interstate commerce, would be considered a jurisdictional "water" and any 

water feature with a significant nexus to that interstate wet meadow or prairie pothole 

would be subject to federal regulation. Id. This expansion of the Kennedy wetland test is 

 

32 The agencies state that this list of waters will be deleted from the existing regulatory provision, 79 Fed. Reg. at 

22,192; 33 C.F.R. § 328.3(a)(3), but these waters will still be subject to federal regulation under the "other waters" 

definition of "waters of the United States."
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

52

unwarranted by the facts of Rapanos and, as discussed in more detail below, stretches the 

constitutional limits of CWA jurisdiction past the breaking point.

The Proposed Rule modifies Justice Kennedy's opinion to arrive at a definition of 

"similarly situated waters" that could lead to grossly over-exaggerated "significance" 

determinations. As stated above, according to Justice Kennedy, the "requisite nexus" for 

CW A jurisdiction over wetlands not adjacent to navigable waters exists "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. 

The Proposed Rule makes a subtle but significant change to this formulation by 

substituting "wetlands" for "lands." 79 Fed. Reg. at 22,192 ("'if the wetlands, either alone 

or in combination with similarly situated [wet]lands in the region, significantly affect the 

chemical, physical, and biological integrity of other covered waters more readily 

understood as 'navigable."" (substitution in Proposed Rule) (quoting Rapanos, 547 U.S. 

at 780 (Kennedy, J., concurring))). This alteration allows the agencies to look at 

categories of waters in isolation, e.g., analyzing the combined impact of all the wetlands 

in a watershed, but not considering how the tributaries, land features, other waters, etc. 

contribute to the integrity of the covered waters.

The impact of this shift is illustrated by the 2011 Draft Guidance, which made the same 

alteration to Justice Kennedy's formulation: "For affirmative determinations especially, 

consideration of a subset of adjacent wetlands may be sufficient, since including 

additional adjacent wetlands in the analysis would only establish a more significant nexus 

to the traditional navigable water or interstate water." 2011 Draft Guidance at 18. Thus, 

in any given jurisdictional determination, the Corps can take a myopic view of the 

significance of the type of waters under review, ignoring other "lands in the region" that 

may mitigate the significance of the waters under review. Instead, jurisdictional 

determinations should view the entire watershed as an interrelated system as Justice 

Kennedy commands by his reference to other "lands in the region." 

The Proposed Rule assumes that if CWA jurisdiction exists for one intermittent tributary 

in a watershed, it will exist for all tributaries, because of "a tributary's ability to transport 

pollutants to downstream" categorically jurisdictional waters. 79 Fed. Reg. at 22,201-02. 

That this standard ignores the significance of the transported pollutants, flood waters, and 

other materials is bad enough, but to then bootstrap from one intermittent tributary a 

blanket jurisdictional determination for every other tributary in the watershed is a bridge 

too far. This is in stark contrast to Justice Kennedy's warning that, "[absent more specific 

regulations, however, 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." 

Rapanos, 547 U.S. at 782 (Kennedy, J., concurring).

As demonstrated above, the Proposed Rule pushes the Kennedy wetland test beyond the 

facts and holding of Rapanos. The expansion of federal authority over land use rights 

could be significant. The agencies should abandon their unlawful effort to drastically 

increase CWA jurisdiction. (p. 9-10)

Agency Response: The commenter's statement that the agencies take a myopic 

view of the type of waters to assess in combination and should consider "lands" in 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

53

the region is unclear. The agencies explain their "similarly situated" conclusions in 

the Preamble at Section III and IV, and the Technical Support Document at II and 

VI. The rule is consistent with the Supreme Court decisions. Technical Support 

Document, I.C. 

10.80 The Constitution delegates to Congress the power "[t]o regulate Commerce with foreign 

Nations and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, 

cl. 3. The Commerce Clause is the wellspring of Congressional authority that gives life to 

the CW A. SWANCC, 531 U.S. at 162. This is reflected in the fact that the predecessor 

statutes to the CW A were firmly grounded in the language of interstate, water-borne 

commerce. Rapanos, 547 U.S. at 723-24. The CWA did not abandon this statutory 

heritage, nor could it, because without a connection to interstate or foreign commerce, the 

CW A would be unconstitutional. See SWANCC, 531 U.S. at 173; see also Marbury v. 

Madison, 5 U.S. (1Cranch) 137, 176 (1803) ("The powers of the legislature are defined 

and limited; and that those limits may not be mistaken, or forgotten, the constitution is 

written."). 

In United States v. Lopez, the Supreme Court established "three broad categories of 

activity that Congress may regulate under its Commerce power." 514 U.S. 549, 558 

(1995); see United States v. Morrison, 529 U.S. 598, 609 (2000) (applying Lopez). 

Congress may regulate: (1) "the use of the channels of interstate commerce"; (2) "the 

instrumentalities of interstate commerce"; and (3) "those activities having a substantial 

relation to interstate commerce." Lopez, 514 U.S. at 558. Accordingly, in addition to the 

statutory limitations contained in the CW A, the agencies may not assert CWA 

jurisdiction over any waters that do not also meet at least one of the factors identified in 

Lopez. 

The Proposed Rule takes the view that the agencies have jurisdiction over non-navigable 

interstate waters, their tributaries, and any other waters with a significant nexus to nonnavigable interstate waters. 79 Fed. Reg. at 22, 188-89, 22,200. In particular, the 

Proposed Rule asserts jurisdiction over non-navigable interstate waters directly, not by 

way of any Rapanos-style connection to navigable waters. Id. at 22,198 (defining "waters 

of the United States" to include "all interstate waters," regardless of navigability). 

Accordingly, the agencies' jurisdiction over these waters must be premised on one of the 

Lopez categories.

"The first two categories of authority may be quickly disposed of." Lopez, 514 U.S. at 

559. Non-navigable waters are, by definition, non-commercial. 33 C.F.R. § 329.4 

("Navigable waters of the United States are those waters that are subject to the ebb and 

flow of the tide and/or are presently used, or have been used in the past, or may be 

susceptible for use to transport interstate or foreign commerce."). Accordingly, nonnavigable interstate waters are neither channels nor instrumentalities of interstate 

commerce. Thus, if the agencies can assert direct jurisdiction over non-navigable 

interstate waters, "it must be under the third category as a regulation of an activity that 

substantially affects interstate commerce." Lopez, 514 U.S. at 559. 

The Proposed Rule fails utterly to justify its assertion of CWA jurisdiction over 

nonnavigable waters pursuant to the Lopez framework. Rather, the agencies deduce that 

"the language of the CWA indicates that Congress intended the term 'navigable waters' to 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

54

include interstate waters without imposing a requirement that they be traditional 

navigable waters themselves or be connected to traditional navigable waters."33 79 Fed. 

Reg. at 22,200; see id. At 22,254 ("Congress clearly intended to subject interstate waters 

to CWA jurisdiction without imposing a requirement that they be water that is navigable 

for purposes of Federal regulation under the Commerce Clause themselves or be 

connected to water that is navigable for purposes of Federal regulation under the 

Commerce Clause."). However, the agencies fail to recognize "that limitations on the 

commerce power are inherent in the very language of the Commerce Clause." Lopez, 514 

U.S. at 553. Congress may enact legislation under the provinces of the Commerce 

Clause, but that does not ipso facto mean Congress did not exceed its power. See Lopez, 

514 U.S. at 557 n.2 (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., 

Inc., 452 U.S. 264, 311 (1981)) ("[S]imply because Congress may conclude that a 

particular activity substantially affects interstate commerce does not necessarily make it 

so[.]") (Rehnquist, J., concurring in judgment). It may be that a non-navigable interstate 

water has a surface hydrological connection or a significant chemical, physical, or 

biological nexus with "other covered waters more readily understood as 'navigable."' 

Rapanos, 547 U.S. at 780. Absent such a demonstrated connection, the agencies may not 

constitutionally assert jurisdiction over non-navigable interstate waters.34

In violation of the Kennedy wetland test, the Proposed Rule asserts jurisdiction on a casespecific basis over "other waters," including "wetlands, provided that those waters alone, 

or in combination with similarly situated waters, including wetlands, located in the same 

region, have a significant nexus to a traditional navigable water, interstate water or the 

territorial seas."35 79 Fed. Reg. at 22, 198. The agencies further rely on the concept of 

aggregation to expand jurisdiction to other waters. Id. at 22, 2 11. For instance, the 

 

33 The agencies indicate in Appendix B that "[i]nterstate waters are waters of the several States and, thus, the United 

States." 79 Fed. Reg. at 22,254. However, this does not affect analysis under the Commerce Clause, as to whether 

Congress has the power to regulate such interstate waters. The agencies also rely on Illinois v. City of Milwaukee, 

Wis., 406 U.S. 91 ( 1972) and City of Milwaukee v. Illinois and Michigan, 451 U.S. 304 (1981) in their position that 

"nothing in the Court's language or logic limits the reach of this conclusion to only navigable interstate waters." 79 

Fed. Reg. at 22,256; see id. at 22,259 ("Authority over interstate waters is squarely within the bounds of 

Congress['s] Commerce Clause powers."). But the Supreme Court did not discuss the Commerce Clause in Illinois 

and merely mentions the Commerce Clause in dicta in City of Milwaukee. See City of Milwaukee, 451 U.S. at 315 

n.8 ("Whether interstate in nature or not, if a dispute implicates "Commerce . . . among the several States" Congress 

is authorized to enact the substantive federal law governing the dispute."). Rather, the main concern was whether the 

Federal Water Pollution Act pre-empted the field of federal common law of nuisance. See Illinois, 406 U.S. at 107 

(stating that new federal law may in time pre-empt federal common law, but that time has not yet come); City of 

Milwaukee, 451 U.S. at 317 (finding that the Federal Water Pollution Act, after being amended in 1972, now 

occupies the field of federal common law of nuisance). There was absolutely no analysis or decision rendered on 

whether Congress could regulate non-navigable interstate waters under the Commerce Clause.

34 The fact that non-navigable interstate waters cross state lines is not enough. As demonstrated herein, the exercise 

of Commerce Clause authority requires some connection between commerce and the exercise of federal authority. 

See United States v. Clark, 435 F.3d 1100, 1115 (9th Cir. 2006) ("Like the statute regulating illicit drugs at issue in 

[Gonzales v. Raich, 125 S. Ct. 2195 (2005)], the activity regulated by the commercial sex prong of§ 2423(c) is 

'quintessentially economic,' 125 S.Ct. at 2211 , and thus falls within foreign trade and commerce.").

35 The agencies propose to define "significant nexus" to mean "a water, including wetlands, either alone or in 

combination with other similarly situated waters in the region ... , significantly affects the chemical, physical, or 

biological integrity of a water[.] For an effect to be significant, it must be more than speculative or insubstantial." 79 

Fed. Reg. at 22,269.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

55

agencies propose to use aggregation to reach other waters "where they are similarly 

situated in the region" of an interstate water and "significantly [affect] the chemical, 

physical, or biological integrity of' an interstate water. Id. This approach attempts to 

mirror the Supreme Court's decision in Wickard v. Filburn, 317 U.S. 111 (1942). 

In Wickard, the Supreme Court aggregated Filburn's production of wheat for home 

consumption with the production by others to determine that Congress had the power to 

regulate the wheat market under the Commerce Clause. Id. at 127-28 ("That [Filburn's] 

own contribution to the demand for wheat may be trivial by itself is not enough to 

remove him from the scope of federal regulation where, as here, his contribution, taken 

together with that of many others similarly situated, is far from trivial”. Yet, the Supreme 

Court in Lopez indicated there must be some economic activity: "Even Wickard . .. 

involved economic activity in a way that the possession of a gun in a school zone does 

not." Lopez, 514 U.S. at 560. Even more importantly, the economic activity, even when 

aggregated with other activities, must have a substantial effect. Wickard, 317 U.S. at 125. 

However, the agencies proposition is attenuated at best, especially since the agencies 

case-specific "other waters" jurisdictional test fails to factor in the economic nature of an 

"other water" that might, in combination with similarly situated waters (lands), 

substantially affect non-navigable interstate waters, which by definition are not 

commercial.36 As demonstrated above, non-navigable interstate waters cannot form the 

basis for CWA jurisdiction as part of a category. Thus, the agencies cannot 

constitutionally rely on proximity to non-navigable interstate waters to establish 

jurisdiction over "other waters." 

This bootstrap approach also runs afoul of Justice Kennedy's concurring opinion. Justice 

Kennedy concluded that a significant nexus could give rise to CWA jurisdiction, "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. First, the Kennedy wetland test 

is limited to wetlands, as demonstrated above; it does not contemplate "other waters." 

Second, the Kennedy wetland test requires a nexus between wetlands and "waters more 

readily understood as 'navigable.'" Id. at 780. Justice Kennedy explicitly excluded nonnavigable waters from those "covered waters" that could give rise to significant nexus 

jurisdiction. Accordingly, there is no basis for the agencies to assert jurisdiction over 

"other waters" based on the connection between "other waters" and non-navigable 

interstate waters. (p. 10-13)

Agency Response: The Supreme Court’s analysis in Illinois v. Milwaukee and City 

of Milwaukee makes clear that Congress has broad authority to create federal law to 

resolve interstate water pollution disputes. The rule is consistent with the Supreme 

Court decisions, and the Constitution. Technical Support Document, I.C and IV. 

Western Urban Water Coalition (Doc. #15178)

10.81 The Proposed Rule fails to adopt a narrow interpretation of Rapanos as is warranted 

where no opinion garners a majority of the Supreme Court, see Marks v. United States, 

 

36 At the very least, the agencies should replace "significantly affects" with "substantially affects," in the definition 

of "significant nexus" especially since "significant effect" means "more than...insubstantial." Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

56

430 U.S 188 (1977), and instead heads in the opposite direction, expanding the scope of 

federal oversight. Under Marks, when no opinion of the Court garners a majority, “the 

holding of the Court may be viewed as that position taken by those Members who 

concurred in the judgments on the narrowest grounds.” 430 U.S. at 193. The Proposed 

Rule allows the agencies to assert jurisdiction over more water bodies than are covered 

by the Rapanos plurality, more than are covered by the Kennedy concurrence in 

Rapanos, and more than are covered by the existing regulations defining waters of the 

United States. This can hardly be said to be a “narrow” interpretation. (p.7)

Agency Response: The rule is narrower in scope than the existing regulations. 

Technical Support Document, I.B. The rule is consistent with Supreme Court 

decisions. Technical Support Document, I.C. 

Western Urban Water Coalition (Doc. #15178.1)

10.82 The proposed rule states that “[A]s a result of the Supreme Court decisions in SWANCC

and Rapanos, the scope of regulatory jurisdiction of the CWA in this proposed rule is 

narrower than that under existing regulations.” However, the proposed rule does not 

appear to preserve the findings of SWANCC that addressed the nonjurisdictional status of 

isolated waters and narrowed the scope of CWA jurisdiction. The proposed rule does not 

define isolation and does not provide criteria and guidance for a nonjurisdictional 

determination based on isolation. The proposed rule relies instead on the significant 

nexus analysis, and only in the case of “other waters,” not tributaries. Therefore, under 

the proposed rule, there would no longer be an opportunity for a project proponent to 

provide information to the Corps to consider when determining the jurisdictional status of 

an ephemeral or intermittent drainage. Rapanos did not overturn or replace SWANCC. 

Rapanos and SWANCC address different jurisdictional issues and facts relative to the 

jurisdictional status of waters and wetlands. Guidance from the opinions works in 

tandem, as demonstrated by the Corps’ process for approved JDs (discussed above). 

Based on the opinions, a water can be determined nonjurisdictional because it is isolated, 

lacks a significant nexus, or both. The proposed rule needs to recognize the SWANCC and 

Rapanos opinions and preserve the ability to determine that a water or wetland is 

nonjurisdictional because it is isolated. (p. 9)

Agency Response: Consistent with Supreme Court decisions, the rule is based on 

the agencies’ determination of significant nexus. Preamble, III, and Technical 

Support Document, I.C. and II.

Automotive Recyclers Association (Doc. #15343)

10.83 Under the proposed rule much more permitting, monitoring and reporting of stormwater 

discharge data would be required. ARA is concerned that the agencies' previous attempts 

(under a separate rule) to require electronic reporting of permit information will be 

finalized and provide a pandora's box of easily accessible data to be mined for CWA 

citizen lawsuits - data that often is misinterpreted to justify the lawsuit filing. Although 

ARA supports public awareness of the NPDES program and of the information collected 

and reported, Association members do not believe that specific data should be shared 

unless it is subject to some type of review on how the information will be used. The 

increased volume of data resulting from this rule could clog the courts even more. (p. 7-

8)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

57

Agency Response: The impacts of NPDES E-Reporting rule are beyond the scope 

of this rulemaking. 

U.S. Chamber of Commerce, et al. (Doc. #14115)

10.84 The Agencies’ rationale for their proposal rests upon a selective and biased reading of the 

principal Supreme Court precedents addressing jurisdiction under the CWA. It also 

ignores the clearly articulated Congressional design of the CWA and more than 40 years 

of its successful federal/State implementation. The proposal abandons key jurisdictional 

elements established in the Riverside Bayview Homes decision; ignores the clear 

restrictions imposed by the Court in SWANCC, including those articulated by Justice 

Kennedy; and distorts Rapanos by giving no weight to the plurality opinion while 

attributing to Justice Kennedy certain broad principles that are neither supported by his 

concurring opinion nor allowed within the jurisdictional bounds he helped clarify in 

SWANCC. (p. 41)

Agency Response: The rule is consistent with the Clean Water Act and the 

Supreme Court decisions. Technical Support Document, I.A and I.C. 

10.85 From enactment of the landmark 1972 Clean Water Act, through its major amendments 

in 1977 and 1987, Congress clearly designed the Act to regulate the discharge of 

pollutants into waterways, not to regulate land uses. The CWA contains clear limitations 

on federal authority—and a corresponding preservation of traditional State and local 

authority—in the national effort to control water pollution while allowing beneficial land 

and water uses. CWA Section 101(b) provides that “[i]t is the policy of the Congress to 

recognize, preserve, and protect the primary responsibilities and rights of States to 

prevent, reduce, and eliminate pollution, [and to] plan the development and use . . . of 

land and water resources...”37 As a direct means of enforcing that policy, Congress also 

provided, in CWA Section 510, a rule for interpreting the Act when there is an issue as to 

the extent of federal authority within this sphere of State “rights and responsibilities”: 

“Except as expressly provided in this chapter, nothing in this chapter shall... (2) be 

construed as impairing or in any manner affecting any right or jurisdiction of the States

with respect to the waters...of such States.”38

Because the Agencies’ proposal to define the extent of federal authority under the CWA 

presents a question of federal regulatory jurisdiction versus traditional State authority, 

CWA Section 510 requires an inquiry as to whether the statute “expressly provide[s]” the 

authority that the Agencies claim. The U.S. Supreme Court has held repeatedly that this 

analytical approach is central to the task of interpreting the CWA when the limits of 

federal jurisdiction are at issue. (p. 41)

Agency Response: The rule is consistent with the Clean Water Act. Technical 

Support Document, I.A. 

10.86 In U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the Court held that the 

CWA could be interpreted to cover some waters beyond traditionally navigable waters –

 

37 33 U.S.C. §1251(b).

38 33 U.S.C. §1370.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

58

specifically, wetlands that actually abut on navigable waterways.39 While some of the 

Court’s language may suggest that it was considering a broader question of CWA 

jurisdiction over wetlands adjacent to “streams” and “other hydrographic features,” the 

Court was limited to the facts in the case, which pertained only to a wetland that 

“extended beyond the boundary of respondent’s property to Black Creek, a navigable 

waterway.”40

Writing for a unanimous Court, Justice White explained that, “[i]n determining the limits 

of its power to regulate ... under the Act” where the wetlands in question physically abut 

on a navigable waterway, “the Corps must necessarily choose some point at which water 

ends and land begins.”41 Recognizing the difficulty of that task, the Court found the 

Corps’ determination that “wetlands adjacent to navigable waters do as a general matter 

play a key role in protecting and enhancing water quality ...” sufficient to support its 

decision to include such wetlands within the Act’s jurisdiction.42 The Court concluded 

that “[w]e cannot say that the Corps’ conclusion that adjacent wetlands are inseparably 

bound up with ‘waters’ of the United States ... is unreasonable.”43 (p. 42)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. 

10.87 Fifteen years later, the Court decided Solid Waste Agency of Northern Cook County v. 

Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). At issue in SWANCC were 

several ponds in a former gravel pit that had developed a “natural character” and were 

used as habitat by migratory birds. The ponds were physically isolated in the sense that 

they were not adjacent to open water, but they shared a biological connection with other 

waters given their well-established use by migratory water birds such as heron, geese, 

ducks and kingfishers. The Corps had concluded that the water areas were WOTUS 

because the migratory birds cross state lines, bird hunting is a significant economic 

activity, and the wetland, although isolated, functioned in interstate commerce and made 

it a water of the U.S., not a water of Illinois.

After the case reached the U.S. Supreme Court, the SWANCC majority held that the 

CWA embodied Congress’ explicit purpose of recognizing and preserving the “primary 

responsibilities and rights” of States to deal with water pollution and land uses.44 The 

Court noted that Congress does not “casually authorize” agencies to interpret their 

statutory jurisdiction in a manner that would “push the limit of congressional authority,” 

especially where doing so “alters the federal-state framework by permitting federal 

encroachment upon a traditional state power.”45 In such circumstances, the Court 

“expect[s] a clear indication that Congress intended that result.”46

 

39 Id. at 135

40 Id. at 131

41 Id. at 132

42 Id. at 133.

43 Id. at 134.

44 531 U.S. 159, 166-67 (quoting 33 U.S.C. § 1251(b)).

45 Id. at 172-73.

46 Id. at 172.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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The Court then reiterated its holding in Riverside that federal jurisdiction extends to 

wetlands that are actually abutting navigable waters because protection of these adjacent 

(actually abutting) wetlands was consistent with Congressional intent to regulate 

wetlands “inseparably bound up with ‘waters of the United States.’”47 The Court found 

that this “inseparability” is what produces a “significant nexus” between the wetlands and 

navigable waters.48 Thus, nothing in Riverside or SWANCC suggests that the concept of a 

“significant nexus” justifies CWA jurisdiction over anything beyond wetlands that 

actually abut waters that qualify as traditional navigable waters in their own right. Justice 

Kennedy was a part of the majority making this key conclusion.

SWANCC held that the Corps’ assertion of federal jurisdiction over “ponds that are not 

adjacent to open water” is not permitted under the plain language of the CWA.49 Nothing 

in the legislative history of the Act persuaded the Court that Congress intended to cover 

more than navigable waters and their adjacent wetlands.50 And the Court declined to give 

Chevron51 deference to the Corps’ interpretation of its own jurisdiction over isolated 

waters used by migratory birds because it found that the statute was unambiguous. In 

addition, deference was not justified because the Court found that the Corps’ 

interpretation would infringe on States’ authority to regulate land and water use without 

any clear indication that Congress intended that result.52 (p. 42-44)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. 

10.88 The Court’s SWANCC and Riverside decisions continue to constrain the Agencies’ 

discretion in interpreting the Act:

 The CWA cannot be read to confer jurisdiction over physically isolated, wholly 

intrastate waters. In SWANCC the Court said: “[i]n order to rule for respondents 

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.”53 The Court did not merely disagree with the Corps’ 

argument that use by migratory birds could justify extending CWA jurisdiction to 

isolated waters. It concluded that the statutory text cannot justify regulation of 

intrastate ponds that are not adjacent to open water under any rationale;

 A water such as a pond is isolated (and therefore not jurisdictional) if it is not 

adjacent to open water. The Court understood adjacency as a limited concept, 

encompassing only those waters that actually abut on a navigable waterway.54 The 

 

47 Id. (quoting Riverside Bayview Homes, 474 U.S. at 134).

48 Id.

49 Id.

50 Id. at 170-71. While the Court noted it is possible to argue that the 1977 amendments adding Section 404(g) to the 

statute demonstrate a Congressional intent to cover “non-navigable tributaries and streams,” the Court did not 

address that question. Id. at 171.

51 Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). 531 U.S. at 172.

52 Id. at 172-74.

53 SWANCC at 168.

54 SWANCC at 167. Note that in neither Riverside nor SWANCC was the Court called upon to decide whether 

Corps’ regulatory definition of “adjacent” (i.e., “bordering, contiguous or neighboring”) was a reasonable 

interpretation of the Act. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

60

concept of adjacency must be so limited in order to give some import to 

Congress’ use of the term “navigable” while at the same time recognizing that 

Congress intended to regulate “at least some waters” that are not navigable;55and,

 The Riverside decision must be understood to mean that wetlands adjacent to (i.e., 

actually abutting) navigable waters, which are thus “inseparably bound up with” 

navigable waters, provide the “significant nexus” on which the decision in 

Riverside rested.56

These were the jurisdictional boundaries drawn by the Court, including Justice Kennedy, 

prior to Rapanos. Neither the plurality opinion nor Justice Kennedy’s opinion in Rapanos

repudiates any aspect of the SWANCC decision, including the SWANCC majority’s 

characterization of the rationale on which the outcome in Riverside rested. 57(p. 44)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. 

10.89 The [Rapanos] case involved four wetlands areas lying near ditches and man-made drains 

that eventually drained into traditional navigable waters. Developers had filled these 

wetlands without obtaining section 404 permits, assuming that the areas were not 

jurisdictional because they were many miles from navigable waters. Both the federal 

District Court and the Sixth Circuit Court of Appeals found the wetlands areas to be 

jurisdictional waters of the U.S. The Supreme Court reversed. Five Justices found that 

federal jurisdiction did not exist or was not proven. Justice Kennedy concurred in the 

judgment but did not join the majority.

Instead, Justice Kennedy concluded that WOTUS jurisdiction could be established if 

there was a “significant nexus” between the four wetlands in question and the navigable 

water many miles away. In the case at hand, however, the elements necessary for the 

nexus had not been shown. The four wetlands did not “significantly affect the chemical, 

physical, or biological integrity” of the navigable water miles away. The effect of the four 

wetlands on the navigable water was only “speculative and insubstantial.” The test 

suggested by Justice Kennedy, is whether a water has a “significant nexus” to a navigable 

water that is substantial and not speculative (i.e., can be proven).

The Agencies’ proposed WOTUS rule relies extensively on language from the Rapanos 

opinions, particularly Justice Kennedy’s. Unfortunately, the Agencies ignore limitations 

on principles expressed by the Justices. In particular, the Agencies’ reliance on Justice 

Kennedy’s concept of “significant nexus” in Rapanos seems to completely ignore the 

limits on the concept that he himself articulated. Rather than staying within the contours 

of Justice Kennedy’s “significant nexus” concept that they rely so heavily upon, the 

Agencies’ proposal expands the concept to a virtually infinite, zen-like construct where 

every drop of water is intimately connected to every other drop. (p. 44-45)

 

55 Id.

56 Id.

57 Id. Thus, conceptually there is little daylight between adjacency (meaning actually abutting) and the “significant 

nexus” that justifies extending CWA jurisdiction beyond navigable waters.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

61

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is not 

based on the “any connection theory” but is instead based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for specified waters and to provide that certain other waters may be jurisdictional 

where a case-specific determination has found a significant nexus. Preamble, III, 

and Technical Support Document, I.B, I.C. and II.

10.90 Justice Kennedy noted that both the plurality and the dissent would expand CWA 

jurisdiction beyond permissible limits. He wrote that the plurality’s coverage of “remote” 

wetlands with a surface connection to small streams would “permit application of the 

statute as far from traditional federal authority as are the waters it deems beyond the 

statute’s reach” (i.e., wetlands near to, but lacking a continuous surface connection with, 

navigable-in-fact waters).58 This, he said, was “inconsistent with the Act’s text, structure, 

and purpose.”59 As for the dissent, Justice Kennedy said the Act “does not extend so far” 

as to “permit federal regulation whenever wetlands lie alongside a ditch or drain, 

however remote and insubstantial,that eventually may flow into traditional navigable

waters.”60 Justice Kennedy’s outright rejection of these jurisdictional theories–mere 

hydrologic connections to, and mere proximity to, navigable waters or features that drain 

into them—were not accounted for by the Agencies in their proposal. (p. 45-46)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. 

California Building Industry Association, et al. (Doc. #14523)

10.91 Neither the federal Circuit Courts of Appeal nor the District Courts can agree on the 

appropriate test for deciding the scope of the Agencies’ CWA jurisdiction under 

Rapanos. Several tests have been articulated. The seminal case directing the means of 

interpreting the controlling precedents from a fractured Supreme Court in which no single 

opinion garners the support of a majority of justices is Marks v. United States, 330 U.S. 

188 (1977) which holds:

When a fragmented Court decides a case and no single rationale explaining the 

result enjoys the assent of five Justices, “the holding of the Court may be viewed 

as that position taken by those Members who concurred in the judgments on the 

narrowest grounds.” Id. at 193. 

However, given that the respective rationales in Rapanos are not linear or logical subsets 

leading to a readily apparent “narrowest grounds,” application of Marks by lower courts 

trying to interpret Rapanos has been of little or no assistance, some courts expressly 

refusing to apply it.

 

58 Rapanos at 776-77

59 Rapanos at 776.

60 Rapanos at 778-79
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

62

The Agencies have made their position plain, however. “The government position since 

Rapanos has been that a water is jurisdictional under the CWA when it meets either the 

plurality or Kennedy standard.”61

Although Rapanos has spawned multiple and diverse theories of establishing and limiting 

the Agenices’ jurisdiction under the CWA, one thing is unmistakable: that jurisdiction is 

not boundless. Five Justices of the Rapanos court insisted that exertion of jurisdiction 

beyond navigable waters as traditionally understood must be premised upon significant 

and demonstrable effects on navigable waters. Speculative or insubstantial effects are 

well outside the outer bound of jurisdiction. And any mere hydrologic connection is not 

enough to uphold a claim of jurisdiction. (p. 11)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. 

New Mexico Association of Commerce and Industry (Doc. #14638)

10.92 Not surprisingly, this flawed proposal exceeds EPA and the Corps' authority under the 

United States. This statutory term has been interpreted by the Supreme Court to Clean 

Water Act, which only authorizes EPA and the Corps to regulate the "waters of mean 

either "traditional navigable waters" or other bodies of water that have a "significant 

nexus" to such waters. To have a significant nexus, the-water body at issue must 

'significantly affect" the chemical, physical and biological integrity of -navigable waters 

in a manner that is more than speculative and insubstantial. (p. 1)

Agency Response: The rule is consistent with the Clean Water Act and the 

Supreme Court decisions. Technical Support Document, I.A and I.C. 

Federal Stormwater Association (Doc. #15161)

10.93 First, while the statute and the regulations have not changed, the agencies in the past have 

attempted to expand their jurisdiction through guidance and permit decisions. Twice, the 

Supreme Court has ruled that these attempts to expand jurisdiction exceed the agencies’ 

authority under the CWA. Broad assertions of jurisdiction based on factors such as use of 

water by migratory birds were never lawful and do not establish a baseline from which to 

compare the proposed rule. A fair reading of Supreme Court precedent does not support 

the proposed rule. FSWA believes the proposed rule as another attempt to circumvent 

Supreme Court decisions to expand federal authority. (p. 2)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. 

10.94 There is no question whether the Constitution or the CWA authorizes federal jurisdiction 

over “navigable waters and territorial seas.”62 However, the proposed rule has created 

uncertainty regarding what is considered “navigable.” The preamble suggests that 

 

61 Potential Indirect Economic Impacts and Benefits Associated with Guidance Clarifying the Scope of Clean Water 

Act Jurisdiction), (April 27, 2011) . U.S. Envtl. Prot. Agency 

http://water.epa.gov/lawsregs/guidance/wetlands/upload/cwa_guidance_impacts_benefits.pdf 

62 Territorial seas are navigable. 33 CFR § 328.4(a) (“The limit of jurisdiction in the territorial seas is measured from 

the baseline in a seaward direction a distance of three nautical miles.”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

63

commercial navigation can be demonstrated by an experimental canoe trip taken solely to 

demonstrate navigability. 79 Fed. Reg. at 22,253. While the agencies cite FPL Energy 

Marine Hydro L.L.C. v. FERC, 287 F.3d 1151 (D.C. Cir. 1992), to support this position, 

such insignificant and speculative evidence does not meet the test set forth by the 

Supreme Court, which requires a traditional navigable water to be a “highway of 

commerce.” The Daniel Ball, 77 U.S. 557 (1870). According to the Supreme Court, use 

as a highway is the “gist of the federal test.” Utah v. United States, 403 U.S. 9 (1971). An 

experimental canoe trip fails that test. Under the Commerce Clause, Congress also can 

regulate those activities that substantially affect interstate commerce. United States v. 

Lopez, 514 U.S. 549, 558-59 (1995). Again, a canoe trip fails that test. (p. 3)

Agency Response: The rule is consistent with caselaw and the Constitution. 

Technical Support Document, I.B and C and III. 

10.95 In contrast to the proposed rule, in a series of decisions starting with Riverside Bayview, 

474 U.S. 121 (1985), the Supreme Court interpretations of the Clean Water Act have 

analyzed the scope of federal jurisdiction based on impacts to the quality of navigable 

waters. In Riverside Bayview, the Court found that a wetland that directly abuts a water of 

the U.S. is a continuation of such water. See 474 U.S. at 134 (“the landward limit of 

Federal jurisdiction under Section 404 must include any adjacent wetlands that form the 

border of or are in reasonable proximity to other waters of the United States, as these 

wetlands are part of this aquatic system,” quoting 42 Fed. Reg. 37128 (1977). Thus, in 

situations where a wetland abuts a water of the U.S., Riverside Bayview stands for the 

proposition that the landward extent of that particular water of the U.S. includes the 

wetland. The Court simply held that: “We cannot say that the Corps' conclusion that 

adjacent wetlands are inseparably bound up with the ‘waters’ of the United States - based 

as it is on the Corps' and EPA's technical expertise - is unreasonable.” Id. at 134. So, in 

accordance with Riverside Bayview, adjacency determines the landward extent of open 

water (“where water ends and land begins”), and adjacent wetlands are included in the 

definition of jurisdictional waters to protect and maintain the quality of navigable waters. 

(p. 7-8)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. 

10.96 In the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 

(SWANCC), 531 U.S. 159 (2001), the Court declined to go beyond Riverside Bayview

and assert jurisdiction over waters or wetlands that were not “inseparably bound up with 

the ‘waters’ of the United States.” 531 U.S. at 167 (quoting Riverside Bayview). In its 

decision, the Supreme Court informed us that the term “navigable” cannot be read out of 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

64

the Act.63 The Court recognized that the gravel quarry in Cook County, Illinois, was a 

“far cry, indeed, from the ‘navigable waters’ and ‘waters of the United States’ to which 

the statute by its terms extends.” Id. at 173. The Court also overturned EPA’s “Migratory 

Bird Rule” that it had crafted to expand its CWA jurisdiction, finding that use of a water 

body by migratory birds alone is not a basis for jurisdiction under the Act.64 The rationale 

used to reach this conclusion severely called into question to legitimacy of federal 

jurisdiction over any isolated water, and since 2001 the Corps and EPA have not 

attempted to assert jurisdiction over isolated waters.65 (p. 8)

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. 

10.97 In Rapanos v. United States, the Court addressed a third category of jurisdictional waters: 

tributaries (and their adjacent wetlands). 547 U.S. 715 (2006). The plurality held that to 

be subject to the CWA, water must be relatively permanent surface water.66 The 

concurring opinion by Justice Kennedy held that to be subject to CWA jurisdiction, water 

must have a “significant nexus” to traditional navigable water.67 The dissenting justices 

would apply jurisdiction more broadly, based on “entwined” ecosystems. 547 U.S. at 

797. But all of the opinions recognized that the CWA’s focus is protecting water quality, 

not drainage features.

Despite the Court’s recognition that the CWA is a water quality protection statute, the 

proposed rule relies entirely on the opinion of Justice Kennedy, thus ignoring constraints 

imposed by the plurality opinion, and misapplies Justice Kennedy’s opinion to assert the 

very broad federal jurisdiction described above, without staying focused on water quality 

connections. Accordingly, the proposed rule is not consistent with Supreme Court case 

law. (p. 7)

 

63 “We thus decline respondents' invitation to take what they see as the next ineluctable step after Riverside Bayview 

Homes: holding that isolated ponds, some only seasonal, wholly located within two Illinois counties, fall under § 

404(a)'s definition of "navigable waters" because they serve as habitat for migratory birds. As counsel for 

respondents conceded at oral argument, such a ruling would assume that "the use of the word navigable in the statute 

... does not have any independent significance." Tr. of Oral Arg. 28. We cannot agree that Congress' separate 

definitional use of the phrase "waters of the United States" constitutes a basis for reading the term "navigable 

waters" out of the statute. We said in Riverside Bayview Homes that the word "navigable" in the statute was of 

"limited import," 474 U. S., at 133, and went on to hold that § 404(a) extended to nonnavigable wetlands adjacent to 

open waters. But it is one thing to give a word limited effect and quite another to give it no effect whatever. The 

term "navigable" has at least the import of showing us what Congress had in mind as its authority for enacting the 

CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so 

made. See e.g., United States v. Appalachian Elec. Power Co., 311 U. S. 377, 407-408 (1940).” SWANCC, at171-

172

64 See SWANCC, 531 U.S. at 173 (denying jurisdiction over water based on use by migratory birds based on the fact 

that the Clean Water Act regulates only navigable waters and declining to invoke the “outer limits of Congress’ 

power”); see also Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726, 729 (E.D. Va. 1988), aff’d, 885 F.2d 866 (4th 

Cir. 1989) (denying jurisdiction over water based on use by migratory birds because connection to interstate 

commerce is too speculative).

65 EPA, Potential Indirect Economic Impacts and Benefits Associated with Guidance Clarifying the Scope of Clean 

Water Act Jurisdiction) (April 27, 2011).

66 547 U.S. at 733

67 547 U.S. at 780.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

65

Agency Response: The rule is consistent with the Supreme Court decisions. 

Technical Support Document, I.C. 

Steel Manufacturers Association, et al. (Doc. #15416)

10.98 Not only is the proposed definition unnecessarily burdensome, it is an impermissible 

construction of the CWA. This attempt to stretch the bounds of CWA jurisdiction to 

include even discrete, purely intrastate waters has already been unquestionably rejected in 

two previous Supreme Court decisions. This latest attempt by EPA and the Army Corps 

merely repackages the same twice-rejected statutory construction arguments and in no 

way reflects the Supreme Court's admonition that EPA and the Army Corps constrain 

their jurisdiction to the recognized boundaries of the CWA. 

The definition fails to provide any additional clarity with respect to which waters are 

regulated as "waters of the United States," and complicates this analysis by proposing 

case-by-case "significant nexus" determinations. The "significant nexus" test itself has 

been interpreted in a number of ways, and in the proposed rule, EPA and the Army Corps 

have impermissibly elected to follow Justice Kennedy's interpretation in his Rapanos

dissent because it allows for broader regulation of waters, despite the fact that the 

plurality in Rapanos rejected his interpretation. 

The Supreme Court, in its two decisions, Rapanos and SWANCC, has previously 

addressed the proper scope of the CWA. EPA's effort to revise the definition of "waters 

of the United States" in a manner inconsistent with the holdings of these two cases 

introduces expansive new jurisdiction, is misguided, and constitutes an overreach of 

federal power. 

The proposed definition fails to address the issues raised by the Supreme Court, and, in 

fact, strides well past the jurisdictional boundaries EPA and the Army Corps were twice 

admonished to recognize. Stretching the definitions of terms like "tributary" and 

"adjacent waters" to include, for instance, "floodplains" and "riparian areas" potentially 

allows EPA and the Army Corps to connect nearly any waterbody to the traditional 

navigable interstate waters over which they have jurisdiction. In doing so, EPA and the 

Army Corps are plainly attempting to claw back jurisdiction over waters for which the 

Supreme Court in SWANCC already denied jurisdiction. So too would EPA and the Army 

Corps' characterization of "tributaries" as having a bed, bank, and high water mark 

integrate a number of non-permanent, seasonal, or rarely-wet land features. 

The Supreme Court has already rejected the sort of expansive definition of tributary and 

other contributory waters that EPA attempts in this proposed rule. Bodies of water that 

are intrastate and isolated are not considered "waters of the United States" per the Court's 

decision in SWANCC. Waters that are not relatively permanent, standing, or continuously 

flowing are excluded from CWA jurisdiction following the Court's decision in Rapanos. 

The Court has confirmed that "navigable waters" and "waters of the United States" are 

terms that should encompass a limited class of waters, and that the federal government 

should be restricted to waters of interstate interest so as to preserve the traditional right of 

states and localities over land and water use. EPA's and the Army Corps' proposed 

definition of "waters of the United States" fails to meet either of those elements. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

66

Our associations are very concerned about these repeated attempts at CWA overreach 

because a number of waterbodies and land features are frequently present on EAF steel 

mill properties, such as stormwater and cooling water retention ponds and wetlands. 

Often these water features have no surface connection to interstate and navigable 

waterbodies, and so they should properly be regulated by local and state authorities. 

EPA's and the Army Corps' proposed rule seeks to assert CWA jurisdiction for these 

waters, and would saddle landowners with additional, and potentially costly, permitting 

requirements—often with no additional environmental benefit as many of these types of 

waters are regulated by state and local entities. Further, because EPA and the Army 

Corps seek to link these waters to traditionally navigable waters through subsurface or 

intermittent hydrologic connections, landowners would be forced to spend vast amounts 

of time, money, and resources in determining the jurisdictional status of their property 

and defending against any improper efforts at federal enforcement. 

The Supreme Court was clear—the scope of CWA jurisdiction should properly be limited 

to those waterbodies that most directly affect the water quality of traditional navigable 

and interstate waters. This new definition of "waters of the United States" would lead to 

expansive federal power over land and bodies of water far removed from navigable and 

interstate waters. Consequently, it would also impinge upon the states' traditional power 

over land and water use. A great number of nonnavigable, isolated, intrastate waters that 

do not physically and proximately abut a navigable or interstate waterway would be 

brought under the jurisdiction of the CWA—an outcome which is completely misaligned 

with the intent of the statute and the holding in SWANCC. 

EPA's and the Army Corps' overreach is most conspicuously represented by their 

decision to use Justice Kennedy's minority concurring test for "substantial nexus" in the 

Rapanos opinion, instead of the more widely supported plurality opinion. EPA and the 

Army Corps sidestepped the plurality in order to avail themselves of a single Justice's 

view 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.'" Rapanos, 547 

U.S. at 780 (J. Kennedy, concurring).

In its notice, EPA and the Army Corps explain that "the agencies determined that it is 

reasonable and appropriate to apply the 'significant nexus' standard for CWA jurisdiction 

that Justice Kennedy's opinion applied to adjacent wetlands to other categories of 

waterbodies as well." 79 Fed. Reg. 22,192. The agencies, however, largely ignore that 

Justice Kennedy's singular view directly conflicts with the plurality. 

The plurality noted that Justice Kennedy's interpretation was not grounded in prior CWA 

decisions such as SWANCC. Rapanos, 547 U.S. at 753-54. In fact, in SWANCC the Court 

rejected the sort of case-by-case determinations proposed in this rule and required by 

Justice Kennedy in his interpretation of significant nexus, instead determining that all 

physically connected wetlands are covered as waters of the United States. See Rapanos, 

547 U.S. at 754 (citing Riverside Bayview, 474 U.S. at 135 n9). 

The "significant nexus" test in SWANCC required a physical connection for wetlands to 

be considered "waters of the United States." EPA's and the Army Corps' choice to use a 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

67

significant nexus test that favors the expansive outcome it desires, despite the fact that it 

was supported by only one Justice and rejected by the plurality of Justices authoring the 

Court's opinion, is indefensible. Further, by electing to use Justice Kennedy's test, EPA 

and the Army Corps have introduced even more ambiguity and confusion over the 

"significant nexus" test and the determination of CWA jurisdiction over "waters of the 

United States." (p. 4-7) 

The CWA allows any citizen to bring suit against alleged violators. 33 U.S.C. § 1365. 

The proposed definition of "waters of the United States" would create a large amount of 

confusion regarding regulated waters for both landowners and for concerned citizens, and 

creates a gaping opportunity for citizens to bring suit in what would be a poorly-clarified 

area of the law. Citizen suits are costly and time-intensive for all parties involved. In 

addition, should citizens bring suits, numerous courts will be required to interpret the 

provisions of the CWA, including the meaning of "waters of the United States," and a 

wide variety of interpretations will result that will likely develop a broader meaning to 

the rule than was intended by EPA. Citizen suits will further serve to encourage the 

ambiguous and unclear nature of the proposed rule. (p. 9)

Agency Response: The rule is consistent with the Clean Water Act and the 

Supreme Court decisions. Technical Support Document, I.A and I.C. The agencies 

have concluded the benefits of the rule exceed the costs. Preamble, V and Economic 

Assessment in the docket. The rule demarcates the boundaries of CWA jurisdiction 

and provides for increased clarity and certainty. Preamble, II and IV. 

Landmark Legal Foundation (Doc. #15364)

10.99 Application of the "significant-nexus" test establishes only the barest connection between 

the Act and the constitutional power reserved to Congress to regulate interstate 

commerce. As noted in Rapanos, a regulation that "pushes the envelope of constitutional 

validity" should be subject to increased scrutiny. The attenuated link between the 

"waterways" defined in the proposed rule and the Agencies' authority to regulate pursuant 

to the Constitution's Commerce Clause does not survive constitutional muster. Regulating 

"riparian areas" and "ephemeral" tributaries falls outside the scope of the Commerce 

Clause. Filling these areas, which are not actual wetlands without a permit is not 

economic activity and bears no relation to actual channels of economic activity The 

proposed regulation does not regulate commerce. "Commerce" involves transactions or 

activity directly related to those transactions. The Agencies will regulate parcels of land 

that have only the barest connection to traditional waterways -filing these parcels without 

a permit is not inherently economic.

As stated before, EPA and the Corps have eschewed the requirement that the water be 

"navigable." Such broad authority is not authorized under the "channels of commerce" 

principle. Nor is the proposed regulation authorized under congressional authority to 

regulate those activities that "substantially affect" interstate commerce.

Regulation of "channels of commerce" assumes an actual regulation of a "channel." 

While the Supreme Court has ruled that "the authority of Congress to keep channels of 

interstatecommerce free from immoral and injurious uses has frequently been sustained 

..." Caminetti v. United States, 242 U.S. 470, 491 (1917), those instances have been 

limited to regulation of actual "channels.' Under the proposed regulation, the Agencies 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

68

would have authority to regulate wetlands and ephemeral tributaries that cannot be 

characterized as channels.

In SWANCC, the Supreme Court noted that the legislative history of the Act shows 

congressional intent to limit commerce power over navigation. Congress used its 

authority to regulate channels, not activities that substantially affect commerce. It stated, 

"The term 'navigable has at least the import of showing us what Congress had in mind as 

its authority for enacting the CWA: its traditional jurisdiction over waters that were or 

had been navigable in fact or which could reasonably be so made," SWANCC, 531 U.S. at 

172.

This authority arises from the congressional authority to regulate the actual channels of 

interstate commerce, not activities that may substantially affect commerce. Nonetheless, 

the connection between the activity subject to regulation and its effect on interstate 

commerce is too attenuated to withstand scrutiny. To uphold this regulation, a court 

"would have to pile inference upon inference in a manner that would bid fair to convert 

congressional authority under the Commerce Clause to a general police power of the sort

retained by the States..." Further, the court would have to undertake "a view of causation 

that would obliterate the distinction between what is national and what is local in the 

activities of commerce." United States v. Lopez; 514 U.S. 549, 567 (1995). Approving 

this proposed regulation runs counter to the Supreme Court's admonition "that Congress 

may regulate noneconomic activity based solely on the effect that it may have on 

interstate commerce through a remote chain of inferences" Gonzales v. Raich, 125 S.Ct. 

2195, 2217 (Scalia, 1., concurring) The authority EPA and the Corps seek in the proposed 

rule is analogous to the undefined and unlimited authority it sought in the recent 

"Tailpipe Tailoring Rule." The Agencies should not ignore the Supreme Court's 

admonition in that case, which is equally applicable to the proposed "Waters of the 

United States" proposal: We are not willing to stand on the dock and wave goodbye as 

EPA embarks on this multiyear voyage of discovery [referring to the three step phase-in 

set forth in the Tailoring Rule]. We reaffirm the core administrative-law principle that an 

agency may not rewrite clear statutory terms to suit its own sense of how the statute 

should operate. Utility Air Regulatory Group v. Environmental Protection Agency, et al., 

No. 12-1146, slip op. at 23 (June 23, 2014). (p. 11-13)

Agency Response: The Supreme Court has stated that the term “waters of the 

United States” is ambiguous in some respects. The agencies have promulgated a 

rule consistent with the notice and comment requirements of the Administrative 

Procedure Act. The rule is also consistent with the statute, caselaw and the 

Constitution. Technical Support Document, I. A and C. 

Atlantic Legal Foundation (Doc. #15253)

10.100 The proposed rule represents an expansion of federal regulatory authority beyond the 

language and intent of Congress in the Clean Water Act. Although your agencies assert 

that the rule is narrow and clarifies CWA jurisdiction, it in fact expands federal authority 

under the CWA significantly and aggressively and creates unnecessary ambiguity. The 

proposed rule is unconstitutionally vague because the regulated community cannot 

readily determine whether a given property is, or is not, a “jurisdictional wetland.” (p. 2)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

69

Agency Response: The rule demarcates the boundaries of CWA jurisdiction and

provides for increased clarity and certainty. Preamble, II and IV. The rule is 

narrower in scope than the existing regulations. Technical Support Document, I.B. 

The rule is consistent with the Clean Water Act, the Supreme Court decisions, and 

the Constitution. Technical Support Document, I.A and I.C. 

10.101 Rather than providing clarity and making identifying jurisdictional waters “less 

complicated and more efficient,” the proposed rule increases ambiguity and regulatory 

discretion. For example, the rule heavily relies on undefined or vague concepts such as 

“riparian areas,” “landscape unit,” “ordinary high water mark” (– terms that are not found 

in traditional land use or property rights jurisprudence, but is jargon of recent vintage 

used by regulators) as determined by the agencies’ “best professional judgment.” The 

proposed regulation is unconstitutionally vague because the regulated community cannot 

readily determine whether a given property is, or is not, a “jurisdictional wetland.” The 

proposed rule creates more confusion and will lead to more litigation. (p. 4)

Agency Response: The rule demarcates the boundaries of CWA jurisdiction and 

provides for increased clarity and certainty. Preamble, II and IV. The agencies 

disagree that the rule is vague. Technical Support Document, I.C. In fact, the rule 

includes longstanding definitions for “Ordinary High Water Mark” and “High Tide 

Line” to provide greater clarity and certainty. The terms “riparian areas” and 

“landscape unit” are not terms used in the rule. Preamble, IV.

Texas Chemical Council (Doc. #15433)

10.102 But it is imperative that the federal government be restrained within constitutional limits 

to preserve states’ rights and autonomy under the Commerce Clause. The U.S. Supreme 

Court has on multiple occasions cautioned the federal government against such attempts 

at overreaching. While the Court in Rapanos v. United States68 provided its directive to 

the EPA and Corps to clarify the extent of their jurisdiction by initiating – again – a 

rulemaking to define waters of the U.S., it is clear that under the most recent attempt, the 

agencies are misguided in their interpretation of the case law and the constitutional limits 

imposed upon them. (p. 1-2)

Agency Response: The rule is also consistent with the statute, caselaw and the 

Constitution. Technical Support Document, I. A and C. 

10.103 The EPA & Corps lack legal authority to adopt the Proposed Rule and inappropriately 

shift the burden of proof to the regulated community. Although the EPA and Corps claim 

that the newly proposed rule will not expand regulatory jurisdiction and that it reflects 

current law, for which they reference the U.S. Supreme Court decisions in SWANCC69

and Rapanos70 in the preamble, the agencies clearly dismiss the limitations and cautions 

against expansion of federal jurisdiction the Court provides. The proposal would 

 

68

 Rapanos v. United States, 547 U.S. 715 (2006).

69

 531 U.S. 159 (2001).

70

 547 U.S. 715.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

70

incorporate water and land features that in no way meet the definition of “relatively 

permanent, standing, or flowing bodies of water.”71

The agencies instead focus solely on the plurality’s mentioning of “seasonal rivers,” 

which, while not completely excluded from regulatory jurisdiction, are taken out of 

context in the proposal.72 The agencies’ reference to the Rapanos opinion suggests that 

certain waters would be jurisdictional even when they remain dry most of the year. This 

does not comport with the idea that waters must be relatively permanent to justify the 

regulatory reach of the federal government. More specifically, the Court in Rapanos 

indicated that “ephemeral” or “intermittent” streams are specifically excluded from 

jurisdiction of the agencies.73

The Court’s opinions – and namely the plurality opinion – are somewhat tenuous and do 

not provide specific direction to the agencies in defining federal jurisdiction under the 

CWA. But by writing a broad rule with limited exclusions and asking the regulated 

community to suggest additional exclusions, the agencies unreasonably shift the burden 

of proof to the regulated community to claim and prove which waters are not

jurisdictional. The agencies have a duty to provide direction and clarification as to what 

they intend to exert jurisdiction over, especially considering the regulatory implications 

of the CWA. The public deserves sufficient notice, and this proposal only provides 

additional uncertainty. The agencies even recognize this in portions of the proposed rule. 

74The EPA and Corps should instead provide narrowly-tailored definitions of key terms 

that are consistent with their intent to clarify jurisdiction, meaning that no new waters 

would be considered jurisdictional under the proposed rule. They have clearly not met 

this standard. (p. 3-4)

Agency Response: The rule does not shift the burden of proof to the regulated 

community; the federal government must demonstrate that a water is a "water of 

the United States" under the CWA and its implementing regulations. The rule, 

promulgated under authority of Section 501 of the CWA, does establish a binding 

definition of "waters of the United States." The rule is narrower in scope than the 

existing regulations. Technical Support Document, I.B. The rule is consistent with 

the Clean Water Act and the Supreme Court decisions. Technical Support 

Document, I.A and I.C. The rule demarcates the boundaries of CWA jurisdiction 

and provides for increased clarity and certainty. Preamble, II and IV.

10.104 Notably, Justice Kennedy states in the Rapanos plurality opinion that “In applying the 

definition [of waters of the U.S.] to ‘ephemeral streams,’ ... man-made drainage ditches, 

 

71

 Id. at 733.

72

 Id. (“By describing “waters” as “relatively permanent,” we do not necessarily exclude streams, rivers, or lakes 

that might dry up in extraordinary circumstances, such as drought. We also do not necessarily exclude seasonal 

rivers, which contain continuous flow during some months of the year but no flow during dry months--such as the 

290-day, continuously flowing stream postulated by Justice Stevens’ dissent...It suffices for present purposes that 

channels containing permanent flow are plainly within the definition, and that the dissent’s “intermittent” and 

“ephemeral” streams --that is, streams whose flow is “[c]oming and going at intervals...[b]roken, fitful,”... or 

“existing only, or no longer than, a day...– are not.).

73

 See id.

74

 79 Fed. Reg. 22203 (“[T]he agencies recognize that it may add an element of uncertainty to the definition of 

tributary to include features of tributaries which do not have a bed and bank and an [ordinary high water mark].”)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

71

and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of 

the United States’ beyond parody. The plain language of the statute simply does not 

authorize this “Land Is Water” approach to federal jurisdiction.”75 Clearly, the EPA and 

Corps have gone too far in their attempt to define regulatory jurisdiction and it is 

imperative that the definition of waters of the U.S. be limited to that which is explicitly 

authorized under standing federal law. (p. 7)

Agency Response: The rule is consistent with the Clean Water Act and the 

Supreme Court decisions. Technical Support Document, I.A and I.C.

United States Steel Corporation (Doc. #15450)

10.105 The proposed rule unlawfully expands CWA jurisdiction beyond the limits intended by 

Congress and recognized by the U.S. Supreme Court. The proposed rule ignores the 

Rapanos plurality opinion and misinterprets Justice Kennedy's significant nexus standard. 

(p. 1)

Agency Response: The rule is also consistent with the statute, caselaw and the 

Constitution. Technical Support Document, I. A and C. 

Idaho Association of Commerce & Industry (Doc. #15461)

10.106 The proposed rule, as currently drafted, would effectively eliminate any constraints the 

term navigable" imposes on the EPA or the Corps. The CWA, which was enacted in 

1972, limits jurisdiction in the Act to "navigable" waters of the United States. This 

definition has been challenged over the years, but two U.S. Supreme Court decisions over 

the past decade (2001 and 2007) have confirmed that the term "navigable waters" under 

the CWA does not include all waters. In those two cases, Solid Waste Agency of Northern 

Cook County v. U.S. Army Corps of Engineers ("SWANCC") and Rapanos v. United 

States ("Rapanos"), the Court rejected the notion that the jurisdiction of t he CWA 

extends to waters with "any" connection to navigable waters, regardless of how tenuous 

that connection, and rejected the agencies' "land is waters" approach. The current 

proposed rule on Waters of t he United States would override these two very consistent 

decisions by the Court and expand the jurisdiction of t he CWA to include all waters. In 

addition to t he two U.S. Supreme Court decisions, we would also point to the fact that, 

during this time, Congress has failed to pass language that would expand the authority of 

the CWA. Therefore, we are very concerned that this proposed rule would grant 

regulatory control of virtually all waters, and assumes a breadth of authority for the CWA 

that Congress has not authorized and likely exceeds the constitutional limitation on 

federal jurisdiction. (p.1-2)

Agency Response: The rule is also consistent with the statute, caselaw and the 

Constitution. Technical Support Document, I. A and C. 

10.107 As discussed in these comments, the reality is that the proposed rule would increase 

jurisdictional waters by substantially more than the 3 percent proffered by the Agencies 

and, therefore, the administrative and economic impacts of the proposed rule are far 

greater than the Agencies claim . Since the U.S. Supreme Court decisions in SWANCC

 

75

 Rapanos, 547 at 734.
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and Rapanos have consistently limited the jurisdictional scope of t he CWA and t he 

Agencies now wish to regulate an additional "60 percent of streams and millions of acres 

of wetlands across the country," there will be a significant expansion in jurisdiction and 

corresponding cost of oversight and compliance. Such an expansion would essentially 

override Supreme Court precedent and expand the jurisdiction of the CWA to include 

virtually all waters, thereby assuming a breathtaking scope of authority under the CWA 

that Congress did not intend. (p. 2)

Agency Response: The rule is narrower in scope than the existing regulations. 

Technical Support Document, I.B. The rule is also consistent with the statute and 

Supreme Court decisions. Technical Support Document, I. A and C. The agencies 

have provided an economic assessment of the rule. Preamble, V, and economic 

assessment in the docket. 

10.108 Rather than automatically regulating most or all water bodies with a bed and a bank, the 

Agencies must adopt the approach described in Justice Scalia's plurality opinion in 

Rapanos. Consistent with SWANCC's limited view of CWA jurisdiction over nonwetland water bodies, the plurality opinion in Rapanos limited jurisdiction to "those 

relatively permanent, standing or continuously flowing bodies of water 'forming 

geographic features' that are described in ordinary parlance as 'streams' 'oceans, rivers, 

[and] lakes." The Rapanos plurality further held that CWA jurisdiction does not include 

channels through which water flows intermittently or ephemerally, or channels that 

periodically provide drainage for rainfall. The plurality opinion indicated that the 

Agencies' attempt to regulate manmade water bodies as tributaries is not supported by the 

CWA: In applying the definition to "ephemeral streams”, "wet meadows”, “ storm sewers 

and culverts”, "directional sheet flow during storm events”, drain tiles, man-made 

drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the 

term "waters of the United States" beyond parody. The plain language of the statute 

simply does not authorize this "Land Is Waters" approach to federal jurisdiction. 

Rapanos, 547 U.S. at 734. (p. 3)

Agency Response: The rule is also consistent with the statute and Supreme Court 

decisions. Technical Support Document, I. A and C.

Coalition of Local Governments (Doc. #15516)

10.109 What the EPA and Corps ultimately propose goes outside the authority granted under the 

CWA and Supreme Court precedent, and unlawfully gives the EPA and Corps the 

discretion to assert CWA jurisdiction over virtually all waters in the Country. The 

agencies do not have the legislative authority to rewrite the rules and extend their 

authority past what was granted in the CWA by amending their regulations. The EPA and 

Corps are held to the laws as written and cannot rewrite the law. Cf. Burwell v. Hobby 

Lobby Stores, Inc., 134 S.Ct. 2751, 2768-69 (2014) Holding that HHS could not change 

the definition of a person by rulemaking. The Court emphasized that giving a word a 

different meaning for each section of a statute is the same as inventing the law, not 

interpreting it. (p. 5)

Agency Response: The Supreme Court has stated that the term “waters of the 

United States” is ambiguous in some respects. There is only one CWA definition of 

“waters of the United States,” although there may be other statutory factors that 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

73

define the reach of a particular CWA program or provision. The agencies have 

promulgated a rule consistent with the notice and comment requirements of the 

Administrative Procedure Act. The rule is also consistent with the statute and 

Supreme Court decisions. Technical Support Document, I. A and C. 

10.110 Therefore, the EPA and Corps’ current attempt to increase their jurisdiction over “waters 

of the United States” exceeds the authority granted to it by the CWA and current 

Supreme Court precedent. Such attempt to change the law through its regulations is 

invalid absent the legislative authority to do so. (p. 5)

Agency Response: The rule is also consistent with the statute and Supreme Court 

decisions. Technical Support Document, I. A and C. 

Dow Chemical Company (Doc. #15408)

10.111 First, as discussed in detail in the comments of the FWQC, while the statute and the 

regulations have not changed, the agencies in the past have attempted to expand their 

jurisdiction through guidance and permit decisions. Twice, the Supreme Court has ruled 

that these attempts to expand jurisdiction exceed the agencies’ authority under the CWA. 

Broad assertions of jurisdiction based on factors such as use of water by migratory birds 

were never lawful and do not establish a baseline from which to compare the proposed 

rule. As such, the attempt to circumvent those Supreme Court decisions cannot be 

described as anything but an expansion of federal authority. 

Finally, the proposed expansion of federal jurisdiction will significantly increase 

litigation and the burden on the regulated community, state and local governments, and 

regulators...We urge the agencies to withdraw the proposed rule and develop a new 

proposal that articulates legal and technical rationales for regulating water under the 

Clean Water Act that are consistent with the text, structure, and purpose of the Clean 

Water Act and Supreme Court precedent, and that reflect reasonable, constrained 

exercises of federal jurisdiction with deference to state control over land and water 

resources. The agencies must then make those rationales available for public comment. 

(p. 4-5)

Agency Response: The rule does not shift the burden of proof to the regulated 

community; the federal government must demonstrate that a water is a "water of 

the United States" under the CWA and its implementing regulations. The rule 

demarcates the boundaries of CWA jurisdiction and provides for increased clarity 

and certainty. Preamble, II and IV. The rule is consistent with the Clean Water Act 

and the Supreme Court decisions. Technical Support Document, I.A and I.C. 

National Association of Manufacturers (Doc. #15410)

10.112 Additionally, the proposed rule is completely inconsistent with Supreme Court 

precedents interpreting the scope of the Clean Water Act. The agencies have at best 

misunderstood, and at worst ignored or mischaracterized, the authoritative interpretations 

that the Supreme Court has given the agencies regarding the proper scope of the Clean 

Water Act. The proposed rule purports to propose rules that “narrow” the “scope of 

regulatory jurisdiction of the [Clean Water Act]” in order to bring the agencies’ 

regulations into compliance with the Supreme Court’s decisions in Solid Waste Agency of 

Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

74

(“SWANCC”) and Rapanos v. United States, 547 U.S. 715 (2005). See 79 Fed. Reg. at 

22192; see also id. at 22189, 22212. However, the proposed rule would extend federal 

jurisdiction to nonnavigable, intrastate waters that cannot be considered “navigable 

waters” under SWANCC and Rapanos...Indeed, the agencies’ expansive reading of their 

jurisdiction is ultimately premised on the notion that land features can be regulated 

because they influence the flow of water, but the “plain language of the statute simply 

does not authorize this ‘Land is Water’ approach to federal jurisdiction.” Rapanos, 547 

U.S. at 734 (plurality). 

The proposed rule is not only unlawful for the reasons mentioned above and described 

throughout these comments, it also fails to provide parties with “fair warning of the 

conduct [a regulation] prohibits or requires.” Christopher v. SmithKline Beecham Corp., 

132 S. Ct. 2156, 2167 (2012) (quoting Gates & Fox Co. v. Occupational Safety & Health 

Review Comm’n, 709 F.2d 154, 156 (D.C. Cir. 1986). The agencies fail to adequately 

define key terms in the proposed rule and assert the right to determine a Clean Water Act 

violation on the basis of an ad hoc, multi-factor balancing test that ultimately rests on the 

agencies’ “best professional judgment.” 79 Fed. Reg. at 22208. Such a “we know it when 

we see it” standard comports neither with the Due Process Clause of the Constitution nor 

the rulemaking requirements of the Administrative Procedure Act. (p. 2-3) 

The proposed rule exceeds Congress’s intent, is unconstitutional, and does not comport 

with the Supreme Court’s authoritative guidance regarding the scope of the Clean Water 

Act. The proposed rule would regulate as “waters” subject to federal jurisdiction nearly 

every type of “water” imaginable: navigable waters, tributaries, adjacent waters, ditches, 

and even isolated intrastate waters with tenuous connections to waters that in turn have a 

tenuous connection to interstate commerce. A list of all of the specific “water” types 

included in this rulemaking would likely exceed the length of the proposed rule itself—it 

is that broad. The Constitution, the Clean Water Act, and Supreme Court jurisprudence 

do not comport with this expansion of federal authority. 

The limits of Congressional authority are outlined in Article I of the Constitution, and 

Congress does not have power to legislate beyond the bounds of that authority. The 

Commerce Clause provides Congress the authority to “regulate commerce with foreign 

nations, among the several states, and with the . . . tribes.” Article I, Section 8, Clause 3. 

While the Supreme Court has interpreted the Commerce Clause to grant broad authority 

to Congress to regulate interstate commerce, that grant is “not unlimited.” SWANCC, 531 

U.S. at 173. This authority has been interpreted in the context of the Clean Water Act 

already, and the Supreme Court has recognized there are bounds to waters that can be 

regulated under the Clean Water Act as intrastate waters that “substantially affect” 

interstate commerce such that their regulation under the Act is warranted. Id. Likewise, 

Congress does not have blanket authority to regulate all “waters” in the United States, 

and in turn, the agencies may not take their regulations beyond what has been authorized 

by Congress. The proposed rule plainly goes beyond not just what Congress intended, but 

also beyond Congress’s actual authority, by regulating intrastate waters that cannot 

possibly have a substantial effect on interstate commerce, regulation that has been left to 

the states as recognized by Congress in the Clean Water Act. 33 U.S.C. § 1251(b); see 

also U.S. Constitution, Amendment X (“The powers not delegated to the United States by 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

75

the Constitution, nor prohibited by it to the states, are reserved to the states respectively, 

or to the people.”).

The Supreme Court in SWANCC emphasized that the agencies cannot regulate under the 

Clean Water Act in a way that goes beyond the bounds of the Constitution or that 

overrides this primary state authority. In SWANCC, the Court stated that were an 

administrative interpretation, such as this proposed rule, allowed to “invoke the outer 

limits of Congress’ power, we [the Court] expect a clear indication that Congress 

intended that result.” SWANCC, 531 U.S. at 172. “This concern is heightened where the 

administrative interpretation alters the federal-state framework by permitting federal 

encroachment upon a traditional state power.” Id. at 173. Here, as was the case in 

SWANCC, there is no clear indication from Congress that it intended for the agencies to 

regulate—as the proposed rule would here—at the bounds of Congress’s power or to 

upend the federal-state framework. To the contrary, as noted, Congress has emphasized 

the primacy of State authority. The agencies must revise their proposed rule and repropose a rule that stays within those powers Congress intended the agencies to wield 

when it enacted the Clean Water Act, remembering that the states retain the primary 

responsibility for regulating water resources.

In addition to protecting states’ rights, Congress enacted the Clean Water Act “to restore 

and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 

U.S.C. § 1251(a). Among other things, the Act prohibits the discharge of dredged or 

filled materials into “navigable waters”—defined as “the waters of the United States, 

including the territorial seas,” id. § 1362(7)—unless authorized by a permit issued by the 

agencies or a State applying federally-approved standards, id. §§ 1311, 1344. The key 

term here—“waters of the United States”—is also a limitation on the reach of the 

agencies’ regulatory authority with regard to numerous other programs under the Clean 

Water Act, including the NPDES permit program, the section 311 oil spill program, the 

section 303 water quality standards program, and the section 401 state water quality 

program. 79 Fed. Reg. at 22191.76 Over the last thirty years, the Supreme Court 

specifically has addressed the meaning of that phrase in three cases whose holdings are 

controlling and whose analysis must inform the limits of any regulations promulgated 

under the Clean Water Act. (p. 5-6)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution and is narrower in scope than the existing regulations. The rule is not 

vague. Technical Support Document, I.A., B., and C. The Supreme Court’s analysis 

in Illinois v. Milwaukee and City of Milwaukee makes clear that Congress has broad 

authority to create federal law to resolve interstate water pollution disputes. 

Technical Support Document, IV.

10.113 In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the Court held 

that the Corps reasonably construed the Clean Water Act to apply to wetlands that were 

 

76 Because the term “navigable waters” is used in multiple instances in the Clean Water Act, the new definitions that 

the agencies propose would be implemented in multiple provisions of the Code of Federal Register. See 79 Fed. 

Reg. at 22262-74 (setting forth text of proposed changes to Title 33 and Title 40 of Code of Federal Register). For 

the sake of simplicity, these comments cite as exemplary the proposed rules to be implemented in Part 328 of Title 

33 of the Code of Federal Register. This is also the section of the Code of Federal Register discussed in Rapanos.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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contiguous to a navigable water (a creek in that case) and had “wetland vegetation” that 

“extended beyond the boundary of [the] property to [the] navigable waterway.” Id. at 

131. The Court reasoned that the statutory text, which defined “navigable waters” as “the 

waters of the United States” indicated that “Congress intended to allow regulation of 

waters that might not satisfy traditional tests of navigability.” Id. at 133.

The Court also deferred to the Corps’ judgment that wetlands “adjacent to” navigable 

waters should be regulated as “navigable waters” under the Act because those wetlands 

are “inseparably bound up with” the navigable waters they abut. Id. at 131-32, 134. 

Finally, the Court found that Congress had acquiesced in the Corps’ interpretation of the 

Clean Water Act in this context when it considered, but did not enact, legislation that 

would have limited the Corps’ authority over wetlands adjacent to navigable waters. Id. 

at 135-39. (p. 6-7)

Agency Response: The rule is consistent with Supreme Court decisions. Technical 

Support Document, I.C.

10.114 In Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 

(2001) (“SWANCC”), the Court held that there are clear limits to the agencies’ discretion 

to extend the Clean Water Act to nonnavigable waters. SWANCC raised the question 

whether the Corps properly asserted jurisdiction over nonnavigable, intrastate ponds that 

were ecologically connected to traditional navigable waters because they provided a 

habitat for migratory birds that “depend upon aquatic environments for a significant 

portion of their life requirements.” Id. at 164-65, 171. This has been called the 

“Migratory Bird Rule.” The Court held that the “text of the statute will not allow this.” 

Id. at 168.

Although Riverside Bayview Homes allows regulation of some waters that may not meet 

the traditional definition of navigability, it does not permit the agencies to ignore the 

words “navigable waters” or read them out of the statute. Id. at 171-72. Instead, the 

concept of “navigable waters” must inform the agencies’ construction of the phrase 

“waters of the United States,” because it shows that “what Congress had in mind” in 

enacting the statute was 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 

emphasized that under “the Corps’ original interpretation” in the 1974 regulations, 

promulgated just two years after the statute was enacted,” it was “‘the water body’s 

capability of use by the public for purposes of transportation or commerce which is the 

determinative factor.’” Id. at 168 (quoting 33 C.F.R. § 209.120(d)(1) (1974)) (emphasis 

in original). Finding “no persuasive evidence that the Corps mistook Congress’ intent in 

1974,” the Court held that the statute is “clear” and refused to defer to the agencies’ 

attempt to extend the statute to isolated nonnavigable intrastate waters. Id. at 168, 172. 

As discussed above, the Court also went on to explain that even if the statute were not 

clear, it would not accept “an administrative interpretation” that “invokes the outer limits 

of Congress’ power” in the absence of a “clear indication that Congress intended that 

result.” Id. at 172. That concern “is heightened” where, as here, “the administrative 

interpretation alters the federal-state framework by permitting federal encroachment upon 

a traditional state power.” Id. at 173. But “[r]ather than expressing a desire to readjust the

federal-state balance” over land and water use, the Court found that Congress chose in 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

77

the Clean Water Act “to ‘recognize, preserve, and protect the primary responsibilities and 

rights of States . . . to plan the development and use . . . of land and water resources . . . 

.’” Id. at 174 (quoting 33 U.S.C. § 1251(b)). (p. 7-8)

Agency Response: The Supreme Court has stated that the term “waters of the 

United States” is ambiguous in some respects. The agencies have promulgated a 

rule consistent with the notice and comment requirements of the Administrative 

Procedure Act. The rule is also consistent with the statute and Supreme Court 

decisions. Technical Support Document, I. A and C. 

10.115 In Rapanos v. United States, 547 U.S. 715 (2006), the Court again emphasized that the 

traditional concept of “navigable waters” must inform and limit the construction of the 

phrase “waters of the United States.” Rapanos raised the question of whether wetlands 

that “lie near ditches or man-made drains that eventually empty into traditional navigable 

waters” are “waters of the United States.” Id. at 729. The court of appeals held they were, 

but the Supreme Court vacated and remanded that judgment.

Citing the ordinary meaning of “the waters of the United States,” the four-justice plurality 

held that “the waters of the United States” includes “only relatively permanent, standing 

or flowing bodies of water,” such as “streams, oceans, rivers, lakes, and bodies of water 

forming geographical features.” Id. at 732-33 (internal quotation marks omitted). In going 

beyond this “commonsense understanding” and classifying waters like “ephemeral 

streams,” “wet meadows,” “man-made drainage ditches” and “dry arroyos in the middle 

of the desert” as “waters of the United States,” the Corps has stretched the statutory text 

“beyond parody.” Id. at 734 (internal quotation marks omitted).

The plurality also rejected the view that wetlands adjacent to ditches, when those ditches 

do not meet the definition of “waters of the United States,” may nevertheless be subjected 

to federal regulation on the theory that they are “adjacent to” the remote “navigable 

waters” into which the ditches ultimately drain. Id. at 739-40. In the plurality’s view, a 

wetland is only subject to the Clean Water Act if it is adjacent to a channel that “contains 

a ‘wate[r] of the United States,’ (i.e., a relatively permanent body of water connected to 

traditional interstate navigable waters);” and “the wetland has a continuous surface 

connection with that water, making it difficult to determine where the ‘water’ ends and 

the ‘wetland’ begins.” Id. at 742 .

Justice Kennedy concurred in the judgment, but employed a different test. In his view, 

the Corps may deem a water or a wetland “a ‘navigable water’ under the Act” if it has a 

“significant nexus” to a traditional navigable water. Id. at 767. For “wetlands adjacent to 

navigable-in-fact waters,” Justice Kennedy thought there is a “reasonable inference of 

ecologic interconnection” that is sufficient to sustain the Corps’ “assertion of jurisdiction 

for those wetlands . . . by showing adjacency alone.” Id. at 780. Justice Kennedy also said 

the Corps “may choose to identify categories of tributaries that, due to their volume of 

flow (either annually or on average), their proximity to navigable waters, or other 

relevant considerations, are significant enough that wetlands adjacent to them are likely . 

. . to perform important functions for an aquatic system incorporating navigable waters.” 

Id. at 781. But the agencies’ regulations, which allow “regulation of drains, ditches, and 

streams remote from any navigable-in-fact water and carrying only minor water volumes 

toward it,” were so broad that they could not be “the determinative measure of whether 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

78

adjacent wetlands are likely to play an important role in the integrity” of traditional 

navigable waters. Id. “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. Given the 

over-breadth of the regulations, Justice Kennedy concluded that 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.” Id. at 782. (p. 8-9)

Agency Response: The rule is consistent with Supreme Court decisions. 

Technical Support Document, I. C.

10.116 Below, these comments describe how the proposed rule’s definitions of “tributary,” 

“adjacent,” and “other waters,” would extend federal jurisdiction beyond that permitted 

by the Clean Water Act, as interpreted by the Supreme Court in the three cases discussed 

above. There is, however, a more fundamental flaw with the agencies’ approach that 

transcends the defects in those definitions—the proposed rule is based on the erroneous 

legal premise that because water is essential to life and flows over land and into a wide 

variety of natural and man-made features, there is an “ecological” connection between 

most land and nonnavigable water that can in some manner influence traditional 

navigable waters. Based on this ecological connection, the agencies again seek to 

interpret “waters of the United States” so broadly as to be the “essentially limitless grant 

of authority” that the Supreme Court “rejected” in Rapanos and SWANCC. Sackett v. 

EPA, 132 S. Ct. 1367, 1375 (2012) (Alito, J., concurring). 

For example, the proposed rule observes that certain land features can influence whether 

run-off might ultimately flow to a traditionally navigable water. 79 Fed. Reg. at 22214. It 

also emphasizes that wetlands can help prevent flooding. Id. at 22213. To justify the 

proposed rule, the agencies must be interpreting the Clean Water Act to cover land, even 

though the “plain language of the statute simply does not authorize this ‘Land is Waters’ 

approach to federal jurisdiction.” Rapanos, 547 U.S. at 734 (plurality). 

These ecological connections also form the proposed rule’s justification for the expansive 

definition of tributaries,77 and for extending federal jurisdiction to countless isolated 

nonnavigable waters. For example, the proposed rule classifies some isolated waters as 

“adjacent” to navigable waters, and therefore subject to Clean Water Act jurisdiction, on 

the grounds that “uplands separating two waters may not act as a barrier to species that 

rely on and that regularly move between the two waters.” 79 Fed. Reg. at 22210. Other 

isolated waters will be considered “adjacent” to navigable waters if they are within the 

“riparian area” of the navigable water, which is any “area bordering a water where 

surface or subsurface hydrology directly influence the ecological processes and plant and 

animal community structure in that area.” Id. at 22207. Finally, the proposed rule asserts 

that EPA and the Corps may assert jurisdiction over any “water” based on “biological 

 

77 See 79 Fed. Reg. at 22201 (justifying jurisdiction over all “tributaries” based on the “ecological functions” they 

serve); see also id. at 22197 (tributary streams are “biologically connected to downstream traditional navigable 

waters” because of, inter alia, importance of the water for the “life cycl[e]” of plant and animal species); id. at 22205 

(tributaries provide “refuge from predators” for certain species and thus have a “biological” connection to navigable 

waters).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

79

connections” including the “effects of the water” in question on the “life cycle” of “nonaquatic species” and “non-resident migratory birds.” Id. at 22214.

These extenuated ecological connections do not satisfy even Justice Kennedy’s 

“significant nexus” test from Rapanos. That test is derived from SWANCC—an opinion 

in which Justice Kennedy joined the Court majority in striking down the Migratory Bird 

Rule and held that the Clean Water Act does not apply to isolated, nonnavigable ponds, 

notwithstanding the dissent’s assertion that the ponds provide habitat for birds that “serve 

important functions in the ecosystems” of navigable waters. 531 U.S. at 176 n.2 (Stevens, 

J., dissenting).

SWANCC’s holding, in turn, was premised on the fact that a broad reading of “navigable 

waters” would raise constitutional questions and disregard the states’ primary power over 

land and water use. Justice Kennedy reiterated these concerns in his concurring opinion 

in Rapanos, but said the “significant-nexus test” prevents such “problematic applications 

of the statute.” 547 U.S. at 783 (Kennedy, J., concurring in judgment). That can only be 

true if the “significant nexus test is a demanding test that meaningfully restricts the 

assertion of federal jurisdiction” over nonnavigable intrastate waters and wetlands. 

By using “ecological connections” to justify jurisdiction over waters that have no 

hydrological connection to a navigable water, the proposed rule asserts jurisdiction that 

Justice Kennedy made clear that the EPA and the Corps do not have. Cf. id. at 781-82 

(the Clean Water Act cannot be read to cover “waters” that are “little more related to 

navigable-in-fact waters than were the isolated ponds held to fall beyond the Act’s scope 

in SWANCC”); San Francisco Baykeeper v. Cargill Salt Division, 481 F.3d 700 (9th Cir. 

2007) (Clean Water Act does not cover pond nearby but not connected to navigable water 

because there is no “significant nexus”). Rather, as Justice Kennedy stressed, the 

“significant nexus” test must focus exclusively on the extent to which the upstream nonnavigable water impacts “downstream water quality.” SWANCC, 531 U.S. at 769. 

“When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, 

they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’” 

Id. at 780. The proposed rule would impermissibly bring these “waters” within the term 

“waters of the United States,” and thus, within the term “navigable waters.” (p. 9-11)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is not 

based on the “any connection theory” but is instead based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for specified waters and to provide that other certain waters may be jurisdictional 

where a case-specific determination has found a significant nexus. Preamble, III, 

and Technical Support Document, I.B, I.C. and II.

10.117 The Proposed Rule would extend federal jurisdiction to nonnavigable intrastate waters 

and wetlands that Congress did not intend to regulate under the Clean Water Act. Given 

the constitutional concerns raised by agencies’ approach, the agencies should thus 

withdraw the proposed rule and promulgate one that adequately takes account of both the 

traditional meaning of “navigable waters” and the ordinary commonsense meaning of the 

phrase “the waters of the United States.” Such a rule would give effect to both the 

congressional objective of protecting the chemical, physical and biological integrity of 

the nation’s waters and the policy of preserving the primary responsibility of states to 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

80

plan the development and use of land and water resources. It would be consistent with the 

holdings of Riverside Bayview Homes and SWANCC and would raise no due process or 

Tenth Amendment questions. And it would provide a bright-line standard that reduces 

administrative costs and uncertainty about the scope of the federal permitting 

requirements of the Clean Water Act.

Even if the agencies persist in basing the final rule on Justice Kennedy’s “significant 

nexus” test from Rapanos, which due to the Court’s fragmentation in that case is not the 

appropriate holding of the case, see Marks v. United States, 430 U.S. 188, 193 (1977) 

(“When a fragmented Court decides a case and no single rationale explaining the result 

enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that 

position taken by those Members who concurred in the judgments on the narrowest 

grounds . . . .’”), the rule still must be withdrawn and rewritten as key definitions in the 

proposed rule violate not only the Rapanos plurality opinion, but also Justice Kennedy’s 

“significant nexus” test by extending federal jurisdiction to waters that are clearly not 

“waters of the United States” under the holding of Rapanos, and to waters that the 

agencies have not regulated in the past. (p. 11-12)

Agency Response: The rule demarcates the boundaries of CWA jurisdiction and 

provides for increased clarity and certainty. Preamble, II and IV. The rule is 

consistent with the Clean Water Act and the Supreme Court decisions. Technical 

Support Document, I.A and I.C. 

10.118 The agencies cannot solve the vagueness of these definitions by promising to provide 

more specific standards in guidance documents promulgated after the proposed rule is 

finalized. The courts have become increasingly skeptical of attempts by federal agencies 

to promulgate “regulations containing broad language, open-ended phrases, ambiguous 

standards and the like” and then purport to “interpret” those regulations in “guidance 

documents” that purport to be authoritative but have not been subject to notice and 

comment. Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000). 

Deferring to the agency’s subsequent “interpretation” of its regulations in such 

circumstances “would seriously undermine the principle that agencies should provide 

regulated parties ‘fair warning of the conduct [a regulation] prohibits or requires.” 

Christopher, 132 S. Ct. at 2167 (quoting Gates & Fox Co., 709 F.2d at 156; see also Talk 

America, Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2266 (2011) (Scalia, J., concurring) 

(“[D]eferring to an agency’s interpretation of its own rule encourages the agency to enact 

vague rules which give it the power, in future adjudications, to do what it pleases. This 

frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary 

government.”); Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 584 (D.C. 

Cir. 1997) (“A substantive regulation must have sufficient content and definitiveness as 

to be a meaningful exercise in agency lawmaking. It is certainly not open to an agency to 

promulgate mush and then give it concrete form only through subsequent less formal 

‘interpretations.’ That technique would circumvent section 553, the notice and comment 

procedures of the APA.”) (citation omitted). (p. 13)

Agency Response: The rule is not vague and meets Constitutional due process 

requirements. Technical Support Document, I.C.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

81

Federal Water Quality Coalition (Doc. #15822.1)

10.119 First, as discussed below, while the statute and the regulations have not changed, the 

agencies in the past have attempted to expand their jurisdiction through guidance and 

permit decisions, relying on theories such as use of water by migratory birds to argue that 

water has an impact on interstate commerce, or so-called connections created by ditches 

or even tire ruts to argue that water is part of or adjacent to a tributary system. Twice, the 

Supreme Court ruled that these attempts to expand jurisdiction because they exceed the 

agencies’ authority under the CWA. Broad assertions of jurisdiction based on factors 

such as use of water by migratory birds were never lawful and do not establish a baseline 

against which the proposed rule can be compared. As such, the attempt to circumvent 

those Supreme Court decisions cannot be described as anything but an expansion of 

federal authority. (p. 6)

Agency Response: The rule is consistent with the Clean Water Act and the 

decisions of the Supreme Court. Technical Support Document, I.A and .C.

10.120 Second, the agencies fail to recognize that the CWA addresses only water quality. In 

doing so, they attempt to expand their authority to include jurisdiction based on 

movement of animals and protection of habitat or based on the storage or flow of water. 

These are invalid foundations for the proposed rule. (p. 7)

Agency Response: The rule is consistent with Supreme Court decisions that 

rejected arguments that the Clean Water Act does not allow regulation of water 

quantity. Technical Support Document, I.A. 

10.121 Third, the agencies attempt to expand their jurisdiction by citing an opinion joined by a 

single Supreme Court justice in the Rapanos case, Justice Kennedy’s concurring opinion. 

In doing so they fail to respect the rule established by the Supreme Court that the 

judgment of the court is the narrowest grounds on which a majority of the judges who 

concurred in the decision agree. Fourth, the proposed rule does not recognize the limits 

established in Justice Kennedy’s opinion, taking language of his opinion out of context to 

justify a determination that, in the aggregate, virtually all water can be federally 

regulated. In fact, the agencies have issued a proposal that, by abandoning the protection 

of the quality of navigable waters as the basis for federal jurisdiction, goes beyond even 

the broad scope supported by the justices who dissented in the Rapanos case. (p. 7)

Agency Response: The rule is consistent decisions of the Supreme Court. 

Technical Support Document, I.C. The dissent would have deferred to the existing 

regulations and the rule is narrower in scope than the existing regulations. 

Technical Support Document, I.B. and C.

10.122 The Proposed Rule is not supported by the text, structure, or purpose of the Clean Water 

Act or Supreme Court precedent. The agencies justify their assertion of jurisdiction over 

tributaries, adjacent waters, and other waters based solely on a “significant nexus” to 

navigable or interstate water or a territorial sea. “Significant nexus” is defined as an 

effect that is more than speculative or insubstantial on the chemical, physical, or 

biological integrity of a navigable or interstate water or territorial sea.78 To support their 

 

78

 See supra n. 28.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

82

determination that all “tributaries,” all “adjacent waters,” and certain “other waters” have 

a so-called “significant nexus,” the agencies evaluated scientific studies, many of which 

examined biological connections between bodies of water, or water retention, without 

examining impacts on the quality of navigable water. Jurisdiction based on these studies 

is not supported by the text, structure, or purpose of the CWA, or by Supreme Court 

precedent. 

A. The Clean Water Act, which authorizes the protection of the quality of navigable 

waters, does not support jurisdiction based on the flow of water or on biota. The 

CWA establishes the objective of restoring and maintaining the chemical, 

physical, and biological integrity of the Nation’s waters, defined as the navigable 

waters of the United States. CWA § 101(a). To achieve this objective, the Act 

focuses on setting and achieving water quality goals for each jurisdictional water 

body. The Act does not more broadly seek to control human activities, land and 

water resource use, or the management of species and their habitat.

The text of the CWA declares that, “consistent with the provisions of the Act, it is the 

national goal that the discharge of pollutants into the navigable waters be eliminated by 

1985 and it is the national goal that by July 1, 1983, wherever attainable, water quality be 

achieved which provides for the protection and propagation of fish, shellfish, and wildlife 

and provides for recreation in and on the water.” CWA § 101(a)(1)-(2) (emphasis added). 

EPA or states with delegated authority under the Act are required to set water quality 

goals based on attainable uses of each water body. CWA § 303. To meet these water 

quality goals, the Act prohibits the discharge of pollutants except where authorized. 

CWA § 301(a). The discharge of pollutants is regulated under section 402, and the 

discharge of dredge and fill material is regulated under section 404. CWA §§ 402, 404. 

All of these authorities are related to the protection of water quality. In contrast, Congress 

did not, in the CWA, give the agencies any authority to control water supply79 or to 

protect species and their habitat.80 In fact, Congress added section 101(g) to the Act in the 

1977 amendments for the express purpose of preventing federal agencies from using the 

CWA to expand their authority into areas beyond water quality. According to its sponsor: 

“This amendment came immediately after the release of the Issue and Option 

Papers for the Water Resource Policy Study now being conducted by the Water 

Resources Council. Several of the options contained in that paper called for the 

use of Federal water quality legislation to effect Federal purposes that were not 

strictly related to water quality. Those other purposes might include, but were not 

limited to Federal land use planning, plant siting and production planning 

 

79

 CWA § 101(g). “It is the policy of Congress that the authority of each State to allocate quantities of water within 

its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act. It is the further policy of 

Congress that nothing in this Act shall be construed to supersede or abrogate rights to quantities of water which have 

been established by any State.”

80

 Even the Endangered Species Act, which does protect species and their habitat, applies only to certain species. 

See 16 U.S.C. § 1531(b) (“The purposes of this chapter are to provide a means whereby the ecosystems upon which 

endangered species and threatened species depend may be conserved, to provide a program for the conservation of 

such endangered species and threatened species, and to take such steps as may be appropriate to achieve the 

purposes of the treaties and conventions set forth in subsection (a) of this section.”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

83

purposes. This "State's jurisdiction" amendment reaffirms that it is the policy of 

Congress that this act is to be used for water quality purposes only.”

81

Despite this limitation on their authority, the agencies purport to assert jurisdiction over 

water features that restrict flow or hold water. For example, EPA cites irrigation, flood 

control, and farm ponds as examples of features that can be “connected” to downstream 

water due to the fact that they can hold water. 

“Nearly all river networks in prairie regions have been altered by impoundments 

for irrigation storage and flood control, from small farm ponds in headwaters to 

large reservoirs on river mainstems (Smith et al., 2002; Galat et al., 2005; 

Matthews et al., 2005). Decline in flood magnitude, altered flow timing, and 

reduced flow variability and turbidity are evident in many prairie rivers compared 

to historically documented conditions (e.g., Cross and Moss, 1987; Hadley et al., 

1987; Galat and Lipkin, 2000).”

82

Based on this rationale, the agencies could, through permitting, control the maintenance 

and use of any structure that is used to hold water, thereby controlling the supply of 

water. This would be a radical expansion in CWA authority. 

Despite the limits of their authority, the agencies also purport to assert jurisdiction over 

water based on so-called “biological connectivity.” According to the agencies: 

“Evidence of biological connectivity and the effect on waters can be found by 

identifying: resident aquatic or semi-aquatic species present in the ‘‘other water’’ 

and the tributary system (e.g., amphibians, aquatic and semi-aquatic reptiles, 

aquatic birds); whether those species show life-cycle dependency on the identified 

aquatic resources (foraging, feeding, nesting, breeding, spawning, use as a nursery 

area, etc.); and whether there is reason to expect presence or dispersal around the 

‘‘other water,’’ and if so whether such dispersal extends to the tributary system or 

beyond or from the tributary system to the ‘‘other water.”

83

The Draft Connectivity Report states it this way: 

“These movements can result from passive transport by water, wind, or other 

organisms (e.g., birds, terrestrial mammals), from active movement with or 

against water flow (e.g., upstream fish migration), or from active movement over 

land (for biota capable of terrestrial dispersal) or through the air (for birds or 

insects capable of flight). Thus, biological connectivity can occur within aquatic 

ecosystems or across ecosystem or watershed boundaries, and it can be 

multidirectional. For example, biota can move downstream from perennial, 

intermittent, and ephemeral headwaters to rivers, upstream from estuaries to rivers 

to headwaters, or laterally between floodplain wetlands, geographically isolated 

wetlands, rivers, lakes, or other water bodies.”

84

 

81

 123 Cong. Rec. &. S19677-78, (daily ed., Dec. 15, 1977) (emphasis added) (floor statement of Senator Wallop).

82

 Draft Connectivity Report, at 4-45.

83

 79 Fed. Reg. at 22214.

84

 Draft Connectivity Report, at 3-39.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

84

Based on this rationale, the agencies could assert jurisdiction over almost any water 

located anywhere based on its use by biota. As discussed below, none of the Supreme 

Court cases reviewing CWA jurisdiction have ever suggested that the CWA addresses 

anything other than water quality.85 Regulating water based on use by biota would be a 

radical expansion of CWA authority. 

In a brief filed on September 11, 2014, EPA recognized the importance of avoiding an 

interpretation of the CWA that would assert expansive federal control over water use and 

allocation. According to EPA: 

The Act is a complex statute with a “welter of consistent and inconsistent goals.” 

Catskill I, 273 F.3d at 494. To be sure, the Clean Water Act’s stated objective is 

“to restore and maintain the chemical, physical, and biological integrity of the 

Nation’s waters.” 33 U.S.C. § 1251(a). However, “it frustrates rather than 

effectuates legislative intent simplistically to assume that whatever furthers the 

statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 

522, 526 (1987). As this Court has acknowledged, the CWA also reflects 

Congress’s desire to limit interference with traditional state control of water use 

and allocation. Catskill II, 451 F.3d at 79. Thus, the statute states “the policy of 

Congress that the authority of each State to allocate quantities of water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired” by the Act. 

33 U.S.C. § 1251(g). More broadly, Congress emphasized its policy “to 

recognize, preserve, and protect the primary responsibilities and rights of States . . 

. to plan the development and use (including restoration, preservation, and 

enhancement) of . . . water resources . . . .” Id. § 1251(b). Elsewhere in the statute, 

Congress prohibits construction of the Act “as impairing or in any manner 

affecting any right or jurisdiction of the States with respect to the waters 

(including boundary waters) of such States.” Id. § 1370(2). These provisions do 

not, of their own force, “limit the scope of water pollution controls that may be 

imposed on users who have obtained, pursuant to state law, a water allocation.” 

PUD No. 1 of Jefferson County v. Washington Dep’t of Ecology, 511 U.S. 700, 

720-21 (1994). They do, however, show that one of Congress’s purposes was to 

avoid interference with state water allocation decisions.86

We agree. Unfortunately, the proposed rule does not respect these limits.

B. Jurisdiction based on a “significant nexus” is not supported by Supreme Court 

precedent. In contrast to the proposed rule, in a series of decisions starting with 

Riverside Bayview, 474 U.S. 121 (1985), the Supreme Court interpretations of the 

Clean Water Act have analyzed the scope of federal jurisdiction based on impacts 

to the quality of navigable waters. 

1. Riverside Bayview. 

 

85

 See infra pp. 23-28.

86

 Catskill Mountains Chapter of Trout Unlimited, Inc., et al. v. EPA, Docket No. 14-1823 (2d Cir), Brief for

Defendant EPA, et al. (Sept. 11, 2014), at 29-30 (attached).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

85

In Riverside Bayview, the Court found that a wetland that directly abuts a water of the 

U.S. is a continuation of such water. In doing so, the Court approved the rationale 

provided by the Corps when it included adjacent wetlands in the 1977 definition of 

waters of the U.S. See 474 U.S. at 134 (“the landward limit of Federal jurisdiction under 

Section 404 must include any adjacent wetlands that form the border of or are in 

reasonable proximity to other waters of the United States, as these wetlands are part of 

this aquatic system,” quoting 42 Fed. Reg. 37128 (1977) (emphasis added)). As the Court

noted: 

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.87

Thus, in situations where a wetland abuts a water of the U.S., Riverside Bayview stands 

for the proposition that the landward extent of that particular water of the U.S. includes 

the wetland. It does not address a wetland that is not physically connected to a water of 

the U.S. as part of a continuum. The Court did not express any opinion regarding “the 

authority of the Corps to regulate discharges of fill material that are not adjacent to 

bodies of open water” citing 33 CFR 323.2(a)(2) and (3). 474 U.S. at 131 n.8. The Court 

simply held that: “We cannot say that the Corps' conclusion that adjacent wetlands are 

inseparably bound up with the ‘waters’ of the United States - based as it is on the Corps' 

and EPA's technical expertise - is unreasonable.” Id. at 134. 

Importantly, nothing in Riverside Bayview suggests that the CWA addresses anything 

other than water quality. Even if the purpose of maintaining and improving the quality of 

the water is to provide clean water for fish, birds, mammals, and insects, the focus is on 

the condition of the water itself, not on the biota that may live for part of its life in the 

water. As the Court noted: 

Section 404 originated as part of the Federal Water Pollution Control Act 

Amendments of 1972, which constituted a comprehensive legislative attempt “to 

restore and maintain the chemical, physical, and biological integrity of the 

Nation's waters.” CWA § 101, 33 U.S.C. § 1251. This objective incorporated a 

broad, systemic view of the goal of maintaining and improving water quality: as 

the House Report on the legislation put it, “the word ‘integrity’ ... refers to a 

condition in which the natural structure and function of ecosystems is [are] 

maintained.” H.R. Rep. No. 92-911, p. 76 (1972). Protection of aquatic 

ecosystems, Congress recognized, demanded broad federal authority to control 

pollution, for “[w]ater moves in hydrologic cycles and it is essential that 

 

87

 Id. at 132..
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

86

discharge of pollutants be controlled at the source.” S. Rep. No. 92-414, p. 77 

(1972), U.S. Code Cong. & Admin. News 1972, pp. 3668, 3742.5788

So, in accordance with Riverside Bayview, adjacency determines the landward extent of 

open water (“where water ends and land begins”), and adjacent wetlands are included in 

the definition of jurisdictional waters to protect and maintain the quality of navigable 

waters. 

2. In the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 

Engineers (SWANCC), 531 U.S. 159 (2001), the Court declined to go beyond 

Riverside Bayview and assert jurisdiction over waters or wetlands that were not 

“inseparably bound up with the ‘waters’ of the United States.” 531 U.S. at 167 

(quoting Riverside Bayview). SWANCC addressed the part of the current 

definition of waters of the U.S. that asserts jurisdiction over “other waters” “the 

use, degradation or destruction of which could affect interstate or foreign 

commerce.” 33 C.F.R. § 328.3(a)(3). In its decision, the Supreme Court informed 

us that the term “navigable” cannot be read out of the Act.89 The Court also noted 

that the gravel quarry in Cook County, Illinois, was a “far cry, indeed, from the 

‘navigable waters’ and ‘waters of the United States’ to which the statute by its 

terms extends.” Id. at 173. The Court distinguished Riverside Bayview by noting 

that: 

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 the authority 

of the Corps to regulate discharges of fill material into wetlands that are 

not adjacent to bodies of open water . . . .” Id. at 131–132, n. 8. In order to 

rule for respondents 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.90

Based on this analysis, the SWANCC Court determined that use of a water body by 

migratory birds alone is not a basis for jurisdiction under the Act.91 The rationale used to 

 

88

 Id. at 132-33 (emphasis added).

89

 “We thus decline respondents' invitation to take what they see as the next ineluctable step after Riverside Bayview 

Homes: holding that isolated ponds, some only seasonal, wholly located within two Illinois counties, fall under § 

404(a)'s definition of "navigable waters" because they serve as habitat for migratory birds. As counsel for 

respondents conceded at oral argument, such a ruling would assume that "the use of the word navigable in the statute 

... does not have any independent significance." Tr. of Oral Arg. 28. We cannot agree that Congress' separate 

definitional use of the phrase "waters of the United States" constitutes a basis for reading the term "navigable 

waters" out of the statute. We said in Riverside Bayview Homes that the word "navigable" in the statute was of 

"limited import," 474 U. S., at 133, and went on to hold that § 404(a) extended to nonnavigable wetlands adjacent to 

open waters. But it is one thing to give a word limited effect and quite another to give it no effect whatever. The 

term "navigable" has at least the import of showing us what Congress had in mind as its authority for enacting the 

CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so 

made. See, e. g., United States v. Appalachian Elec. Power Co., 311 U. S. 377, 407-408 (1940).” SWANCC, at 171-

172.

90

 531 U.S. at 167-68 (emphasis added).

91

 See SWANCC, 531 U.S. at 173 (denying jurisdiction over water based on use by migratory birds based on the fact 

that the Clean Water Act regulates only navigable waters and declining to invoke the “outer limits of Congress’ 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

87

reach this conclusion severely called into question to legitimacy of federal jurisdiction 

over any isolated water, and since 2001 the Corps and EPA have not attempted to assert 

jurisdiction over isolated waters. 92

3. In Rapanos v. United States, the Court addressed a third category of jurisdictional 

waters: tributaries and their adjacent wetlands. 547 U.S. 715 (2006). The plurality 

held that to be subject to the CWA, water must be relatively permanent surface 

water.93 The concurring opinion by Justice Kennedy held that to be subject to 

CWA jurisdiction, water must have a “significant nexus” to traditional navigable 

water.94 The dissenting justices would apply jurisdiction more broadly, based on 

“entwined” ecosystems. 547 U.S. at 797. 

However, all of the opinions in Rapanos recognized that the CWA protects water quality. 

The plurality notes that the CWA is a “statute regulating water quality, rather than (for 

example) the shape of stream beds.” 547 U.S. at 736 n.7. In his Rapanos concurrence, 

Justice Kennedy describes the CWA as “a statute concerned with downstream water 

quality.” 547 U.S. at 769. Even the dissent focused on water quality. Id. at 796-97, 810 

(arguing that “it is enough that wetlands adjacent to tributaries generally have a 

significant nexus to the watershed’s water quality,” and accusing the plurality of 

“needlessly jeopardize[ing] the quality of our waters.”) (emphasis added). 

Despite the Court’s recognition that the CWA is a water quality protection statute, the 

proposed rule relies entirely on the opinion of Justice Kennedy, thus ignoring constraints 

imposed by the plurality opinion, and misapplies Justice Kennedy’s opinion to assert the 

very broad federal jurisdiction described above, without staying focused on water quality 

protection. Accordingly, the proposed rule is not consistent with Supreme Court case law.

(p. 22-29)

Agency Response: The rule is consistent with the Clean Water Act and the 

decisions of the Supreme Court. Technical Support Document, I.A and .C. 

Consistent with Justice Kennedy’s opinion, the rule is not based on the “any 

connection theory” but is instead based on the agencies’ careful examination of the 

science and the law to make a determination of significant nexus for specified waters 

and to provide that certain other waters may be jurisdictional where a case-specific 

determination has found a significant nexus. Preamble, III, and Technical Support 

Document, I.B., I.C., and II. Under the significant nexus standard it is necessary 

and appropriate to assess whether waters significantly affect the biological integrity 

of traditional navigable waters, interstate waters, or the territorial seas and the 

agencies' assessment of biological data and information was based on any effects on 

biological integrity. Preamble, III and IV and Technical Support Document, I.C. 

and VII. To the extent the commenter is asserting that there is no biological or 

 

power”); see also Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726, 729 (E.D. Va. 1988), aff’d, 885 F.2d 866 (4th

Cir. 1989) (denying jurisdiction over water based on use by migratory birds because connection to interstate 

commerce is too speculative).

92

 EPA, Potential Indirect Economic Impacts and Benefits Associated with Guidance Clarifying the Scope of Clean 

Water Act Jurisdiction) (April 27, 2011).

93

 547 U.S. at 733.

94

 547 U.S. at 780.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

88

physical component of water quality, the agencies' disagree. See e.g. CWA Sections 

101(a), 303.

10.123 The brief cited by commenters is entirely consistent with the rule. As the brief 

states:"These provisions do not, of their own force, “limit the scope of water pollution 

controls that may be imposed on users who have obtained, pursuant to state law, a water 

allocation.” PUD No. 1 of Jefferson County v. Washington Dep’t of Ecology, 511 U.S. 

700, 720-21 (1994)." Interpreting the statute does at times requiring balancing the goals 

of the statute but, again, as the brief states: "To be sure, the Clean Water Act’s stated 

objective is “to restore and maintain the chemical, physical, and biological integrity of 

the Nation’s waters.” 33 U.S.C. § 1251(a)." Moreover, the rule does not interfere with 

state water allocation decisions.The Agencies cannot rely on the Kenney opinion alone to 

establish jurisdiction. Under the Supreme Court’s ruling in Marks v. United States, 430 

U.S. 188, 193 (1977), when no opinion of the Court garners a majority, “the holding of 

the Court may be viewed as that position taken by those Members who concurred in the 

judgments on the narrowest grounds.” Marks, 430 U.S. at 193 (emphasis added). Several 

post-Rapanos courts have determined that the Kennedy opinion is the narrower of the 

opinions and therefore, following Marks, controlling, without looking for the narrower 

grounds that underlie both opinions jointly.95 Other courts have gone even further and 

refused to apply Marks and have agreed with the United States that federal jurisdiction 

may be established under either the plurality opinion or the Kennedy opinion.96

To reach these conclusions, these courts have deviated from the guidance provided by the 

Supreme Court in Marks. To justify using either the plurality or the Kennedy opinion to 

establish jurisdiction, the First Circuit argues that if Justice Kennedy’s test is satisfied, 

then at least Justice Kennedy plus the four dissenters would support jurisdiction and if the 

plurality’s test is satisfied, then at least the four plurality members plus the four dissenters 

would support jurisdiction. Johnson, 467 F.3d at 64 (quoting the dissenting opinion in 

Rapanos suggesting that courts could uphold jurisdiction where the plurality test is met 

but the Kennedy test is not). The Seventh Circuit uses a similar argument to support its 

conclusion that the Kennedy test is controlling stating that: “any conclusion that Justice 

Kennedy reaches in favor of federal authority over wetlands in a future case will 

command the support of five Justices (himself plus the four dissenters).” Gerke, 464 F.3d 

at 725. These holdings ignore the fact that in Rapanos Justice Kennedy concurred with 

the plurality, not the dissent, and have the effect of turning the dissenting opinions into 

majority opinions. This result is not permissible under Supreme Court precedent. 

A proper reading of Supreme Court precedent would apply the Marks test to require a 

water body to meet both the plurality and the Kennedy standards before jurisdiction is 

invoked. That would result in the application of the “narrowest grounds” as required by 

Marks. See, e.g., King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (requiring the test 

used to be one in which the plurality and the concurrence would reach the same 

conclusion to avoid the result where a single opinion that lacks majority support is turned 

 

95

 See, e.g., United States v. Gerke Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir. 2006), cert. denied, 552 U.S. 

810 (2007).

96

 See, e.g., United States v. Johnson, 467 F.3d 56 (1st Cir. 2006); U. S. v. Gonzalez-Lauran, 437 F.3d 1128, 1134-

1139 (11th Cir. 2006).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

89

into national law). Thus, a water body should meet the relative permanence, continuous 

surface connection, and other requirements of the plurality opinion, and the significant 

nexus and other requirements of Justice Kennedy’s opinion, to qualify as jurisdictional.

Only thus would the water body meet the requirements set by the five Justice majority 

that issued the controlling decision to remand in Rapanos. 

Under the analysis of the D.C. Circuit in Marks, it is invalid for the agencies to base their 

regulations on the opinion written by Justice Kennedy without regard to the plurality 

opinion. “When eight of nine Justices do not subscribe to a given approach to a legal 

question, it surely cannot be proper to endow that approach with controlling force, no 

matter how persuasive it may be.” Id. Yet, that is exactly the approach adopted by the 

proposed rule. According to one very frustrated district court judge trying to apply 

Rapanos, relying on Justice Kennedy’s opinion would mean that the slogan that we are a 

“government of laws, and not of men” perhaps “should be amended to add that: 

‘Sometimes we are a government of one (man) (woman) and not of law.’”97 That result is 

not legally defensible. (p. 29-31)

Agency Response: The Courts of Appeals that have considered this issue have not 

adopted the position that jurisdiction exists only where both the plurality’s and 

Justice Kennedy’s standards are satisfied. Technical Support Document, 1C. 

10.124 The Proposed Rule goes beyond the jurisdiction supported by either the Rapanos plurality 

or the Kennedy opinion. Even if jurisdiction under the CWA could be based on just one 

of the concurring Supreme Court majority opinions in Rapanos, the proposed rule would 

not be valid because it exceeds the scope of jurisdiction supported by either the plurality 

or Justice Kennedy. And, as just noted, jurisdiction needs to be based on the two opinions 

taken together. 

In his opinion, Justice Kennedy opines that a wetland “either alone or in combination 

with similarly situated lands in the region” could “significantly affect the chemical, 

physical, and biological integrity of other covered waters more readily understood as 

navigable.” 547 U.S. at 780. The agencies have taken that statement and based their 

entire rule on it. That is, the agencies justify jurisdiction over all “tributaries,” all 

“adjacent waters,” and, on a case-by-case basis, “other waters,” by arguing that the 

cumulative or aggregate effects of all such waters located in the same watershed are 

demonstrated to have (or in the case of other waters can be demonstrated to have) a 

significant effect on navigable waters.98 Further, they have argued, expanding Justice 

Kennedy’s words, that a physical, or chemical or biological connection each is sufficient 

by itself to create a nexus that establishes jurisdiction, allowing the agencies to assert 

federal jurisdiction based on impacts to the life cycle of biota, not to the quality of 

navigable water.99

This expanded application of Justice Kennedy’s words fails to acknowledge that Justice 

Kennedy himself recognized limits on federal jurisdiction. As a result, under the 

 

97

 United States v. Robinson, (CV 04-PT-199-S) (U.S. Dist. Ct. No. Dist. Ala.) (mem. opinion Nov. 11, 2007), at 

30.

98

 79 Fed. Reg. at 22197.

99

 79 Fed. Reg. at 22214.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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proposed rule there is no water with an insignificant nexus because, in the aggregate or 

cumulatively, all effects would be significant. Thus, even if Justice Kennedy’s 

“significant nexus” standard were the law of the land, the proposed rule is overly broad. 

As discussed above, the Kennedy opinion is not the law of the land so the agencies must 

incorporate the requirements of the plurality opinion into the rule as well. Indeed, the 

plurality opinion’s requirements for waters to be relatively permanent, to have continuous 

surface connections to navigable waters, and so forth can be understood as indicia of 

significant nexus, thus reconciling the two opinions. (p. 31-32)

Agency Response: The rule is consistent with caselaw and the decisions of the 

Supreme Court. Technical Support Document, 1C. Consistent with Justice 

Kennedy’s opinion, the rule is based on the agencies’ careful examination of the 

science and the law to make a determination of significant nexus for specified waters 

and to provide that certain other waters may be jurisdictional where a case-specific 

determination has found a significant nexus. Preamble, III, and Technical Support 

Document, I.B, I.C. and II.

10.125 The Proposed Regulation of tributaries is overbroad. Before Rapanos, the agencies had 

attempted to expand the jurisdiction of the CWA to anything that had a bed, a bank, and 

an ordinary high water mark through guidance and agency practices. Both the plurality 

and the Kennedy opinions disapproved this interpretation of the law and require more 

than that to establish federal jurisdiction. Under both opinions, there must be a surface 

water connection to navigable water. However, a surface hydrologic connection alone is 

not sufficient to establish jurisdiction. “[R]elatively continuous flow is a necessary

condition for qualification as a ‘water,’ not an adequate condition.” 547 U.S. at 736 n.7 

(emphasis in original) (plurality opinion). “[M]ere hydrologic connection should not 

suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to 

establish the required nexus with navigable waters as traditionally understood.” Id. at 

784-85 (Justice Kennedy concurring). In fact, Justice Kennedy criticizes the plurality 

opinion for allowing jurisdiction to be based on a hydrologic connection involving 

relatively continuous flow, without requiring a significant nexus. Id. at 776-77 (“by 

saying the Act covers wetlands (however remote) possessing a surface-water connection 

with a continuously flowing stream (however small), the plurality's reading would permit 

applications of the statute as far from traditional federal authority as are the waters it 

deems beyond the statute's reach”). 

The proposed rule would reinstate the Corps’ practice of asserting jurisdiction over every 

so called tributary based on the presence of a bed, a bank, and an OHWM. While the rule 

also requires a tributary to contribute flow, that flow can be absent for any period of time 

and also can be supplied through groundwater. Not even Justice Kennedy would support 

this as a basis for jurisdiction. According to Justice Kennedy, the Corps’ existing 

standard for tributaries provided no assurance that they (or adjacent wetlands) would 

significantly affect downstream navigable water. 547 U.S. at 781.

[T]he breadth of this standard-which seems to leave wide room for 

regulation of drains, ditches, and streams remote from any navigable-infact water and carrying only minor water 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 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

91

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.

100

The proposed rule for the first time also expressly includes manmade conveyances, such 

as ditches, in the regulatory definition of waters of the U.S.101 and for the first time in a 

rule defining waters of the U.S., asserts jurisdiction over ephemeral waters.102

In Rapanos, the plurality cited Corps claims of jurisdiction over remote roadside ditches, 

irrigation ditches and drains with intermittent flows, dry land features such as “arroyos, 

coulees, and washes,” occasionally flowing “drain tiles, storm drain systems, and 

culverts,” and, “most implausibly of all,” an arid development site “located in the middle 

of the desert, through which ‘water courses . . . during periods of heavy rain’” as 

examples of agency overreaching. 547 U.S. at 727 (plurality opinion). 

According to the plurality opinion: 

In applying the definition to “ephemeral streams,” “wet meadows,” storm 

sewers and culverts, “directional sheet flow during storm events,” drain 

tiles, man-made drainage ditches, and dry arroyos in the middle of the 

desert, the Corps has stretched the term “waters of the United States” 

beyond parody. The plain language of the statute simply does not 

authorize this “Land Is Waters” approach to federal jurisdiction.103

Yet under the proposed rule, the features identified by the plurality and Justice Kennedy 

as examples of waters that are not subject to CWA jurisdiction all could meet the 

proposed definition of “tributary” (even a wet meadow with no ordinary high water 

mark) that is presumed to have a significant nexus to a navigable or interstate water or 

territorial sea.104 Further, in contrast to Justice Kennedy’s opinion (quoted above) that 

remote drains, ditches, and streams, or their adjacent wetlands, would not be 

jurisdictional because they lack a significant nexus to downstream navigable water, the 

proposed rule presumes that all such drains, ditches, and streams are tributaries that have 

a significant nexus to downstream waters based on the aggregate or cumulative

effects.105 This expansion of jurisdiction is not supported by either the plurality or the 

Kennedy opinion. (p. 32 – 34)

 

100

 Id. at 781-82 (Justice Kennedy, concurring).

101

 The 1977 Corps regulations expressly excluded manmade conveyances. 33 C.F.R. 323.2(a)(3)(1977).

102

 As noted above, the Corps policy shift to include ephemeral streams in the definition of tributary came in the 

preamble to its 2000 § 404 permit regulations. See supra n. 15.

103

 547 U.S. at 734.

104

 79 Fed. Reg. at 22263 (proposed 33 C.F.R. 323.2(c)(5)).

105

 See 79 Fed. Reg. at 22227 (“The scientific literature clearly demonstrates that cumulatively, streams exert strong 

influence on the character and functioning of rivers. In light of these well documented connections and functions, 

the agencies concluded that tributaries, as defined, alone or in combination with other tributaries in a watershed, 

significantly affect the chemical, physical, or biological integrity of a traditional navigable water, interstate water, or 

the territorial seas.”) (emphasis added).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

92

Agency Response: The rule narrows the waters that meet the definition of 

tributary by requiring both a bed and banks and another indicatory of ordinary 

high water mark. Preamble IV, and, Technical Support Document I.C. Consistent 

with Justice Kennedy’s opinion, the rule is based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for covered tributaries. Only ditches and drains that meet the definition of 

tributary in the final rule are jurisdictional. Preamble, III and IV and Technical 

Support Document, I.C. and VII. 

10.126 The Proposed regulation of adjacent water is overbroad. In Rapanos, the plurality 

expressed incredulity at the breadth of the assertion of jurisdiction under the existing, 

narrower, concept of adjacency, noting that: “One court has held since SWANCC that 

wetlands separated from flood control channels by 70-foot-wide berms, atop which ran 

maintenance roads, had a "significant nexus" to covered waters because, inter alia, they 

lay "within the 100 year floodplain of tidal waters." 547 U.S. at 728 (plurality opinion). 

Justice Kennedy also expressed skepticism over the Corps’ expansion of the concept of 

“adjacency.” “The Corps’ theory of jurisdiction in these consolidated cases—adjacency 

to tributaries, however remote and insubstantial—raises concerns that go beyond the 

holding of Riverside Bayview; and so the Corps’ assertion of jurisdiction cannot rest on 

that case.” Id. at 780 (emphasis added). Instead, Justice Kennedy suggested that the 

Corps assert jurisdiction over adjacent wetlands by identifying “categories of tributaries 

that, due to their volume of flow (either annually or on average), their proximity to 

navigable waters, or other relevant considerations, are significant enough that wetlands 

adjacent to them are likely, in the majority of cases, to perform important functions for an 

aquatic system incorporating navigable waters.’’ Id. at 780–81. This language recognizes 

that some tributaries in fact are not jurisdictional and wetlands adjacent to such tributaries 

do not have a significant nexus. Under the proposed rule, however, there is no such thing 

as an insignificant tributary, waters not just wetlands can be jurisdictional based on 

adjacency, and adjacency encompasses entire floodplains and riparian areas. The 

approach taken in the proposed rule thus fails the tests established under both the 

plurality and the Kennedy opinions. Instead, it embraces the rationale of the dissent, 

which would allow jurisdiction to be established based exclusively on biological 

connections.106 According to the plurality: “The dissent’s exclusive focus on ecological 

factors, combined with its total deference to the Corps’ ecological judgments, would 

permit the Corps to regulate the entire country as ‘waters of the United States.’” 547 U.S. 

at 749 (plurality opinion). Combining the use of biological connections with aggregate 

 

106

 79 Fed. Reg. at 22229 (“Waters and wetlands located in both riparian areas and floodplains support the 

biological integrity of downstream (a)(1) through (a)(3) waters in a variety of ways. They provide habitat for aquatic 

and water tolerant plants, invertebrates, and vertebrates, and provide feeding, refuge, and breeding areas for 

invertebrates and fish. Seeds, plants, and animals move between waters in the riparian zone and floodplains and the 

adjacent streams, and from there colonize or utilize downstream waters, including traditional navigable waters.”). 

Relying in part on the connections endorsed by the Rapanos dissent, the agencies conclude that: “Adjacent waters, 

including adjacent wetlands, alone or in combination with other adjacent waters in the watershed, have a substantial 

impact on the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the 

territorial seas.” 79 Fed. Reg. at 22236.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

93

effects, the agencies conclude that all “adjacent waters” are jurisdictional.107 This 

expansion in jurisdiction related to adjacent waters also is not supported under either the 

plurality or the Kennedy opinion. (p. 34-35)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is based on 

the agencies’ careful examination of the science and the law to make a 

determination of significant nexus for covered adjacent water. Preamble, III and IV 

and Technical Support Document, I.C. and VIII. 

10.127 The Proposed regulation of other waters is overbroad. In SWANCC, the Supreme Court 

invalidated the assertion of federal jurisdiction based on use of water by migratory birds 

and endangered species. None of the opinions in Rapanos purported to overturn 

SWANCC. However, the proposed rule goes far beyond the invalid Migratory Bird Rule. 

As discussed below, studies of both aquatic and terrestrial species as well as resident and 

migratory birds were used to make support the agencies’ determination that all tributaries 

and all adjacent waters are subject to federal jurisdiction. The only deference the agencies 

have given to SWANCC is preamble language saying that, to establish jurisdiction over 

“other waters” on a case-by-case basis, the agencies will not rely on use of water by nonaquatic species or migratory birds.”108 However, this leaves the agencies free to use 

migration of aquatic species including insects as a foundation for jurisdiction over other 

waters, no matter how remote. This is another example of the very significant expansion 

of federal authority without support from the statute or any opinion in Rapanos and 

directly contrary to prior direction from the Supreme Court in SWANCC.

109 (p. 35-36)

Agency Response: The rule provides that for a limited categories of waters the 

agencies may make a case-specific significant nexus determination when such a 

water performs a function, including provision of life cycle dependent aquatic 

habitat for species located in specified waters. EPA’s inclusion of such a function in 

the case-specific significant nexus determination is based on the agencies’ careful 

examination of the science and the law. Preamble, III and IV and Technical 

Support Document, I.C. and II. For those limited waters for which the agencies will 

perform a case-specific significant nexus analysis, there is no authorization for 

considering migratory birds in the rule and the preamble is explicit that non-aquatic

migratory species are not relevant considerations. Under the significant nexus 

standard it is necessary and appropriate to assess whether waters significantly affect 

the biological integrity of traditional navigable waters, interstate waters, or the 

 

107

 79 Fed. Reg. at 22236 (“Adjacent waters, including adjacent wetlands, alone or in combination with other 

adjacent waters in the watershed, have a substantial impact on the chemical, physical, or biological integrity of 

traditional navigable waters, interstate waters, and the territorial seas.”).

108

 79 Fed. Reg. at 22214 (“Evidence of biological connectivity and the effect on waters can be found by 

identifying: resident aquatic or semiaquatic species present in the ‘‘other water’’ and the tributary system (e.g., 

amphibians, aquatic and semi-aquatic reptiles, aquatic birds).... Non-aquatic species or species such as non-resident 

migratory birds that are not demonstrating a life cycle dependency on the identified aquatic resources are not 

evidence of biological connectivity for purposes of this rule.”).

109

 See 547 U.S. at 741 (noting that “SWANCC rejected the notion that the ecological considerations upon which 

the Corps relied in Riverside Bayview- and upon which the dissent repeatedly relies today, see post, at 10-11, 12, 13-

14, 15, 18-19, 21-22, 24-25- provided an independent basis for including entities like wetlands (or ephemeral 

streams) within the phrase the waters of the United States.”) (plurality opinion) (emphasis in original).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

94

territorial seas and the agencies' assessment of biological data and information was 

based on any effects on biological integrity. Preamble, III and IV and Technical 

Support Document, I.C. and VII. 

10.128 The Proposed Rule is not supported by the record is not the result of reasoned decisionmaking. Under the CWA, EPA and the Corps can regulate only waters where a discharge 

will both have an impact on interstate commerce and pollute navigable waters. As 

interpreted by the Supreme Court in Rapanos, EPA and the Corps can only regulate 

waters that are both relatively permanent waters and have a significant nexus to navigable 

waters. However, the record created by the agencies does not demonstrate that the nonnavigable waters covered by the proposed rule meets either Rapanos test or must be 

regulated to protect the quality of navigable water. Instead, the agencies rely on a Draft 

Connectivity Report summarizing studies of connections that are not relevant to CWA 

jurisdiction.110 The record thus created by the agencies would not only read “navigable” 

out of the statute, it also in contravention of the SWANCC decision would turn the CWA 

from a specific grant of authority to protect the quality of navigable waters to an omnibus 

grant of authority to regulate land and water resources for the benefit of flora and fauna. 

No reading of the Act or Supreme Court case law supports this interpretation. (p. 36)

Agency Response: The rule and its supporting documentation demonstrate that 

agencies are asserting jurisdiction over traditional navigable waters, interstate 

waters and the territorial seas, and those waters that have a significant nexus after 

careful examination of the science and the law and consistent with decisions of the 

Supreme Court. Technical Support Document, I-IX and Preamble, III and IV. 

10.129 If the officials charged with establishing the position of the agencies regarding the scope 

of federal jurisdiction under the CWA do not fully understand important provisions of the 

proposed rule, the rule cannot be said to be the result of reasoned decision-making and 

therefore is invalid. See Motor Vehicle Manufacturers Ass’n v. State Farm Ins., 463 U.S. 

29, 42 (1983) (an agency must provide adequate basis and explanation for its decision or 

it will be set aside as arbitrary and capricious). This concern further supports the 

recommendation below that the agencies withdraw the rule and develop a new proposal.

(p. 56)

Agency Response: The Supreme Court has stated that the term “waters of the

United States” is ambiguous in some respects. The agencies have promulgated a 

rule consistent with the notice and comment requirements of the Administrative 

Procedure Act. The rule and its supporting documentation demonstrate that 

agencies are asserting jurisdiction over traditional navigable waters, interstate 

waters and the territorial seas, and those waters that have a significant nexus after 

careful examination of the science and the law and consistent with decisions of the 

Supreme Court. Technical Support Document, I-IX and Preamble, III and IV. 

10.130 The failure to define or limit essential terms render the Proposed Rule 

impermissibly vague. Under the proposed rule, the extent of federal control has been 

 

110

 See Draft Connectivity Report. Although this report is still a draft, it forms the basis for the agencies’ claim that 

all the waters covered by the proposed rule are subject to federal regulation. See 79 Fed Reg. at 22222-52.

(Appendix A of the preamble to the proposed rule).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

95

and would be decided by the regulators themselves, using their “best professional 

judgment.” EPA and the Corps get to decide what part of the landscape is considered 

“land” and what is considered “water.” They get to decide what part of the landscape is in 

the flood plain. They get to decide whether run off from rainfall is a “tributary” or “other 

waters” or simply rain. They get to decide if insects, birds or animals move around, 

establishing a “significant nexus” between waters. 

This extreme degree of discretion invalidates the proposed rule. A rule that is so vague 

that it fails to constrain regulatory decision-making, is arbitrary and capricious, an abuse 

of agency discretion, and otherwise a violation of law. Atlas Copco, Inc. v. 

Environmental Protection Agency, 642 F.2d 458, 465 (D.C. Cir. 1979) (“We are well 

aware of the judicial disdain traditionally accorded standardless regulations.”); South

Terminal Corp. v. EPA, 504 F.2d 646, 670 (1st Cir. 1974) (“The prospective applicant for 

a permit is utterly without guidance as to what he must prove, and how. And the standard 

is so vague that it invites arbitrary and unequal application.”). (p. 56)

Agency Response: The rule is not vague and meets Constitutional due process 

requirements. Technical Support Document, I.C. The final rule and the preamble 

provide definitions and clarifications of the key terms that demarcate the 

boundaries of CWA jurisdiction and provide for increased clarity, certainty and 

consistent implementation. Preamble, IV, Technical Support Document, I.C., and 

General Compendium.

10.131 VI. The Expansion and Ambiguity in the Proposed Rule Will Significantly 

Increase Litigation and the Burden on the Regulated Community and the 

Regulators. 

A. Increased Litigation. 

The lack of clarity discussed above places EPA and the Corps of Engineers, and activists 

who file citizen suits, in the position of deciding what economic activity is regulated and 

what is not. The proposed rule has already engendered citizen suits alleging connections to 

navigable water of the type proposed in the rule.111 If the proposed rule is finalized, even 

more litigation can be expected. For example, currently only adjacent wetlands are regulated. 

So, standing water in a field is not jurisdictional if it is not a wetland. In a recent letter, a 

citizen group is asking EPA to regulate such standing water, alleging that the soil exhibits 

wetland characteristics, despite a contrary determination by the Corps of Engineers. If the 

 

111

 Galveston Baykeeper, Inc., v. Trendmaker Homes, Inc., (Case No. 4:14-cv-01500 (S.D. Tex, May 30, 2014) 

(alleging that a prairie pothole is jurisdictional based on an allegation that the wetlands have unidirectional, and 

possibly bidirectional, hydrologic and biologic exchanges with waters of the United States, provide water storage 

function, and have biological connectivity with waters of the United States (a) through the movement of amphibians, 

aquatic seeds, macroinvertebrates, reptiles and mammals); Wildearth Guardians v. The Western Sugar Cooperative,, 

(Case 1:14-cv-01503-BNB) (D. Colo., May 29, 2014) (alleging on-site wastewater ponds are point sources that 

discharge to waters of the U.S. through groundwater that has a significant biological, chemical and physical nexus to 

the South Platte River).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

96

proposed rule is finalized, the soil characteristics will no longer be relevant and the citizen 

group can try to force regulation of a field with standing water based on adjacency.112 (p. 57)

Agency Response: The rule provides increased certainty and is consistent with 

caselaw. Preamble, IV, and Technical Support Document, I.C. Questions about the 

jurisdictional status of specific waters, and any related permitting requirements, 

should be addressed to permitting authorities.

Landmark Legal Foundation (Doc. #15364)

10.132 Usurping congressional authority by rewriting existing statutory authority, the proposal is 

an affront to the Constitution's Separation of Powers Doctrine and conflicts with the US 

Supreme Court's recent ruling in Utility Air Regulatory Group v. EPA. (p. 1)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C.

10.133 Article I of the Constitution's delegation of congressional power to regulate "interstate 

commerce" does not permit the type of regulation proposed. (p.1)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C.

Western States Land Commissioners Association (Doc. #19453)

10.134 Whereas, the proposed rule seeks to expand federal jurisdiction over wholly intrastate 

water bodies, wetlands, intermittently wet features, and all tributaries, regardless of their 

size, function, amount, and regularity of flow and relationship to traditional navigable 

waters, in contravention of Supreme Court precedent and the current scope of federal 

authority under the Clean Water Act (p. 3)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C.

10.135 WSLCA calls upon the EPA to respect the limits of Supreme Court precedent and the 

scope of federal authority under the Clean Water Act, and to refrain from any efforts to 

extend regulatory jurisdiction to reach tributaries, waterways, wetlands, and other water 

bodies and systems that lack a significant nexus to navigable waters as traditionally 

understood. (p. 4) 

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C.

Southpace Properties, Inc. (Doc. #6989.1)

10.136 The proposed regulation broadens the scope of CWA jurisdiction beyond statutory and 

constitutional limits established by Congress and affirmed by the Supreme Court. 

Southpace is concerned that the proposed rule’s categories of “waters of the U.S.” and 

 

112

 See Public Employees for Environmental Responsibility letter dated August 20, 2014, to EPA Region 3, 

“Petition for Review of “Camp Property” Wetlands Delineated by the Corps of Engineers, Norfolk District 

Regulatory Office (attached).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

97

associated definitions are overbroad and ambiguous, suffer from a variety of legal 

infirmities, and are not supported by the science. (p. 1)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. The 

rule and its supporting documentation demonstrate that agencies are asserting 

jurisdiction over traditional navigable waters, interstate waters and the territorial 

seas, and those waters that have a significant nexus after careful examination of the 

science and the law. Technical Support Document, I-IX and Preamble, III and IV. 

Kolter Land Partners and Manatee-Sarasota Building Industry Association (Doc. #7938.1)

10.137 The Clean Water Act was enacted as a means for Congress to exercise its traditional 

commerce power over navigation. The proposal's attempt to expand the CW A's reach to 

isolated, non-navigable waters, among others, is a far cry from the navigable waters the 

statute intended to cover. 

In both Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 

(SWANCC), and Rapanos v. United States & Carabell v. United States (Rapanos), the 

Supreme Court made it clear that there are limits to federal authority under the CW A. By 

proposing to expand coverage to include areas that are rarely wet or exhibit 

characteristics of regular flooding or flow, the Agencies are plainly ignoring these limits 

and Supreme Court precedent. (p. 1-2) 

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C.

Homebuilders Association of Michigan (Doc. #7994)

10.138 The Clean Water Act was enacted as a means for Congress to exercise its traditional 

commerce power over navigation. The proposal's attempt to expand the CWA's reach to 

isolated, non-navigable waters, among others, is a far cry from the navigable waters the

statute intended to cover. 

The Agencies have erroneously stated, "This proposed rule is narrower than that 

under the existing regulations...fewer waters will be subject to the CW A under 

the proposed rule than are subject to regulation under the existing regulations." 

On this flawed basis the agencies concluded, "This action will not affect small 

entities to a greater degree than the existing regulations." 

The "existing regulations" that the agencies refer to in this reasoning is the 1986 rule 

defining the scope of waters of the United States. Compared to the 1986 definition, the 

proposed changes represent a narrowing of coverage. However, in the economic analysis 

accompanying the rule, the agencies assess the regulation vis-a-vis current practice and 

determine that the rule increases the CWA's jurisdiction by approximately 3 percent. 

Thus, the agencies' certification and economic analysis contradict each other. 

Additionally, the proper baseline from which to assess the rule's impact is current 

practice. The 1986 regulation has been abrogated by several Supreme Court cases and is 

no longer in use. The Corps and EPA also issued a guidance document in 2008 which 

sought to bring jurisdictional determinations in line with these Supreme Court cases. The 

1986 regulation does not represent the current method for determining jurisdiction and 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

98

has not served that purpose for more than thirteen years. Using an obsolete baseline 

improperly diminishes the effects of this rule. (p. 2) 

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute, caselaw and the Constitution. Technical Support 

Document, I.A., B., and C.

10.139 At a 2011 meeting with Margaret "Meg" Gaffney-Smith, Chief Regulatory Program, U.S. 

Army Corps of Engineers, and David Evans, Director, Wetland Programs, U.S. 

Environmental Protection Agency on the new rules, Lee Schwartz, the Executive Vice 

President for Government Relations of the Home Builders Association of Michigan asked 

the two federal representatives if "Under these proposed rules the EPA and Corps could 

regulate any property they wanted?" The response to his question was "Technically, yes 

but we wouldn't do that." Such an admission by representatives of the Agencies indicates 

the unprecedented and unlimited scope of regulatory authority granted under this 

proposed rule.

In both Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 

(SWANCC), and Rapanos v. United States & Carabell v. United States, the Supreme 

Court made it clear that there are limits to federal authority under the CWA. In this 

proposed rule, the Agencies are plainly ignoring these limits and Supreme Court 

precedent. The proposal's ambiguous terms, ill-defined limits, and assertion of federal 

jurisdiction over waters that exhibit little or no connection to traditional navigable waters 

will only create more, not fewer questions. The Agencies' claim that the proposed rule 

creates clarity and certainty is a fallacy because it only does so by illegally asserting 

jurisdiction over every possible wet feature. (p. 3)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute, caselaw and the Constitution. Technical Support 

Document, I.A., B., and C.

Construction Industry Round Table (Doc. #8378)

10.140 Rule-Making Beyond Court Mandate113: The agencies above captioned contend that their 

rule-making is justified if not mandated by U.S. Supreme Court rulings. Interestingly, 

many have interpreted those same cases as being an outgrowth of EPA and the Corps 

“over reaching” under the CWA – thereby requiring the Court to step-in and attempt to 

put some constraints or parameters around the federal agencies activities. Critics have 

contended that the federal agencies have slowly increased the scope of their jurisdiction, 

 

113 The rule-making claims to be proposed “in light of” the U.S. Supreme Court cases in U.S. v. Riverside Bayview; 

Rapanos v. United States; and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 

(SWANCC). [79 Fed. Reg. at 22,188 (April 21, 2014)]
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99

pushing the limit through guidance documents and/or regulatory enforcement actions 

based on ever-broader interpretations of “waters of the U.S.”114

To that end, many would contend that the 2006 Rapanos ruling went against EPA’s 

assertion of jurisdiction, albeit the decision was not clear-cut.115 The justice casting the 

“swing vote” wrote that jurisdiction might exist where there is a “significant nexus” 

between non-navigable water (such as a wetland or small stream) and traditional 

navigable water. BUT Justice Kennedy did not define significant nexus in detail, 

although he did say that “remote and insubstantial” waters that “eventually may flow” 

into navigable waters would not qualify.116 So, it is a stretch at best and an over statement 

at minimum for the EPA and Corps to point to the U.S. Supreme Court cases as they do 

for this rule-making to contend that the decisions mandate/require the extensive allinclusive, wide ranging reinterpretation or definition of “navigable waters” that can easily 

be “exploited” by this proposal. If anything, it would be fairer to contend the Supreme 

Court was seeking a clear, concise, well defined and defensible definition that respected 

the state-federal balance as well as the rights of ordinary citizens. This proposal FAILS in 

all respects to meet such an objective. (p. 3)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute, caselaw and the Constitution. Technical Support 

Document, I.A., B., and C.

DreamTech Homes, Inc. (Doc. #11012)

10.141 The Clean Water Act was enacted as a means for Congress to exercise its traditional 

commerce power over navigation. The proposal's attempt to expand the CW A's reach to 

isolated, non-navigable waters, among others, is a far cry from the navigable waters the 

statute intended to cover. 

In both Solid Waste Agency of Northern Cook County v. US. Army Corps of Engineers

(SWANCC), and Rapanos v. United States & Carabell v. United States (Rapanos), the 

Supreme Court made it clear that there are limits to federal authority under the CWA. By 

 

114 For example, in 1986 EPA and the Corps used the “migratory bird rule” to assert authority over isolated waters 

by saying those waters that are or could be used by migratory birds, which cross state lines, are “waters of the U.S.” 

The regulated community, including agriculture, has pushed back, resulting in Supreme Court decisions clarifying 

and limiting the scope of the agencies’ jurisdiction. In two cases—Solid Waste Agency of Northern Cook County

(SWANCC) v. U.S. Army Corps of Engineers, in 2001, and Rapanos v. United States, in 2006—the Supreme Court 

rendered decisions that reaffirmed the CWA’s limit on federal jurisdiction, reminding the agencies that Congress 

used the word “navigable” for a reason. 

115 Eight justices divided evenly between supporting broad federal jurisdiction over any waters with any connection 

to navigable waters, or a much narrower jurisdiction over waters with relatively permanent flow into navigable 

waters. [Id. at footnote 2]

116 Congress passed the Clean Water Act (CWA) in 1972, with the goal of improving water quality across the nation. 

CWA established a system of federalism that preserves primary state authority over land and water uses, but 

prohibits certain “discharges” into “navigable waters” from a “point source” (i.e., a pipe or other conveyance) unless 

authorized by federal permit. The law says that “navigable waters” are “waters of the U.S.” Over the years, the U.S. 

Supreme Court has established that this includes interstate waters, plus waters that are navigable, wetlands adjacent 

to navigable waters and other waters with a substantial connection to navigable waters. State and local governments 

have jurisdiction over smaller, more-remote waters, such as many ponds and isolated wetlands. [See, Waters of the 

U.S. Proposed Rule; paper at www.gfb.org/ditchtherule/WOTUS_information_toolkit.pdf]
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

100

proposing to expand coverage to include areas that are rarely wet or exhibit 

characteristics of regular flooding or flow, the Agencies are plainly ignoring these limits 

and Supreme Court precedent. (p. 1-2)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute, caselaw and the Constitution. Technical Support 

Document, I.A., B., and C.

Building Industry Association of Washington (Doc. #13622)

10.142 The Supreme Court in its latest rulings has made clear that there are limits to federal 

authority under the CWA. By expanding the CWA to include areas that are rarely wet or 

exhibit characteristics of regular flooding or flow, the EPA is plainly ignoring these limits 

and Supreme Court precedent. The proposal’s ambiguous terms, ill-defined limits, and 

assertion of federal jurisdiction over waters that exhibit little or no connection to 

traditional navigable waters will only create more, not fewer, questions for Courts to 

litigate. Stated another way, the EPA’s definition of navigable waters attempts, through 

inadequate non-peer reviewed science, to conclude that all water is subject to federal 

jurisdiction—and the EPA does so without Congress’ approval in violation of both the 

CWA and the United States Constitution. Because the significant nexus test has become 

“labyrinthine process in which competing scientific opinions opinion are interpreted by 

regulators without clear congressional guidance,” new rules should not “cement this factspecific test into law,” (Bloomberg BNA Daily Environmental Report,Waters of the US, 

Lowell Rothschild, October 16, 2014). New rules in regards to jurisdiction should 

simplify the analysis with the dual goals of creating transparency in the law and reducing 

potential litigation; new rules should not be hastily drafted to ensure more conflicting 

decisions. (p. 3-4)

Agency Response: The rule demarcates the boundaries of CWA jurisdiction and 

provides for increased clarity and certainty. Preamble, II and IV. The consistent 

with the statute, caselaw and the Constitution. Technical Support Document, I.A., 

B., and C. The Science Report is a peer-reviewed review and synthesis of more than 

1,200 publications from the peer-reviewed scientific literature. Science Report, 

Executive Summary.

Pennsy Supply, Inc. (Doc. #15255)

10.143 EPA has indicated this proposed rulemaking is for clarification. However, there is no 

regulatory failure that justifies this proposed rulemaking. In fact, on two separate 

occasions, (SWANCC and Rapanos), the Supreme Court has ruled against this type of 

agency efforts. (p. 1)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C.

Associated General Contractors of America (Doc. #14602)

10.144 At the most fundamental level, the proposal is inconsistent with congressional intent, the 

language of the CWA, and U.S. Supreme Court precedent. Twice the Supreme Court has 

affirmed a limit to federal jurisdiction and rejected, first, the agencies’ broad assertion of 

jurisdiction based on the potential use of isolated waters by migratory birds and, second, 

the agencies’ assertion of jurisdiction based on “any hydrological connection.” Yet, the 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

101

proposed rule defines jurisdiction as broadly as these theories rejected by the Supreme 

Court, and does so to such an extent that the agencies have to specifically exempt 

swimming pools and ornamental ponds from being regulated as a WOTUS. (p. 2-3)

Agency Response: The rule is consistent with the statute and decisions of the 

Supreme Court. Technical Support Document, I.C. 

10.145 The proposed regulation broadens the scope of CWA jurisdiction beyond constitutional 

and statutory limits established by Congress and recognized by the Supreme Court. In 

addition to raising serious legal issues, the proposed rule fails to provide clarity or 

predictability, and raises practical concerns with regard to how the rule will be 

implemented. (p. 19)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Home Builders Association of Mississippi (Doc. #19504)

10.146 Fails to Adhere to Supreme Court Holdings: In both Solid Waste Agency of Northern 

Cook County v. U.S. Army Corps of Engineers (SWANCC,

117 and Rapanos v. United 

States & Carabell v. United States (Rapanos),118 the Supreme Court made it clear that 

there are limits to federal authority under the CWA. By proposing to expand coverage to 

include areas that are rarely wet or exhibit characteristics of regular flooding or flow, the 

Agencies are plainly ignoring these limits and Supreme Court precedent. (p. 5)

Agency Response: The rule is consistent with Supreme Court decisions. 

Technical Support Document, I.C. 

10.147 Impermissibly and Unnecessarily Expands Federal Jurisdiction. Despite the Agencies’ 

claims that this rule is narrower in scope than existing regulations, the proposed rule 

contains changes that will expand federal jurisdiction, triggering substantial and 

additional expensive and time-consuming permitting and regulatory requirements while 

delivering minimal environmental benefit, (p. 2)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute, caselaw and the Constitution. Technical Support 

Document, I.A., B., and C. The agencies have concluded the benefits of the rule 

exceed the costs. Preamble, V and Economic Assessment in the docket. 

Kansas Independent Oil & Gas Association (Doc. #12249)

10.148 In 1985, the Supreme Court of the United States first considered whether the CWA, and 

the regulations promulgated under its authority by USACE, authorizes USACE to require 

landowners to obtain permits from USACE before discharging fill materials into 

wetlands adjacent to navigable bodies of waters and their tributaries. United States v. 

Riverside Bayview Homes, Inc., 474 U.S. 121, 123 (1985). In Riverside Bayview, 

respondent Riverside owned eighty acres of low-lying marshy land in Michigan, and in 

1976, began to place fill material on its property in preparation for the construction of a 

 

117 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001),

118 Rapanos v. United States, 547 U.S. 715 (2006).
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102

housing development. USACE believed that this was an "adjacent wetland" under its 

jurisdiction as a "water of the United States." USACE filed suit seeking to enjoin 

Riverside from filling the property without USACE's permission. 

The Court held that USACE's jurisdiction extended to all wetlands adjacent to navigable 

or interstate waters and their tributaries. Wetlands are lands that "are inundated or 

saturated by surface or ground water at a frequency and duration sufficient to support, 

and that under normal circumstances do support, a prevalence of vegetation typically 

adapted for life in saturated soil conditions. The Court opined that USACE has 

jurisdiction over adjacent wetlands, including those lands on respondent's property. In 

short, the Court has concluded that wetlands adjacent to lakes, rivers, streams, and other 

bodies of water may function as integral parts of the aquatic environment even when the 

moisture creating the wetlands does not find its source in the adjacent bodies of water. 

Again, we cannot say that the Corps' judgment on these matters is unreasonable, and we 

therefore conclude that a definition of "waters of the United States" encompassing all 

wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a 

permissible interpretation of the Act. Because respondent's property is part of a wetland 

that actually abuts on a navigable waterway, respondent was required to have a permit in 

this case. Riverside Bayview established for the first time that wetlands that abut 

navigable waters could themselves be considered navigable waters under the CWA. (p. 6)

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C. 

10.149 Following its decision in Riverside Bayview, the Supreme Court was asked to again

determine USACE's jurisdiction under the CWA. In Solid Waste Agency of N. Cook

Cnty.("SWANCC"), twenty-three suburban Chicago cities and villages engaged in an 

effort to locate and develop a disposal site for nonhazardous solid waste. Solid Waste 

Agency of N. Cook Cnty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 163 (2001).The 

cities and villages decided that a 533- acre parcel of land that was formerly a sand and 

gravel mining operation would be appropriate for the disposal of nonhazardous solid 

waste. Because operation of the disposal site required the filling of permanent and 

seasonal ponds, SWANCC contacted USACE to determine if a permit was required under 

the CWA. USACE initially concluded that it had no jurisdiction over SWANCC because 

the site contained no wetlands or areas that "support vegetation typically adapted for life in

saturated soil conditions." USACE later changed its decision, asserting jurisdiction tinder 

the "Migratory Bird Rule:"

“[T]he Corps formally "determined that the seasonally ponded, abandoned gravel 

mining depressions located on the project site, while not wetlands, did qualify as 

'waters of the United States' . . . based upon the following criteria: (1) the 

proposed site had been abandoned as a gravel mining operation; (2) the water 

areas and spoil piles had developed natural character; and (3) the waters areas are 

used as habitat by migratory bird [sic] which cross state lines."

The Court held that the "Migratory Bird Rule" was not sufficient to establish USACE 

jurisdiction under the CWA. The Court opined:

“We thus decline respondents' invitation to take what they see as the next 

ineluctable step after Riverside Bayview. Homes: holding that isolated ponds, 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

103

some only seasonal, wholly located within two Illinois counties, fall under § 

404(a)'s definition of "navigable waters" because they serve as habitat for 

migratory birds. As counsel for respondents conceded at oral argument, such a 

ruling would assume that "the use of the word navigable in the statute . . . does 

not have any independent significance." Tr. of Oral Arg. 28. We cannot agree that 

Congress' separate definitional use of the phrase "waters of the United States" 

constitutes a basis for reading the term "navigable waters" out of the statute. We 

said in Riverside Bayview Homes that the word "navigable" in the statute was of 

"limited import," 474 U.S. at 133, and went on to hold that § 404(a) extended to 

nonnavigable wetlands adjacent to open waters. But it is one thing to give a word 

limited effect and quite another to give it no effect whatever. The term 

"navigable" has at least the import of showing us what Congress had in mind as 

its authority for enacting the CWA: its traditional jurisdiction over waters that 

were or had been navigable in fact or which could reasonably be so made.”

The use of the phrase "significant nexus" appeared in SWANCC for the first time. The 

Court held:

“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 the authority of the Corps to 

regulate discharges of fill material into wetlands that are not adjacent to bodies of 

open water . . . ." Although the Court in SWANCC did not elaborate as to what 

constitutes a "significant nexus," the phrase becomes an important component in a 

later decision, Rapanos v. U.S., and in the agencies' proposed rule for the 

definition of "waters of the United States." (p. 6-7)

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C. 

10.150 In 2006, the Supreme Court issued, Rapanos v. U.S., the most recent decision interpreting

USACE's jurisdiction under the CWA. This decision, however, only muddied the waters, 

as it was a plurality decision, with the Court splitting 4-1-4. Justice Anthony Kennedy 

joined the Court only in its decision to remand the cases to the Sixth Circuit for further 

proceedings. The result from Rapanos is the emergence of two different standards that 

could be controlling: Justice Scalia's, The Chief Justice's, Justice Thomas's, and Justice 

Alito's plurality standard ("plurality"), and Justice Kennedy's "significant nexus" 

standard."

In Rapanos, petitioner backfilled land that contained sometimes-saturated soil conditions.

Rapanos v.U.S., 547 U.S. 715, 720 (2006). "The nearest body of navigable water was 

eleven to twenty miles away" from the saturated lands, yet petitioner was informed by 

USACE that his saturated lands were "waters of the United States," and he would need a 

permit to fill said lands. The Supreme Court granted certiorari in order to determine if 

USACE had jurisdiction over the petitioner's saturated lands.

The plurality standard- The plurality in Rapanos held that channels through which water 

flows intermittently or ephemerally, or those channels that periodically allow drainage of 

rainfall, are not "waters of the United States:
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

104

“In sum, on its only plausible interpretation, the phrase, "waters of the United 

States" includes only those relatively permanent, standing or continuously 

flowing bodies of water "forming geographic features" that are described in 

ordinary parlance as "streams . . . oceans, rivers, and lakes." See Webster's 

Second 2882. The phrase does not include channels through which water flows 

intermittently or ephemerally, or channels that periodically provide drainage for 

rainfall. The Corps' expansive interpretation of the "waters of the United States" is 

thus not "based on a permissible construction of the statute."

The plurality next considered whether a wetland may be considered "adjacent to" remote

"waters of the United States," because of mere hydrologic connection to them:

“[O]nly those wetlands with a continuous surface connection to bodies that are 

"waters of the United States" in their own right, so that there is no clear 

demarcation between "waters" and wetlands, are "adjacent to" such waters and 

covered by the Act. Wetlands with only an intermittent, physically remote 

hydrologic connection to "waters of the United States" do not implicate the 

boundary-drawing problem of Riverside Bayview, and thus lack the necessary 

connection to covered waters that we described as a "significant nexus" in

SWANCC.

The "significant nexus" that the plurality alludes to from SWANCC is the standard 

advanced by Justice Kennedy in his concurring opinion, and which appears to be the 

standard the EPA and USACE attempt to adopt in the "other waters" category proposed 

in the new definition of "waters of the United States." (p. 8-9)

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C. 

The Mosaic Company (Doc. #14640)

10.151 A federal agency may not enact a regulation with a retroactive effect unless Congress 

conveys that authority in express terms. Bowen v. Georgetown Univ. Hosp., 488 U.S. 

204, 208 (1988). Some courts have held that an administrative rule is retroactive if it 

"takes away or impairs vested rights acquired under existing law, or creates a new 

obligation, imposes a new duty, or attaches a new disability in respect to transactions or 

considerations already past." National Mining Ass'n v. U.S. Dep't of Interior, 177 F.3d 1 

(D.C. Cir. 1999); Assoc. of Accredited Cosmetology Schs. v. Alexander, 979 F.2d 859,864 

(D.C. Cir. 1992). The proposed rule would change the standards for defining the reach of 

CWA jurisdiction. To avoid unlawful retroactive application and to foreclose a point of 

entry in the event of project opponents, the agencies should clarify that previously issued 

JDs and CWA permits will not be reopened to reconsider jurisdiction under the new 

standards. (p. 4)

Agency Response: This rule is effective on 60 days after publication in Federal 

Register. Under existing Corps’ regulations and guidance, Corps’ approved 

jurisdictional determinations generally are valid for five years. The preamble 

makes clear that the agencies will not reopen existing approved jurisdictional 

determinations unless requested to do so by the applicant. All jurisdictional 

determinations made after the effective date will be made consistent with this rule. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

105

10.152 The Court's Marks decision requires identifying a single holding from Rapanos that 

reconciles the two opinions to find their common ground. Under Marks v. United States, 

"When a fragmented Court decides a case and no single rationale explaining the result 

enjoys the assent of five Justices, the holding of the Court may be viewed as that position 

taken by those Members who concurred in the judgment on the narrowest grounds." 430 

U.S. 188, 193 (1977) (internal quotations omitted). The Marks Court's reference to "the 

holding" and "that position" taken by the concurring Justices reinforces the principle that 

a plurality decision, like all other Supreme Court decisions, must be read to produce a 

single holding on the point of law at issue in the case. 

Supreme Court precedent and basic common law principles require that the agencies 

identify a "single" common holding from Rapanos. That holding is the readily 

identifiable common logic of the plurality and Justice Kennedy that was "necessary" and 

"pivotal" to the decision in the case.119 The judgment of the Rapanos Court, announced 

by Justice Scalia and with which Justice Kennedy concurred, was to "vacate the 

judgments" against Rapanos and Carabell, and remand for further proceedings. The 

plurality opinion and Justice Kennedy's opinion rejected the Corps's assertion that the 

CWA regulates any non-navigable water that has "any hydrological connection" to 

navigable waters. Rapanos, which was decided by a plurality of four Justices and a 

separate concurring Justice, provided a common framework and several limiting 

principles that determine the agencies' jurisdiction under the CWA. This is the holding 

the agencies should follow in any rulemaking to define CWA jurisdiction. 

The agencies cannot rely solely on Justice Kennedy's significant nexus standard as the 

governing holding of Rapanos. Throughout the proposed rule, the agencies rely only on 

their interpretation of Justice Kennedy's "significant nexus" standard. This approach 

ignores the limits on CWA jurisdiction that Justice Kennedy and the plurality agreed 

upon, and disregards the plurality's "relatively permanent waters" or "continuous surface 

connection" standards. Additionally, the proposed rule completely reverses the agencies' 

previous interpretations. In both the 2008 Guidance and the Draft 2011 Guidance, the 

agencies found jurisdiction if either the plurality's or Justice Kennedy's standards were

satisfied. But even this "either/or" approach is not true to Marks.

120 Now, the without 

explanation why the significant nexus test should be treated as controlling.121

The agencies cannot selectively choose which Supreme Court opinion to rely on. Marks

precludes reading Rapanos in a manner that produces multiple and potentially 

 

119 See Black's Law Dictionary 749 (8th ed. 2004) (defining "holding" as "a court's determination of a matter of law 

pivotal to its decision"); see also United States v. Garcia, 413 F.3d 201, 232 n. 2 (2d Cir. 2005) (Calabresi, J., 

concurring) (defining a holding as "what is necessary to a decision"). 

120 Interpreting Rapanos as supporting jurisdiction if either the plurality or Justice Kennedy's test is satisfied results 

in the Supreme Court's decision being interpreted as having two inconsistent holdings. Marks cannot be interpreted 

as allowing cases such as Rapanos to have multiple holdings, as evidenced by its use of the phrases "the holding" 

and "that position."

121 The preamble does not explain why the agencies are relying solely on Justice Kennedy's standard. They do not 

claim that the significant nexus standard is the "narrowest" ground from Rapanos or that they are following the 

reasoning of any particular circuit court decisions. Rather, without explanation, the agencies create a new 

jurisdictional standard without relying on or abiding by the Rapanos plurality opinion. This is hardly reasoned 

decision making.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

106

inconsistent holdings and instead seeks a single holding reconciling the views of the 

Members of the Court who concurred in the judgment. See Marks, 430 U.S. at 193. The 

four-Justice Rapanos plurality rejected the "significant nexus" test. Rapanos, 547 U.S. at 

755. It is contrary to judicial law to select one concurring opinion as the single "winner" 

when a majority of the Court has explicitly or implicitly rejected that opinion's approach. 

Under Marks and common law practices, the agencies cannot ignore the plurality and 

treat Justice Kennedy's opinion as the sole controlling holding of Rapanos. 

Nor can the agencies rely on dissenting Justices to support the proposed rule's adoption of 

only Justice Kennedy's significant nexus standard. The preamble notes that the four 

dissenting Justices in Rapanos would have upheld CWA jurisdiction for "all tributaries 

and wetlands that satisfy either the plurality's standard or that of Justice Kennedy." 79 

Fed. Reg. at 22,192. The opinions of the dissenting Justices, however, are irrelevant. 

Only those opinions that "concur in the judgments" count toward determining the 

"holding of the Court."122 The dissenting Justices did not concur in the judgment and, 

therefore, the agencies cannot head-count across all of the opinions to come up with a 

majority. 

Rather, as directed by Marks, the agencies must find a single holding based on the 

common elements of the plurality's and Justice Kennedy's opinions. Although finding the 

common ground between the plurality and concurring opinions is more complicated than 

adopting wholesale one opinion or the other, this is what Marks requires.123 Chief Justice 

Roberts recognized that it would be complicated to apply the holding of Rapanos, noting 

that "[l]ower courts and regulated entities will now have to feel their way on a case-bycase basis." Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring). (p. 6-8)

 

122 See United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007) ("Dissenters, by definition, have not joined 

the Court's decision ... Marks does not direct lower courts interpreting fractured Supreme Court decisions to 

consider the positions of those who dissented . . . It would be inconsistent with Marks to allow the dissenting 

Rapanos Justices to carry the day."); King v. Palmer, 950 F.2d 771, 783 (D.C. Cir. 1991) ("[W]e do not think we are 

free to combine a dissent with a concurrence to form a Marks majority.").

123 Indeed, this is likely why the Circuit Courts of Appeals are not uniform as to the controlling standard for "waters 

of the United States" under Rapanos. The crux of the circuit split is how one defines "narrower." In Memoirs v. 

Massachusetts, 383 U.S. 413 (1966), the case interpreted by the Marks Court, the narrowest judgment is clear 

because it is a subset of the other two positions. In Memoirs, a plurality found that a particular book was not 

obscene. Id. at 424. Two concurring Justices also found the book was not obscene, but would have gone further 

regarding absolute First Amendment protections. Id. Thus, Marks held that the plurality opinion was based on the 

narrowest grounds and therefore constituted the holding of the Court and provided the governing standard. Marks, 

430 U.S. at 194. Identifying the narrowest reasoning is not as straightforward with Rapanos because the two 

opinions do not create a nice, clear subset of jurisdictional waters-the concurring rationales do not fit within each 

other like Russian dolls. See United States v. Johnson, 467 F.3d 56, 64 (1st Cir. 2006); Joseph M. Cacace, Plurality 

Decisions in the Supreme Court of the United States: A Reexamination of the Marks Doctrine After Rapanos v. 

United States, 41 Suffolk U. L. Rev. 97, 98 (2007). Instead the plurality's and Justice Kennedy's opinions overlap in 

some cases and would lead to opposite results in other cases. Some courts argue that Justice Kennedy's is the 

narrower decision because it reins in federal authority less (e.g., United States v. Gerke Excavating, Inc., 464 F.3d 

723 (7th Cir. 2006)) while others suggest that the plurality could be the narrower decision because it is most 

restrictive of government authority and avoids the expansion of the Commerce Clause (e.g., Johnson, 467 F.3d at 

63). These circuit courts miss the mark, however. Marks does not require that we determine which opinion is 

narrowest. It requires determining the narrowest "position" taken by those members who concurred in the 

judgments. Marks, 430 U.S. at 193. Because the legal standards set by the two opinions create overlapping universes 

of jurisdictional waters, there is a clear narrow judgment that received the "assent of five Justices" in Rapanos. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

107

Agency Response: The foundation of the rule is the significant nexus standards 

established by the Supreme Court in SWANCC and refined in Justice Kennedy’s 

opinion in Rapanos. All nine of the United States Courts of Appeals to have 

considered the issue have stated that Justice Kennedy’s significant standard may be 

used to establish applicability of the CWA. The rule is consistent with caselaw. 

Technical Support Document, I.C.

10.153 The single holding of Rapanos is the restriction of CWA jurisdiction based on limiting 

principles articulated by both the plurality and Justice Kennedy. The single holding from 

Rapanos is the plurality's and the concurrence's common reasoning on the boundaries of 

CWA jurisdiction. Although the plurality and Justice Kennedy did not agree on the 

specific tests for CWA jurisdiction, both found that the Corps had gone too far in its "any 

connection" theory, and both articulated principles that were intended to limit CWA 

jurisdiction. 

Both the plurality and Justice Kennedy opinions start from a common understanding of 

traditional navigable waters (TNWs)-i.e., the waters that were subject to regulation under 

the Rivers and Harbors Act (RHA) prior to the passage of the CW A. See Rapanos, 547 

U.S. at 731 (plurality), 767 (Kennedy, J., concurring). Both further agreed that "Congress 

intended to regulate at least some waters that are not navigable in the traditional sense," 

id. at 767 (Kennedy, J., concurring), 731 (plurality), but that "the qualifier 'navigable' is 

not devoid of significance," id. at 731 (plurality), and must be given "some meaning," id. 

at 779 (Kennedy, J., concurring). 

With respect to tributaries, both opinions would allow jurisdiction over certain tributaries 

that are not navigable-in-fact, but both the plurality and Justice Kennedy were concerned 

about far-reaching jurisdiction over features distant from navigable waters and carrying 

only minor volumes of flow. Justice Kennedy criticized the "existing standard" which 

"deems a water a tributary if it feeds into a traditional navigable water (or a tributary 

thereof) and possesses an ordinary high water mark" because it "leave[s] wide room for 

regulation of drains, ditches, and streams remote from any navigable-in-fact water and 

carrying only minor volumes toward it." See id. at 781 (Kennedy, J., concurring). 

Similarly, the plurality criticized extension of jurisdiction to "ephemeral streams, wet 

meadows, storm sewers and culverts, directional sheet flow during storm events, drain 

tiles, man-made drainage ditches, and dry arroyos in the middle of the desert." Id. at 734 

(plurality). Although Justice Kennedy did not agree with the plurality's relatively 

permanent waters standard for tributaries, both opinions agreed that the Corps had gone 

too far in its assertion of jurisdiction over tributaries and that "mere adjacency to a 

tributary" is insufficient. Id. at 786 (Kennedy, J., concurring). 

With respect to wetlands, both opinions require the agencies to demonstrate a meaningful 

relationship between non-abutting wetlands and TNW s for those nonabutting wetlands to 

be jurisdictional. Both the plurality and Justice Kennedy agreed that a mere hydrological 

connection between a wetland and a TNW is not sufficient to establish jurisdiction. See 

id. at 732 (plurality), 784 (Kennedy, J., concurring). Beyond this starting point, the 

plurality found that only wetlands with "a continuous surface connection" to waters of the 

United States, which make it "difficult to determine where the 'water' ends and the 

'wetland' begins," are covered by the Act. Id. at 742. Justice Kennedy would require that 

there be a "significant nexus" such that wetlands "significantly affect the chemical, 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

108

physical and biological integrity of other covered waters more readily understood as 

'navigable."' Id. at 780. Wetlands with "speculative or insubstantial" effects on water 

quality do not satisfy this standard. Id. The plurality found Justice Kennedy's standard 

also would require a continuous surface connection. Again, although the opinions did not 

agree on a list of detailed standards for tributaries and wetlands, the combined impact of 

these limiting principles is that the agencies must demonstrate that wetlands have a 

significant relationship with TNWs to be jurisdictional. 

Under Marks and basic common law principles, the agencies are obligated to develop a 

"single holding" from Rapanos that the agencies would then be legally bound to follow.

The proposed rule should deem waters jurisdictional only where they satisfy both the 

Rapanos plurality's and Justice Kennedy's tests. In light of Marks, only those waters that 

would be jurisdictional under elements common to both the plurality and Kennedy 

opinions are jurisdictional under Rapanos. To implement the holding of the Rapanos

Court, only those waters that would meet both the plurality and Kennedy tests are 

jurisdictional; waters that meet only one test are not jurisdictional "waters of the United 

States." The proposed rule does not properly implement Rapanos because it ignores the 

plurality decision and does not require that waters meet both tests to be subject to 

jurisdiction. (p. 8-9)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is not 

based on the “any connection theory” but is instead based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for specified waters and to provide that certain other waters may be jurisdictional 

where a case-specific determination has found a significant nexus. Preamble, III, 

and Technical Support Document, I.B, I.C. and II. All nine of the United States 

Courts of Appeals to have considered “the narrowest grounds” under Marks have 

stated that Justice Kennedy’s significant standard may be used to establish 

applicability of the CWA. The rule is consistent with caselaw. Technical Support 

Document, I.C.

10.154 The Proposed Rule is predicated on the broad theories of jurisdiction rejected by the 

Supreme Court in SWANNC and Rapanos. The agencies have explained that the proposed 

rule is not intended to broaden the historical coverage of the CWA.124 But, the agencies' 

interpretation of "historical coverage" has twice been determined by the Supreme Court 

to be incorrect and overbroad. In SWANCC, the Supreme Court rejected the agencies' 

attempts to assert jurisdiction over an abandoned sand and gravel pit based on the theory 

that the isolated pond was used by migratory birds, i.e., jurisdiction on the basis of the 

Migratory Bird Rule. SWANCC, 531 U.S. at 174. And in Rapanos, five Justices rejected 

the agencies' attempts to assert jurisdiction over wetlands not adjacent to navigable 

waters based on the theory that CWA jurisdiction extends to any nonnavigable water that 

has "any hydrological connection" to navigable waters. Rapanos, 547 U.S. at 729. The 

proposed rule allows for sweeping jurisdiction based on connections as tenuous as the 

Migratory Bird Rule that was rejected in SWANCC, and essentially amounts to the "any 

 

124 See, e.g., EPA, Questions and Answers About Waters of the U.S. (July 2014),

http://www2.epa.gov/si tes/prod ucti on/files/2014-07 /documents/questi o ns_and_answers_about_ wotus_ 0.pdf. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

109

hydrological connection" theory that was rejected in Rapanos. Thus, the assertions that 

the rule is not "changing" anything or "expanding" jurisdiction are without support. 

Further, the preamble to the proposed regulations does not explain the reversal in 

interpreting the Rapanos opinion, or why the 2008 Guidance that has applied the 

Rapanos opinion for years is no longer appropriate. The confusion amongst the regulated 

public is not created by the Supreme Court rulings, but rather by the reversal and 

rejection of the six+ year precedent without scientific explanation. 

With the proposed rule's broadened concept of "tributary," the agencies seek to extend 

CWA jurisdiction to any feature (e.g., ditches, ephemeral drainages, stormwater 

conveyances), wetland, lake, or pond that directly or indirectly contributes flow to 

navigable waters, with no consideration of the volume, duration or frequency of flow or 

proximity to navigable waters. See 79 Fed. Reg. at 22,201. The proposed rule also 

extends jurisdiction to "adjacent waters," which can include any wet feature located in an

undefined floodplain or riparian area, or that has a subsurface hydrologic connection to 

navigable waters. Id. at 22,206. If jurisdiction cannot be asserted under these broad 

"tributary" or "adjacent waters" categories, there is a catch-all "other waters" category 

that would cover isolated waters and wetland...................................................s 

that, when aggregated with all other waters in the entire watershed, have a "more than 

speculative or insubstantial" effect on traditional navigable waters. Id. at 22,211. This 

jurisdiction can be found whether or not any impacts are proposed to these "aggregated" 

waters. Further, under the proposed rule, ditches, groundwater and erosional features (i.e., 

gullies, rills, and swales) can serve as a surface or subsurface hydrological connection 

that would render a feature jurisdictional "adjacent water" or demonstrate that a feature 

has a "significant nexus" and is therefore a jurisdictional "other water." Id. at 22,219. The 

agencies have gone as far to assert that even wetlands or waters with no connection can 

be claimed as jurisdictional, see discussion in Section 4 below. 

Essentially, under this proposed rule, the authority to assert jurisdiction is without limit. It 

will reach features that are "little more related to navigable-in-fact waters than were the 

isolated ponds held to fall beyond the Act's scope in SWANCC." Rapanos, 547 U.S. at 

781-82 (Kennedy, J., concurring). The proposed rule would apply the "waters of the 

United States" definition to a whole host of features that are remote from traditional 

navigable waters and carry minor water volumes, including ephemeral drainages, storm 

sewers and culverts, directional sheet flow during storm events, drain tiles, man-made 

drainage ditches, and arroyos, all of which the Rapanos Court made clear are beyond the 

scope of federal jurisdiction. Id. at 734 (plurality); id. at 781 (Kennedy, J., concurring). 

See also discussion of playa lakes in Section 3.E., below. Once again, the term "waters of 

the United States" "cannot bear this expansive meaning. Id. at 731 (plurality). (p. 10-11)

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

The rule is consistent with caselaw. Technical Support Document, I.C. Consistent 

with Justice Kennedy’s opinion, the rule is not based on the “any connection 

theory” but is instead based on the agencies’ careful examination of the science and 

the law to make a determination of significant nexus for specified waters and to 

provide that certain other waters may be jurisdictional where a case-specific 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

110

determination has found a significant nexus. Preamble, III, and Technical Support 

Document, I.B, I.C. and II. 

American Petroleum Institute Energy (Doc. #15115)

10.155 In interpreting fragmented decisions like Rapanos, the Supreme Court has explained how 

lower courts should determine the case’s controlling legal principles: “When a 

fragmented Court decides a case and no single rationale explaining the result enjoys the 

assent of five Justices, ‘the holding of the Court may be viewed as that position taken by 

those Members who concurred in the judgment on the narrowest grounds...’”125 This 

doctrine is known as the “Marks Rule.” Despite the relevance of the Marks Rule to 

interpreting fragmented opinions like Rapanos, the agencies’ 2014 Proposed Rule and 

preamble do not discuss or even cite to the Marks Rule. The agencies also fail to discuss 

any legal principles applicable to determining the controlling legal rule from fractured 

opinions like Rapanos. Applying the Marks Rule, Justice Kennedy’s concurrence does 

not establish the sole controlling legal standard from Rapanos. Although the 2014 

Proposed Rule does not explain why the agencies believe the significant nexus test is the 

controlling jurisdictional test from Rapanos, it is possible that the agencies believe that 

application of the Marks Rule results in the significant nexus test being the only binding 

jurisdictional test from Rapanos. Applying the Marks Rule to Rapanos, the Seventh and 

Eleventh Circuits have found that Justice Kennedy’s significant nexus test is the only 

controlling 9 2014 jurisdictional test from Rapanos.

126 In U.S. v. Gerke Excavating, the 

Seventh Circuit justified this holding on the basis that the “narrowest ground” in the 

Rapanos decision under the Marks Rule was Justice Kennedy’s significant nexus test. 

The court reasoned that the “narrowest grounds” are those grounds of the decision that 

constrain federal jurisdiction the least.127 The court found that the Kennedy test would 

find more waters to be jurisdictional than would the plurality’s test, and therefore the 

Kennedy test was the narrowest ground for the holding under Marks.

128 The Eleventh 

Circuit in U.S. v. Robison took the same analytical approach.129 The rationale in support 

of those holdings was flawed, however, and the agencies would be arbitrary and 

capricious in relying on them to find that the Kennedy test is the sole and exclusive 

jurisdictional test under Rapanos. The flawed rationale arises from the court’s 

interpretation of Marks’s instruction to find the “narrowest grounds” among the opinions 

in the majority. The operative Marks language was quoted from Gregg v. Georgia, where 

the Court analyzed its prior decision in Furman v. Georgia, 408 U.S. 238 (1972). Furman

addressed the constitutionality of the death penalty applied under a Georgia statute. In a 

fractured opinion, the points of law on which the plurality and concurrence agreed 

happened to be the least restrictive of federal power. So, too, was the result in Memoirs v. 

 

125 Marks v. United States, 430 U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of 

Stewart, Powell, and Stevens, JJ.)).

126 U.S. v. Gerke Excavating, 464 F.3d 723 (7th Cir. 2006); U.S. v. Robison, 505 F.3d 1208 (11th Cir. 2007); see also 

U.S. v. Freedman Farms, Inc., 786 F. Supp. 2d 1016 (E.D.N.C. 2011) (finding only significant nexus test may be 

used)

127 Gerke, 464 F.3d at 724

128 Id.

129 Robison, 505 F.3d at 1219-22.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

111

Massachusetts, which Marks also discussed.130 In Memoirs, six justices of the U.S. 

Supreme Court reversed a lower court decision that found a particular novel obscene and 

therefore not protected by the First Amendment to the U.S. Constitution. Among the six 

justices in the majority, three justices agreed with the lower court’s conclusion that 

obscene materials lack constitutional protection. However, the same justices also found 

that the lower court’s test for obscenity was too strict and articulated a different test to 

determine obscenity. Two other justices concurring in the opinion concluded that the 

First Amendment protects all speech, even obscenity. A sixth justice concurred in the 

judgment on the grounds that all obscenity other than hardcore pornography is 

constitutionally protected. The Marks Court examined these disparate opinions, and 

found that the rule announced by the three justices in the majority constituted the 

“narrowest grounds” of the decision. Even though the First and Seventh circuits have 

cited Marks, Memoirs, and Furman for the proposition that the “narrowest grounds” of a 

fractured opinion are the grounds least restrictive of federal jurisdiction, none of those 

cases ever addressed which opinion was more or less restrictive of federal authority when 

interpreting the phrase “narrowest grounds.” Those cases did not even consider this issue. 

The fact that the “narrowest grounds” from those cases resulted in holdings that are less 

restrictive of government authority is simply incidental. In fact, the “narrowest grounds” 

cannot mean the opinion in the majority that is least restrictive of federal authority. Not 

every case involves the question of federal authority. Even in the cases that do, however, 

one could just as easily imagine a scenario where the “narrowest grounds” among the 

opinions are those that are the most restrictive of federal jurisdiction. By way of example, 

consider a hypothetical 5-4 decision where the Supreme Court upholds a federal statute

that prohibits certain types of commercial speech. Four justices in the plurality uphold the

statute on the basis that it survives intermediate scrutiny. The sole concurring justice and 

fifth vote for the majority upholds the statute on the basis that it survives strict scrutiny. 

The narrowest ground is the concurrence—because every statute that passes strict 

scrutiny also passes intermediate scrutiny, but not vice versa. Yet strict scrutiny is more 

restrictive of government authority than intermediate scrutiny is. Even if, however, a 

decision’s “narrowest grounds” under Marks relates to the scope of federal authority, 

some courts have recognized that the narrowest grounds in Rapanos are those that are the 

most restrictive of government authority: “given the underlying constitutional question

presented by Rapanos, it seems just as plausible to conclude that the narrowest ground of

decision in Rapanos is the ground most restrictive of government authority (the position 

of the plurality)...”

131 Courts have recognized other reasons why the significant nexus 

test cannot be the sole controlling jurisdictional test from Rapanos under the Marks Rule: 

“[I]f Justice Kennedy’s test is the single controlling test (as advocated by the Seventh and 

Ninth Circuits), there would be a bizarre outcome—the court would find no federal 

jurisdiction even though eight Justices (the four members of the plurality and the four 

dissenters)—would all agree that federal authority should extend to such a situation.”132

For example, consider a small wetland that has a continuous surface connection to a 

 

130 Memoirs v. Mass., 383 U.S. 413 (1966).

131 U.S. v. Johnson, 467 F.3d 56, 63 (1st Cir. 2006).

132 Id. at 64.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

112

continuously-flowing but very small tributary that ultimately empties into the Mississippi 

River, 50 miles away. The wetland would likely satisfy the jurisdictional tests articulated 

by the Rapanos plurality and dissents, but would probably fail Justice Kennedy’s 

significant nexus test since the small wetland does not significantly affect the water 

quality of the Mississippi River. It is also possible that the agencies believe that the 

Marks Rule gives the agencies a choice to base jurisdiction under either the plurality’s 

test or Justice Kennedy’s significant nexus test from Rapanos (it is unclear whether this is 

the agencies’ position, since they do not articulate their legal rationale for their Kennedyonly approach to jurisdiction). Some federal circuit courts of appeal have indeed found 

that the agencies may establish jurisdiction on a case-by case basis 19 under either the 

plurality’s test or the Kennedy test.133 Several other federal circuit courts have not 

decided which Rapanos test governs.134 If the agencies believe that the legal principles 

articulated in the cases that allow an “either/or” approach to jurisdiction provide legal 

support for the agencies to choose between the Kennedy test and the plurality test as a 

foundation for this rulemaking, the agencies must say so, and must defend that choice. 

Their failure to do so in the 2014 Proposed Rule is arbitrary and capricious because it 

does not give interested parties an opportunity to comment on that decision. For the 

reasons discussed in the next section of this comment letter, the Marks Rule does not 

support an “either/or” approach to jurisdiction. (p.9-12)

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

The rule is consistent with caselaw. Technical Support Document, I.C.

10.156 Turning back to the Marks analysis, the Marks Rule does not allow courts or agencies to 

pick and choose among plurality and concurring opinions in a fractured decision for the 

rule of law that the court or agency likes best. The 2014 Proposed Rule indicates that the 

agencies are combining the views of the dissenting justices in Rapanos to those in the 

majority in order to determine the controlling rule of law from Rapanos.

135 But dissenting 

opinions are irrelevant under Marks: “the holding is the narrowest position taken by those 

members who concurred in the judgment....”136 Dissenting judges do not, of course, 

concur in the judgment,137 and are not part of the judgment of the court.138 Therefore, 

 

133 The First, Third, and Eighth Circuits have concluded that jurisdiction exists if either Justice Kennedy’s standard 

or the plurality’s standard is met. Johnson, 467 F.3d at 66; U.S. v. Donovan, 661 F.3d 174, 176 (3rd Cir. 2011); U.S. 

v. Bailey, 571 F.3d 791, 798-99 (8th Cir. 2009).

134 The Second, Fourth, Fifth, Sixth, and D.C. Circuits have not decided which Rapanos test governs. See Cordiano

v. Metacon Gun Club, Inc., 575 F.3d 199 (2nd Cir. 2009); Precon Dev. Corp. v. United States Army Corps of Eng’rs, 

633 F.3d 278, 296 (4th Cir. 2011); United States v. Roberts, 830 F. Supp. 2d 372, 379 (M.D. Tenn. 2011); U.S. v. 

Lucas, 516 F.3d 316, 326-27 (5th Cir. 2008); U.S. v. Cundiff, 555 F.3d 200, 210-13 (6th Cir. 2009); King v. Palmer, 

950 F.2d 771, 783 (D.C. Cir. 1991) see also Donovan, 661 F.3d at 182 n. 7 (collecting cases from the Fourth, Fifth, 

Sixth, and Ninth Circuits and noting “[s]everal Circuit Courts of Appeals have expressly reserved the issue of which 

Rapanos test or tests, governs CWA enforcement actions.”). See also Northern California River Watch v. City of 

Healdsburg, 496 F.3d 993, 1001 (9th Cir. 2007) (applying Kennedy’s approach but not ruling out plurality).

135 United States v. Garcia, 413 F.3d 201, 232 n.2 (2d Cir. 2005) (Calabresi, J., concurring)

136 Marks, 430 U.S. at 193.

137 Gibson v. American Cyanamid Co., -- F.3d --, 2014 WL 3643363, at *17 (7th Cir. July 24, 2014); Robison, 505 

F.3d at 1221 (“We are controlled by the decision of the Supreme Court. Dissenters, by definition, have not joined 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

113

under Marks, “the positions of dissenting judges ‘are not counted in trying to discern a 

governing holding from divided opinions.’”139 As the D.C Circuit noted in an en banc 

opinion, courts are not “free to combine a dissent with a concurrence to form a Marks

majority.”140 Some courts have interpreted the Seventh Circuit’s decision in Gerke as 

support for including dissenting opinions in determining the holding of Rapanos under 

Marks. In Gibson v. American Cyanamid Co.,

141 the Seventh Circuit recently revisited its 

earlier decision in Gerke, and flatly rejected the notion of adding in the Rapanos

dissenting opinions in a Marks analysis, noting that any discussion of dissents in Gerke

was dicta and unnecessary to resolving the appeal at issue.142 The assertion of jurisdiction 

if either the plurality test or the significant nexus test is met is an incorrect reading of 

Rapanos for another reason. The adoption of two inconsistent holdings is incorrect under 

Marks, which requires that only the plurality and concurring judges’ opinions be 

considered to form a single holding.143 Moreover, under Article III of the U.S. 

Constitution, federal courts are authorized to interpret the law only to the extent that the 

opinions they issue are tied to a judgment that resolves an actual case or controversy 

under the U.S. Constitution. Dissenting justices have no part in disposing of an actual 

case or controversy, so therefore whatever opinions they express as to the controlling rule 

of law in the case are without effect.144 (p. 14)

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

The rule is consistent with caselaw. Technical Support Document, I.C.

10.157 Finally, allowing dissenting justices to determine the controlling rule of law from the case 

under an “either/or” test that only four justices would endorse ultimately allows a 

nonmajority to establish binding precedent.145 In Rapanos, for example, only the four 

dissenting justices would apply either the Kennedy test or the plurality test. But neither 

the plurality nor Justice Kennedy would apply the other’s test, of course. Four judges—

particularly four dissenting justices—is not a majority. To allow the Rapanos dissent’s 

“either/or” approach to prevail would improperly disregard the express intent of the 

justices in the majority and would result in a legal standard with which the majority of the 

 

the Court’s decision. In our view, Marks does not direct lower courts interpreting fractured Supreme Court decisions 

to consider the positions of those who dissented.”).

138 “Stare decisis does not apply to dissenting opinions.” 18 James Wm. Moore et al., Moore’s Federal Practice 

§134.05[2] (3d ed. 2006).

139 Gibson, 2014 WL 3643363, at *17 (interpreting Marks).

140 King, 950 F.2d at 783; see also Bailey, 571 F.3d at 799; Johnson, 467 F.3d at 62-64; Donovan, 661 F.3d at 181-

82

141 Gibson, 2014 WL 3643363, at *17.

142 Id.

143 United States v. Garcia, 413 F.3d 201, 232 n.2 (2d Cir. 2005) (Calabresi, J., concurring).

144 See Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (Federal courts may not “declare 

principles or rules of law which cannot affect the matter in issue in the case before it”); see also Robison, 505 F.3d at 

1221.

145 Robison, 505 F.3d at 1221
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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Supreme Court would not agree. 146 In United States v. Robison, the Eleventh Circuit 

recognized that “[i]t would be inconsistent with Marks to allow the dissenting Rapanos 

Justices to carry the day and impose an ‘either/or’ test, whereby CWA jurisdiction would 

exist when either Justice Scalia’s test or Justice Kennedy’s test is satisfied.”147 Allowing 

the dissenters to combine with the plurality or the concurring opinion also violates the 

consensus view of the majority of the Justices in Rapanos—that the Corps overstepped 

its jurisdictional authority under the Clean Water Act. A proper application of the Marks

Rule requires that among the opinions in the majority, one opinion be a “logical subset” 

of the other opinions. The controlling rule of law from Rapanos depends, then, on which 

opinion in the majority is a logical subset of the other opinion. Several courts have 

recognized that a judgment’s “narrowest grounds” means that one opinion in the majority 

must be a “logical subset” of another opinion in the majority. The D.C. Circuit has 

interpreted “narrowest grounds” to mean “a common denominator of the Court’s 

reasoning: it must embody a position implicitly approved by at least five Justices who 

support the judgment.”148 In other words, the holding of a fractured opinion can be 

determined under Marks when “the concurrence posits a narrow test to which the 

plurality must necessarily agree as a logical consequence of its own, broader position.”149

Under this framework, one opinion must be a complete subset of the other: Marks is 

workable—one opinion can meaningfully be regarded as ‘narrower’ than another only 

when one opinion is a logical subset of other, broader opinions. In essence, the narrowest 

opinion must represent a common denominator of the Court’s reasoning; it must embody 

a position implicitly approved by at least five Justices who support the judgment.150

Courts routinely hold that Marks does not apply when the plurality or concurring opinion 

is not a logical subset of the other:151 “Marks becomes problematic, however, when ‘one 

opinion supporting the judgment does not fit entirely within a broader circle drawn by the 

others.’”152 In a related context, the D.C. Circuit recognized: When ... one opinion 

supporting the judgment does not fit entirely within situations where the various opinions 

supporting the judgment are mutually exclusive, Marks will turn a single opinion that 

lacks majority support into national law. When eight of nine Justices do not subscribe to a 

given approach to a legal question, it surely cannot be proper to endow that approach 

with controlling force, no matter how persuasive it may be. The [Supreme] Court itself 

does not appear to apply Marks in cases of this type.153 On this basis, the D.C. Circuit has 

held that, in a splintered opinion similar to Rapanos, where eight justices other than the 

concurring justice did not agree with the rationale expressed in the concurring opinion, 

“the concurring opinion is not controlling in this circuit.”154 Instead, the D.C. Circuit 

considers the underlying case to determine “which, if any, of the rationales in [the case] 

 

146 See generally Ryan J. Niehaus, Sustaining A Jurisdictional Quagmire(?): Analysis and Assessment of Clean 

Water Act Jurisdiction in the Third Circuit, 19 J. Envt’l. & Sustainability L. 473, 493 (Spring 2013).

147 Robison, 505 F.3d at 1221.

148 King, 950 F.2d at 781.

149 Id. at 782

150 Id. at 784-85.

151 Id. at 781.

152 Bailey, 571 F.3d at 798 (citing King, 950 F.2d at 782).

153 King, 950 F.2d at 782 (emphasis added); see also United States v. Epps, 707 F.3d 337, 349 (2013).

154 Epps, 707 F.3d at 351
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

115

is persuasive.”155 In Rapanos, neither Justice Kennedy’s concurrence nor the plurality 

opinion is a logical subset of the other.156 In fact, both justices heavily criticized the 

other’s approach.157 There are several examples of waters that may be found 

jurisdictional under the plurality’s test, but not under Kennedy’s test, and vice-versa.158

For example: Justice Kennedy’s test would find jurisdiction over wetlands adjacent to 

navigable waters regardless of a surface connection between the wetland and the 

navigable water, whereas the plurality’s test would find jurisdiction over wetlands that 

have a continuous surface connection to the navigable water. The plurality’s test would 

find jurisdiction over non-navigable tributaries to navigable waters only if such 

tributaries are relatively permanent. Justice Kennedy’s test for jurisdiction has no such 

criterion. Under the agencies’ interpretation of Justice Kennedy’s test as described in the 

2014 Proposed Rule, “other waters” that are geographically remote from navigable 

waters could be deemed jurisdictional if they, together with other nearby waters, have a 

significant nexus to a navigable water. The plurality’s test would not find jurisdiction 

over such waters. A continuously-flowing stream that carries a low volume of water to a 

downstream navigable water may lack a significant nexus with that downstream water, 

and therefore may not be jurisdictional under Kennedy’s test, but would be jurisdictional 

under the plurality’s test because it is a relatively permanent tributary to a navigable 

water.159 Because neither jurisdictional test is a “logical subset” of the other, neither 

opinion standing alone is the exclusive controlling rationale under Marks.

160 (p.15-17)

Agency Response: The Courts of Appeals that have considered this issue have not 

adopted the position that jurisdiction exists only where both the plurality’s and 

Justice Kennedy’s standards are satisfied. Technical Support Document, 1C. All 

nine of the United States Courts of Appeals to have considered “the narrowest 

grounds” under Marks have stated that Justice Kennedy’s significant standard may 

be used to establish applicability of the CWA. The rule is consistent with caselaw. 

Technical Support Document, I.C.

10.158 For the past seven years, the United States has—in permitting decisions, litigation, and in 

official regulatory guidance—interpreted Rapanos to convey jurisdiction when either 

Justice Kennedy’s or Justice Scalia’s test is met.161 Although this interpretation of 

 

155 Id.

156 See, e.g., Bailey, 571 F.3d at 798 (There is “little overlap between the plurality’s and Justice Kennedy’s 

opinions,” and therefore “it is difficult to determine which holding is the narrowest.”); Cundiff, 555 F.3d at 210 

(“[T]here is quite little common ground between Justice Kennedy’s and the plurality’s conceptions of jurisdiction 

under the Act, and both flatly reject the other’s view.”); see also Rapanos, 547 U.S. at 756 (Scalia, J., plurality 

opinion) (“[Justice Kennedy’s] test simply rewrites the statute.”); id. at 778 (Kennedy, J., concurring) (“[T]he 

plurality reads nonexistent requirements into the Act.”).

157 Rapanos, 547 U.S. at 753-54 (Scalia, J., plurality opinion); id. at 768-76 (Kennedy, J., concurring).

158 See, e.g., Johnson, 467 F.3d at 64 (“The cases in which Justice Kennedy would limit federal jurisdiction are not a 

subset of the cases in which the plurality would limit jurisdiction”).

159 Johnson, 467 F.3d at 64; Rapanos, 547 U.S. at 769 (Kennedy, J., concurring) (under plurality’s test, “[t]he merest 

trickle, if continuous, would count as a ‘water’ subject to federal regulation”); see also id. at 776-77.

160 See, e.g., Epps, 707 F.3d at 350; Cundiff, 555 F.3d at 209 (“[w]here no standard put forth in a concurring opinion 

is a logical subset of another concurring opinion (or opinions) that, together, would equal five votes, Marks breaks 

down.”).

161 2007 Guidance at 3; 2008 Guidance at 3.
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Rapanos is itself erroneous, the agencies fail to explain their basis for dispensing with 

that interpretation and taking a very different approach in the 2014 Proposed Rule. 

Without any—let alone an adequate—reasoned explanation for adopting this new 

interpretation of Rapanos, the agencies’ 2014 Proposed Rule is arbitrary and capricious. 

Deference is particularly inappropriate here given the agency’s change in its position of 

the last seven years. The agencies cannot simply eschew any responsibility for their 2008 

Guidance by claiming the guidance did not impose legally binding requirements on EPA, 

the Corps, or the regulated community.162(p. 35-36)

Agency Response: The agencies explained their rationale for the rule as compared 

to the 2008 Guidance. Technical Support Document, I.C.

Ohio Oil and Gas Association (Doc. #15122)

10.159 The last Supreme Court ruling to address what is a "water of the United States" was 

provided in Rapanos v. United States, 547 U.S. 715 (2006). Although there was no 

majority decision provided by the Court, there was a plurality decision. Chief Justice 

Roberts, along with Justices Scalia, Thomas and Alito, provided a plurality opinion. 

Justice Kennedy provided a concurring opinion. It appears that the proposed rule attempts 

to pick and choose between these two opinions (the plurality opinion and the Kennedy 

opinion). The agencies must implement the plurality decision and implement both the 

plurality opinion and the Kennedy opinion. The agencies cannot pick and choose what 

they like from one opinion and ignore the other opinion. For instance, the plurality 

opinion made clear that intermittent or ephemeral water that flows through channels and 

channels that periodically allow drainage of rainfall are not waters of the United States. 

Id. 739 (citing Chevron v. NRDC 467 U.S. 837, 843 (1984). Yet, the proposed rule 

attempts to use the Kennedy "significant nexus" test to provide that these exact waters 

(ephemeral channels or periodic flows) do qualify as waters of the United States. The 

agencies must define what qualifies as a water of the United States by using both 

opinions – the entire plurality decision. (p. 2-3)

Agency Response: The Courts of Appeals that have considered this issue have not 

adopted the position that jurisdiction exists only where both the plurality’s and 

Justice Kennedy’s standards are satisfied. Technical Support Document, 1C. All 

nine of the United States Courts of Appeals to have considered “the narrowest 

grounds” under Marks have stated that Justice Kennedy’s significant standard may 

be used to establish applicability of the CWA. The rule is consistent with caselaw. 

Technical Support Document, I.C.

 

162 2008 Guidance at 4, n.17. The 2008 Guidance, which interpreted Rapanos broadly, was a legislative rule. The 

June 2007 Guidance was subject to public notice and comment as would a rulemaking: EPA and the Corps received 

over 66,000 public comments, and revised the Guidance in 2008 after considering these comments. 2008 Response 

to Comments at 1. The entire purpose of the 2008 Guidance was to “ensure that jurisdictional determinations, 

permitting actions, [administrative enforcement actions,] and other relevant agency actions are consistent with the 

[Rapanos] decision and supported by the administrative record.” 2008 Guidance at 3, 4. Further, the agencies issued 

the guidance “to ensure nationwide consistency, reliability, and predictability in [their] administration of the 

statute.” 2008 Guidance at 3, 4. The 2008 Guidance did not merely interpret Rapanos, but established new policy 

positions that the agencies would treat as binding when making jurisdictional determinations. Labeling the agencies’ 

action as “guidance” does not make it so and does not change the fact that this was a legislative rule.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

117

Sinclair Oil Corporation (Doc. #15142)

10.160 Case law prior to Rapanos sets clear limits on the extent of "waters of the United States." 

In 1974, the Corps promulgated regulations which defined "waters of the United States" 

using the traditional judicial interpretation of navigable waters under the Rivers and 

Harbors Act. 163See Rapanos, 547 U.S. at 723. Shortly thereafter, several environmental 

groups sued and the district com1 for the District of Columbia enjoined this regulatory 

definition as "too narrow."164 Id. at 724. In response, in 1977, the Corps adopted new 

regulations which defined "waters of the United States" broadly, extending jmisdiction 

under the CWA to the practical extent of Congress' authority under the Commerce 

Clause. See 42 Fed. Reg. 37,144. 

The Supreme Court subsequently delineated the scope of jurisdictional waters in United 

States v. Riverside Bayview Homes, where the Court rnled that wetlands abutting a 

navigable water met the definition of"waters of the United States" under the CW A. 474 

U.S. 121, 133 (1985). Following the decision in Riverside Bayview Homes, the Agencies 

continued to interpret "waters of the United States" as extending to the limit of Congress' 

Commerce Clause authority. It is important to note, however, that the Court did not 

endorse the Agencies' position that the definition of "waters of the United States" must 

extend federal jurisdiction to the limit of congressional authority under the Commerce 

Clause. Id. at 133. Instead, the Court took a more tempered approach, stating that 

"Congress evidently intended to repudiate limits that had been placed on federal 

regulation by earlier water pollution control statutes and to exercise its powers under the 

Commerce Clause to regulate at least some waters that would not be deemed 'navigable' 

under the classical understanding of that term." Id. 

Nearly two decades later, the Supreme Court once again took up the definition of "waters 

of the United States," holding that the definition did not include "ponds that are not 

adjacent to open water." SWANCC, 531 U.S. 159. In reaching its decision, the Comi 

found that a permissible definition of "waters of the United States" avoids "the significant 

constitutional and federalism questions raised" by a definition extending the scope of 

jurisdiction to the limits of Congress' Commerce Clause authority. Id. at 174. The Comi 

noted that "[w]here an administrative interpretation of a statute invokes the outer limits of 

Congress' power, we require a clear indication that Congress intended that result." Id. at 

172. The Court found no evidence of such a clear intent from Congress in passing the 

CWA, and thus determined that an interpretation of "waters of the United States" that 

pushed the definition to the limits of Congress' Commerce Clause Authority was not 

 

163 The Corps stated that the terms "navigable waters of the United States" under the Rivers and Harbors Act and 

"navigable waters" under the CW A "should be treated synonymously" and defined the terms as "those waters of the 

United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may 

be in the future susceptible for use for purposes of interstate or foreign commerce." 39 Fed. Reg.12, 112 and 12, 119

164 That court ruled that Congress intended to assert "federal jurisdiction over the nation's water to the maximum 

extent permissible under the Commerce Clause of the Constitution." Natural Resource Defense Co1111sel, Inc. v 

Callaway, 392 F.Supp. 685, 686 (D. D.C. 1975). The Supreme Court subsequently rejected this analysis in 

SWANCC, 531 U.S. 159, when it held that it did not need to analyze whether Congress could exercise authority over 

the ponds at issue under the Conunerce Clause because the CWA was "written to avoid the significant constitutional 

and federalism questions raised by" that interpretation. 531 U.S. at 174.
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allowed. Id. at 173-17 4. In short, the Court held that the scope of "waters of the United 

States" is narrower than the limits of Congress' Commerce Clause authority. 

In its decisions in Riverside Bayview and SWANCC, the Court provided the Agencies

with clearly demarcated sideboards within which the definition of "waters of the United 

States" must fall: the definition must be broader than traditional navigable waters and 

must be narrower than the limits of Congress' authority to regulate under the Commerce 

Clause. In practical terms, the two decisions leave the boundary between land and water 

somewhere between wetlands physically abutting a traditional navigable water and 

isolated, intrastate ponds whose only connection to traditional navigable waters was their 

use by migratory birds.

It is only between these margins that any confusion exists and to which the Agencies'

clarification in the proposed rule is appropriately directed. However, one of the primary

problems with the proposed rule is that it divorces the concept of "significant nexus" 

from the Commerce Clause analysis from which it originated. The Agencies should 

reevaluate the legal basis for the proposed rule and clarify that neither the plurality nor 

Justice Kennedy's opinion in Rapanos removed the limits placed on the Agencies' 

jurisdiction by the Court's decisions in Riverside Bayview Homes and SWANCC. (p. 5-6)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Illinois Coal Association (Doc. #15517)

10.161 Despite the Agencies' assertions, it is clear that, if finalized as proposed, the Proposed 

Rule would substantially expand the scope and reach of the CWA to waters that 

historically have not been regulated. In particular, the Proposed Rule would make 

jurisdictional all tributaries, regardless of flow and duration, as well as all adjacent 

waters, broadly defined to include waters with a shallow hydrologic or subsurface 

connection, even where separated by uplands or wholly man-made features. These are not 

insignificant changes. Rather, when combined with broad and unlimited theories of 

connectivity, they constitute abrupt and arbitrary deviations from longstanding regulatory 

meanings. We fail to see how such sweeping changes align with the Agencies' purported 

goal of promoting clarity and consistency. In any event, whatever the Proposed Rule 

might have accomplished in terms of added clarity is undone by the fact that it rests on an 

erroneous assertion of jurisdiction that runs afoul of the seminal Supreme Court holdings 

in Solid Waste Agency of N. Cook County v. Us. Army Corps ofEngr's, 531 U.S. 159 

(2001) ("SWANCC") and Rapanos v. United States, 547 U.S. 715 (2006). Indeed, though 

the Agencies provide lip service to Justice Kennedy's concurrence in Rapanos, the

Proposal fails to comply with his basic admonition that the connection between a 

regulated site and traditionally navigable water must be substantial in order to establish 

jurisdiction. Rapanos, 547 U.S. at 778780,782. 

Congress explicitly sought to limit federal jurisdiction under the CWA to only certain 

"navigable" "waters of the United States." See 33 U.S.C. §§ 1311(a), 1342(a) and 

1362(7). This clearly underscores the fact that certain other waters necessarily fall 

beyond the Act's reach. See 33 U.S.C. §§ 1311(a), 1342(a) and 1362(7). Over the last 

several decades the U.S. Supreme Court has sought to provide meaning to the concept of 

"waters of the U.S." and has shed light on where, along the continuum of the landscape, 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

119

from wet to dry land, the federal government's authority under the Act must begin and 

end. See generally, United States v. Riverside Bayview Homes, 474 U.S. 121 (1985); 

SWANCC, 531 U.S. 159; and Rapanos, 547 U.S. 715. And although that line in the 

landscape has, in some cases, proven to be difficult to ascertain, here it is clear that the 

Agencies' attempts to exert ever increasing control over an ever decreasing volume of 

water would push this line far beyond the point where the term "navigable" retains any 

meaning. It goes without saying that Congress did not intend for this definition to be 

subsequently read out of the CWA by agency regulation. (p. 5)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute, caselaw and the Constitution. Technical Support 

Document, I.A., B., and C

Independent Petroleum Association of New Mexico (Doc. #15653)

10.162 It is IPANM’s position, as well as that of several other associations that the plurality 

opinion of Rapanos should govern implementation of the Clean Water Act “waters of the 

United States.” The agencies have over-stated the Kennedy standard which clearly only 

applies to wetlands, to apply the standard to waters which tenuous nexus results in 

impermissibly expanding the proposed definition beyond the scope of the Clean Water 

Act. (p. 9)

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C.

Marcellus Shale Coalition (Doc. #18880)

10.163 The Clean Water Act was enacted pursuant to Congress's authority to regulate interstate 

commerce under Article I, section 8 of the U.S. Constitution. Historically, Congress has 

used the term "navigable waters" to assert its power to regulate commerce among the 

states. This is how Congress enacted the Federal Water Pollution Control Acts, and 

ultimately the 1972 version of the Clean Water Act. Thus, the Clean Water Act was not 

intended to regulate all waters of the United States, only those associated with commerce 

among the states, (33 CFR, Part 328). 

As is clear from the historical context of Congress' authority over waters of the United 

States, the Agencies proposed regulation goes far beyond what Congress intended when 

it enacted the Clean Water Act. For example, the Agencies' proposed definition for "other 

waters" violates the Constitution as it extends the authority under the Clean Water Act 

beyond the regulation of interstate commerce. Some of these "other waters" in the 

proposed rulemaking purported to be subject to Clean Water Act jurisdiction, are not, 

under a proper commerce clause analysis, subject to federal authority. As a result, these 

waters fall outside the scope of Congress's, and therefore the Agencies', constitutional 

authority." 

Moreover, the Agencies proposed a significant nexus test which would result in 

regulatory overreach beyond the jurisdiction of the Clean Water Act. This would result in 

jurisdiction over features which are not navigable waters and carrying only minor 

volumes of flow. This was not what Congress intended and goes beyond even the 

broadest interpretation of recent Supreme Court decisions in Solid Waste Agency of 

Northern Cook County v. U.S. Army Corps of Eng'rs , 531 U.S. 1595 172 (2001) 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

120

(SWANCC), and Rapanos v. United States , 547 U.S. 715 (2006). As majority opinion in 

SWANCC held "[T]he term 'navigable' has ... the import of showing us what Congress 

had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters 

that were or had been navigable in fact or which could reasonably be so made."

The Agencies' attempt to address both SWANCC and Rapanos must be based upon the 

clear constitutional limits under which they operate. The proposed rule, as currently 

written, clearly exceeds Congress' commerce power over navigation and wholly ignores 

those limits recognized by the Supreme Court. (p. 1-2)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Snyder Associated Companies, Inc. (Doc. #18825)

10.164 EPA has indicated this proposed rulemaking is for clarification. However, there is no 

regulatory failure that justifies this proposed rulemaking. In fact, on two separate 

occasions, (SWANCC and Rapanos), the Supreme Court has ruled against this type of 

agency efforts. (p. 1)

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C.

Halliburton Energy Services, Inc. (Doc. #19458)

10.165 The Agencies’ categorical assertion of jurisdiction over tributaries and adjacent waters is 

inconsistent with Supreme Court precedent. As noted above, the proposed definition of 

tributaries captures non-adjacent, non-navigable tributaries of limited flow on a per se 

basis based on a blanket generalization that tributary systems are (of course and 

unsurprisingly) at some level connected to navigable waters. The Agencies assert that this 

connectivity constitutes a “significant nexus” for tributary systems as a whole. But even 

Justice Kennedy’s concurring opinion in Rapanos does not support this new and 

expansive definition of tributary that reaches to the most remote and ephemeral stretches 

of the hydrological system.

In fact, Justice Kennedy’s opinion is replete with language demonstrating that he did not 

contemplate that all tributaries would be considered jurisdictional. For example, 

according to Justice Kennedy, the CWA does not go so far as to establish federal 

jurisdiction “whenever wetlands lie alongside a ditch or drain, however remote and 

insubstantial, that may eventually flow into traditional navigable waters.”165 He further 

explained that an OHWM standard for what constitutes a “tributary” presumably 

provides a rough measure of the volume and regularity of flow, and so “assuming it is 

subject to reasonably consistent application” [but citing a study suggesting otherwise], “it 

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 

[CWA].”166 Moreover, Justice Kennedy stated that a “[m]ere hydrological connection 

should not be sufficient [to establish jurisdiction] in all cases; the connection may be too 

 

165 547 U.S. at 778 (Kennedy, J., concurring).

166 Id. at 781 (emphasis added).
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insubstantial for the hydrological linkage to establish the required nexus with navigable 

waters as traditionally understood.”167

Moreover, under the Agencies’ construct, the extension of CWA jurisdiction to all 

tributaries no matter how ephemeral in nature automatically gives the Agencies 

jurisdiction over all wetlands and water bodies considered to be adjacent to these 

“tributaries” under the Agencies’ expansive definition. However, Justice Kennedy made 

clear that such blanket assertions of jurisdiction go too far:

[T]he breadth of this standard [i.e., the use of an OHWM alone to establish 

jurisdiction over a tributary] – 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 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. 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 pools held to fall beyond the Act’s scope in SWANCC.168

The proposed rule ignores these limits on federal jurisdiction. Instead, the Agencies are 

attempting to hurdle these statutory limits, as interpreted by the Supreme Court, by 

latching onto the concept of a “significant nexus,” untethering it from the underlying 

opinions, and using aggregation to avoid any specific analysis or reasonable limits, such 

as breaks in the OHWM. The proposed definition of tributaries reaches too far and 

therefore is not supported by the CWA. (p. 9-10)

Agency Response: The rule narrows the waters that meet the definition of 

tributary by requiring both a bed and banks and another indicatory of ordinary 

high water mark. Preamble IV, and, Technical Support Document I.C. Consistent 

with Justice Kennedy’s opinion, the rule is based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for covered tributaries. Preamble, III and IV and Technical Support Document, 

I.C. and VII.

10.166 The Agencies’ failure to recognize the limits of federal jurisdiction over isolated waters is 

even more pronounced. Before SWANCC, the Agencies asserted jurisdiction to the full 

reach of the Commerce Clause of the U.S. Constitution, including waters visited by 

migratory birds such as the isolated pond at issue in the case. In SWANCC, the Supreme 

Court not only held that “the ‘Migratory Bird Rule’ is not fairly supported by the 

CWA”169 and “exceeds the authority granted to respondents under § 404(a) of the 

CWA,”170 but expressly explained at least one firm limit on jurisdiction imposed by the 

CWA:

 

167 Id. at 786.

168 Id. at 781-82.

169 531 U.S. at 167.

170 Id. at 174.
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In order to rule for the respondents 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 the text of the statute will not allow this.171

Consistent with that language, a majority of the Rapanos Court read SWANCC as not 

just invalidating the Migratory Bird Rule, but holding that the Agencies cannot assert 

jurisdiction over isolated waters under the CWA. In discussing SWANCC, the plurality 

opinion states that “we held that ‘nonnavigable, isolated, intrastate waters’ . . . were not 

included as ‘waters of the United States.’”172 Justice Kennedy’s concurring opinion is 

hardly less clear, explaining that “[b]ecause [a significant] nexus was lacking with 

respect to isolated ponds, the Court held that the plain text of the statute did not permit 

the Corps’ action,”173 and further referring to “SWANCC’s holding that ‘nonnavigable, 

isolated, intrastate waters’ ... are not ‘navigable waters’ . . . .”174

Thus, as interpreted by the Court, the CWA simply does not extend to isolated waters. 

This is a matter of statutory interpretation grounded in the Court’s understanding of the 

intent of Congress. The report on connectivity of streams and wetlands to downstream 

waters that the Agencies rely on to argue that their broad claims of jurisdiction are 

scientifically justified does nothing to alter this understanding of the limits of the statute’s 

reach. Therefore, the Agencies’ attempt to apply the significant nexus test to isolated 

waters – an application not contemplated by Justice Kennedy – is fundamentally at odds 

with the statute as interpreted by the Court. As a result, the Agencies should withdraw the 

proposed rule and issue a new proposal that conforms with the intent of Congress as 

interpreted by the Supreme Court. (p. 10-11)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Georgetown Sand & Gravel (Doc. #19566)

10.167 EPA has indicated this proposed rulemaking is for clarification. However, there is no 

regulatory failure that justifies this proposed rulemaking. In fact, on two separate 

occasions, (SWANCC and Rapanos), the Supreme Court has ruled against this type of 

agency efforts. (p. 2)

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C

Montana Wool Growers Association (Doc. #5843.1)

10.168 The Agencies should allow Congress to determine the Agencies' jurisdiction and duties 

by amending the CWA. If the Agencies believe their jurisdiction should be expanded, 

they should petition Congress to amend the CWA and offer guidance in that process. The 

Agencies' rulemaking power should be used to explain how the Agencies will execute 

duties within their jurisdiction, not to redefine the jurisdiction itself. (p. 2)

 

171 Id. at 168 (first emphasis in original; second emphasis added).

172 Rapanos, 547 U.S. at 726.

173 Id. at 767.

174Id. at 774. See also id. at 782 (referring to “the isolated ponds held to fall outside the Act’s scope in SWANCC”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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Agency Response: This rule is promulgated pursuant to Section 501 of the CWA 

and is consistent with the statute. Technical Support Document, I.A.

10.169 The Proposed Rule would replace the twelve current regulations defining WOTUS with 

twelve nearly identical definitions. Courts are instructed to interpret statutes to give

meaning to each section and each word. Yule Kim, CRS Report for Congress, Statutory 

Interpretation: General Principles and Recent Trends, http://fas.org/sgp/crs/misc/97-

589.pdf (Aug. 31, 2008).The same principle applies to interpreting agency rules. To give 

meaning to each definition here, courts must consider each definition within the context 

of its surrounding regulation and ignore the language in Section (a) of the Proposed Rule, 

which says the definition applies to "all sections of the Clean Water Act." For instance, to 

give separate effect to the definition under 40 C.F.R. § 122.2, it must only "apply to parts 

122, 123, and 124" of the Code of Federal Regulations, which in turn apply to "sections 

318, 402, and 405 of the CWA." If the Agencies intended the Proposed Rule's definition 

of WOTUS to apply uniformly throughout the CWA, eleven of the twelve definitions are 

"mere surplusage" and actually impede that interpretation. The Code of Federal 

Regulations should include only one definition of WOTUS and specify that the definition 

applies to the entire CWA. (p. 12)

Agency Response: As the agencies stated in the preamble to the proposed rule, the 

term “navigable waters” is used in a number of provisions of the CWA, including 

the section 402 National Pollutant Discharge Elimination System (NPDES) permit 

program, the section 404 permit program, the section 311 oil spill prevention and 

response program, the water quality standards and total maximum daily load 

programs under section 303, and the section 401 state water quality certification 

process. While there is only one CWA definition of “waters of the United States,” 

there may be other statutory factors that define the reach of a particular CWA 

program or provision. 

10.170 The Preamble alternately cites to the United States Code and the Public Law amendments 

when referring to the CWA. Even for someone trained in legal research, the mixed 

citations make research difficult without a copy of the CWA that provides the United 

States Code and Public Law amendment citations simultaneously. The United States 

Code is publicly available, easy to access, and easy to use; the Public Law amendments 

are not (although they can be accessed in sections or in one PDF on the EPA website). 

The Preamble and Proposed Rule should cite only to the United States Code. (p. 12)

Agency Response: Both citation forms are commonly used to refer to the CWA 

and are publicly available. 

National Sorghum Producers (Doc. #10847)

10.171 In appraising the proposed rule, we believe it is noteworthy that the EPA and the Corps 

acknowledge that the rule would expand their jurisdictional reach, according to the 

Congressional Research Service (CRS), despite two separate rulings of the Supreme 

Court holding that the federal government had already exceeded its authority under the 

Clean Water Act. While we recognize that a majority on the Supreme Court has been 

unable to agree on the definition of “waters of the United States”, we believe that 

definition provided under the proposed rule would not only run afoul of the plurality 
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124

opinion in Rapanos v. United States but also of Justice Kennedy’s concurring opinion. (p.

1)

Agency Response: The rule is narrower in scope than the existing rule and 

consistent with the decisions of the Supreme Court. Technical Support Document, 

I.B. and C. For example, while the existing rule established no limitations of the 

scope of tributary, the rule for the first time provides a definition of tributary that 

includes the requirement that a water have a bed and banks and another indicator 

of ordinary high water mark. Preamble, IV.

United Farm Credit System (Doc. #12722)

10.172 The expanded definition and jurisdiction of WOTUS established by the proposed rule 

will significantly increase the risk of litigation against farmers and ranchers. Furthermore, 

the costs of such litigation is very expensive and beyond the resources of most farmers 

and ranchers. As we have seen, the citizen lawsuits under the Clean Water Act have led 

to certain classes of pesticides needing a federal Clean Water Act permit in order to be 

applied according to their already federally approved label. Lawsuits using the same logic 

will be brought against farmers and ranchers for use of pesticides and fertilizers when 

they are used on farms with drainage features. (p. 2-3) 

Agency Response: The agencies have provided an economic assessment of the 

rule. Preamble, V, and economic assessment in the docket. 

Louisiana Cotton and Grain Association (Doc. #12752)

10.173 The LCGA believes that the proposed rule, as written, goes well beyond the limits set by 

Congress and the United States Supreme Court by greatly expanding federal jurisdiction 

under the Clean Water Act. The proposed rule fails to reach its goal of clarity, and the 

text of the rule invites unpredictable enforcement while providing ample leeway for 

federal agencies to assert jurisdiction. The proposed rule, as written, illegally assumes 

control over lands and waters that have been and should continue to be under state 

jurisdiction. Most importantly, the consequences of the proposed rule will force 

Louisiana farmers and landowners out of business, whether it is from endless litigation 

caused by the ambiguous guidance of the rule, excessive fines resulting from confusion 

created by the loosely written rule, or from overly burdensome permitting procedures 

limiting, delaying and preventing activity on private lands. (p. 4) 

Agency Response: The rule provides for increased clarity and certainty. 

Preamble, II and IV. The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Colorado Farm Bureau (Doc. #12829)

10.174 A proposal to revise the Agencies’ regulations defining “waters of the U.S.” must clearly 

identify the limits to CWA jurisdiction articulated by the Supreme Court in SWANCC and 

Rapanos. In those cases, the Supreme Court rejected the notion that CWA jurisdiction 

extends to nonnavigable, isolated, intrastate waters or to any area with a hydrologic 

connection to navigable waters. The Court disagreed with the Agencies’ “land is waters” 

approach. (p. 8)
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Agency Response: The rule provides for increased clarity and certainty. 

Preamble, II and IV. The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

Bayless and Berkalew Co. (Doc. #12967) 

10.175 The Supreme Court has reaffirmed the Act’s limits in stating that remote and 

insubstantial waters that eventually may flow into navigable waters do not qualify for 

regulation. This would be descriptive of almost all “tributaries” in Arizona, yet the EPA 

has ignored both representative government and judicial review and through 

implementation of this rule will dictate all land-use across the entire country regardless.

Congress wrote many exemptions to prevent federal permit requirements for farming; 

however, Congress used language that assumed farming happens on land, not in 

WOTUS. By defining land to be WOTUS, the rule would result in federal permit 

requirements for countless farming and ranching activities nationwide. (p. 5) 

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. The agencies disagree that Congress used 

language that assumed farming happens on land. To the contrary, Section 404(f) 

exempts specified discharges of dredged and fill material to waters of the United 

States from requiring permits; it does not exempt the waters into which those 

discharges occur from the definition of waters of the United States.

Pershing County Water Conservation District (Doc. #12980)

10.176 In the Federal Register filing, the EPA states that these rules are away of clarifying and 

codifying the rulings in a number of recent United States Supreme Court decisions on this 

issue. It is the District's contention that the very opposite is in fact true. While the EPA 

contends that the rules are consistent with the rulings of the Supreme Court, the Court in 

each cited case has limited the jurisdiction of the EPA in cases where they tried to assert 

their jurisdiction over water they should not have. Yet, somehow the EPA attempts to use 

such decisions to expand their jurisdiction once again. (p. 3) 

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C

Nebraska Cattlemen (Doc. #13018.1)

10.177 The proposed rule represents the EPA and the U.S. Army Corps of Engineers (Corps) 

interpretation of the current jurisdictional reach of the CWA. The proposed rule will 

supersede a 2003 Joint Memorandum which provided clarifying guidance on the Supreme 

Court’s Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers 

(SWANCC) and a 2008 Joint Guidance memo issued after another Supreme Court case of 

Rapanos v. United States (Rapanos). Both of those cases involved wetlands issues with 

the Corps under §404.

As noted, the proposed rule addresses the definition of “waters of the United States” for 

all CWA purposes. And yet, the model for the regulatory approach here is the Existing 

Guidance which was limited on its face to §404 determinations.

One stated purpose of the proposed rule is to reduce the use of the Corps’ Wetlands 

Delineation Manual of 1987 and its supplements. The Manual is the tool the agencies use 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

126

to determine whether water bodies are subject to CWA jurisdiction on a case-by-case 

basis. Case-by-case determinations using the Manual are frequently difficult, time 

consuming, and bureaucratic. (p. 7)

Agency Response: While the Supreme Court decisions were in the context of 

section 404 permitting, the decisions addressed the definition of “waters of the 

United States” that applies to the Clean Water Act. That said, there may be other 

statutory factors that define the reach of a particular CWA program or provision. 

It is not the stated purpose of the rule to reduce the use of the delineation manual. 

The rule does not change the definition of wetland and does not address or change 

use of the delineation manual.

10.178 The proposed rule does codify existing policies and categorically exempt areas from 

federal CWA jurisdiction in a specific listing of the policies and areas. However, the net 

effect of the proposed rule is that never before regulated smaller and more remote 

upstream bodies of water will fall with certainty within federal CWA jurisdiction. It is the 

position of Nebraska Cattlemen that the proposed rule has expanded the jurisdiction of 

the CWA to waters that the Supreme Court has ruled are beyond its scope. (p. 9) 

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute and caselaw. Technical Support Document, I.A., B., and 

C. 

North Dakota Soybean Growers Association (Doc. #14121)

10.179 The North Dakota Soybean Growers Association refutes the agencies’ reliance on the 

Rapanos interpretation and the alleged version of “significant nexus” by Justice Kennedy 

in particular, because, either separate or combined, they do not provide valid legal 

justification for the expansive redefinition of WOTUS in the proposed rule. In fact we 

believe that the agencies’ rationale stands in direct contrast to Justice Kennedy’s actual 

opinion in Rapanos as well as his (and the majority) opinion rendered in Riverside 

Bayside Homes and SWANCC. The court has consistently upheld the states’ right to 

regulatory jurisdiction that is prescribed in the CWA. (p. 4)

Agency Response: The rule is consistent with the statute and Supreme Court 

decisions. Technical Support Document, I.A. and C. 

Sugar Cane Growers (Doc. #14283)

10.180 The Clean Water Act makes clear that Congress chose to “recognize, preserve, and 

protect the primary responsibilities and rights of the States.” 33 U.S.C. § 1251(b). 

Congress chose not to stretch – and then exceed – the outer limits of its powers under the 

Commerce Clause. See id. The proposed rule would do precisely that which Congress 

chose not to do itself. (p. 5)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Wyoming Farm Bureau Federation (Doc. #14406)

10.181 WyFB questions if EPA and the Corps have the legal authority to go forward with these 

proposed rules. Changing the definition of Waters of the U.S. seems to go against U.S. 

Supreme Court rulings and the intent of the U.S. Congress. Others, such as American 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

127

Farm Bureau Federation, have covered the legal issues at the federal level so WyFB will 

defer to their comments and lend strong support to those comments. (p.1)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

LeValley Ranch, Ltd. (Doc. #14540)

10.182 We are also disappointed in the proposed rule’s lack of clarity due to ambiguous or 

undefined terms and phrases. As it stands, it is extremely unclear how far the agencies 

intend federal jurisdiction to extend and if taken to the maximum extent possible the 

proposed rule wraps in virtually every feature across the nation, which contravenes not 

only the CWA itself but also the Commerce Clause of the U.S. Constitution. This is very 

troublesome for Colorado and those states downstream that rely on water originating in 

Colorado. (p. 5)

Agency Response: The rule is not vague and is consistent with the statute and the 

Constitution. Technical Support Document, I.A., B., and C. 

California Association of Winegrape Growers (Doc. #14593)

10.183 Notwithstanding various interpretations on the definition of “waters of the United States,” 

U.S. Supreme Court precedent to date is clear that a fundamental limit on the Corps’ and 

the EPA’s jurisdiction under the CWA is the “reasonableness” of a jurisdictional 

determination, particularly in light of the outer limits of congressional and executive 

power under the Commerce Clause and the basic principles of federalism that are the 

foundation for our system of government. (p. 6)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

10.184 We believe the proposal errs by looking only to the most favorable language in the law as 

the basis for justification, leaving out the limiting requirements. A full statement of the 

law limits jurisdiction more narrowly than in the proposal. For example, the proposal 

ignores the touchstone requirement of navigability. This constitutes a key omission and is 

a fundamental tenet of Congressional intent. As a result EPA reaches faulty conclusions 

that don’t meet Supreme Court standards for jurisdiction, and the proposed rule 

misapplies the significant nexus test of significant and substantial. (p. 10)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

American Soybean Association (Doc. #14610)

10.185 With this rule, EPA risks taking federal action that stretches the limits of Congress’s 

commerce power by adopting the wrong Rapanos test – the Kennedy “nexus” test – and 

applying it nationwide. This nexus test has been applied by a few U.S. Circuit Courts of 

Appeal, but is not the law of the land. Indeed, the nexus test is so vague that it is no 

surprise that courts and agencies are finding it difficult to apply in actual hydrological 

settings. (p. 3)

Agency Response: The rule is not vague and is consistent with the statute and the 

Constitution. Technical Support Document, I.A., B., and C. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

128

National Alliance of Forest Owners (Doc. #15247)

10.186 The Agencies improperly fail to give weight to the Rapanos plurality’s holding 

and instead tailor the Proposed Rule to meet Justice Kennedy’s concurring 

opinion and dissent. The proposed rule improperly assumes that Justice 

Kennedy’s opinion in conjunction with the dissenting opinion provide the 

jurisdictional guideposts, when in fact, Justice Kennedy’s concurrence places 

important limits on jurisdiction and should be considered in concert with the 

plurality opinion. The Agencies do not shy away from the fact that they have 

tailored the proposed rule to what Justice Kennedy and the four dissenting 

Justices would accept as a permissible exercise of Clean Water Act authority. For 

example, the Agencies attempt to justify their categorical assertion of jurisdiction 

over all tributaries by arguing that such an approach is “consistent with Rapanos 

because five Justices did not reject the current regulations that assert jurisdiction 

over nonnavigable tributaries of traditional navigable waters and interstate 

waters.” The Agencies, however, must reel in their jurisdictional reach through 

regulations that align with the actual result in Rapanos, which rejected the Corps’ 

jurisdictional overreach and placed important limits on the scope of federal CWA 

jurisdiction. The Agencies must also interpret Rapanos in a manner that is 

consistent with the Supreme Court’s direction in Marks v. United States regarding 

the interpretation of fractured opinions.175 In Marks, the Supreme Court explained 

that “[w]hen a fragmented Court decides a case and no single rationale explaining 

the result enjoys the assent of five Justices, the holding of the Court may be 

viewed as that position taken by those Members who concurred in the judgment 

on the narrowest grounds.”176As such, the Agencies must look to both the 

plurality opinion and Justice Kennedy’s concurring opinion to find a common 

holding because those are the only opinions that actually concurred in the 

judgment. The Agencies must not rely solely on Justice Kennedy’s opinion, and 

they certainly cannot combine Justice Kennedy’s opinion and the dissenting 

opinion to arrive at a “holding” under Marks. (p. 6-7) 

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

The rule is consistent with caselaw. Technical Support Document, I.C.

Ranchers - Cattlemen Action Legal Fund USA (Doc. #15440)

10.187 The Proposed Rule undermines the Constitution’s balance of powers by substituting the 

more restrictive jurisdictional constraints established by Congress with a standard 

employed by the judiciary branch to decide a narrow, fact-specific case, thereby 

rendering the Proposed Rule arbitrary and capricious. Congress limited EPA et al.’s 

jurisdictional scope under the Clean Water Act by declaring that scope to be “navigable 

waters.” 79 Fed. Reg., at 22,191. As mentioned above, regulatory creep and fact-specific 

 

175 See 430 U.S. 188 (1977).

176 Id. at 193.
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129

case law has resulted in the agencies’ assertion that its jurisdiction has increased 

somewhat beyond what are viewed traditional navigable waters.

Importantly, the agencies’ unilaterally effected those expansions without any Congressenacted amendments to the Clean Water Act, through regulations codified in 1986 and by 

the deference certain courts granted EPA et al. when deciding complaints under the Clean 

Water Act. At least that was the case until recently when two U.S. Supreme Court 

decisions effectively halted EPA et al.’s crusade to continually expand their control over 

waters never contemplated by Congress. (p. 5)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Multiple Agricultural Associations (Doc. #16357.1)

10.188 The Agencies repeatedly state throughout the preamble and in their marketing campaign 

that the proposal merely codifies longstanding agency practice. We have no doubt that 

the Agencies have asserted broad jurisdiction over waters outside the proper scope of the 

CWA in the past. Such agency practice, however, does not legitimize the proposed 

overbroad assertion of jurisdiction. The Agencies’ expansive assertions of jurisdiction 

have been debated and litigated for decades. With a few notable exceptions, the Agencies 

have largely escaped judicial review of their unlawful assertions of jurisdiction because 

of their insistence (upheld by some courts) that jurisdictional determinations are not 

subject to judicial review. Only in cases where EPA brought (or threatened in the case of 

the Sackett litigation) an enforcement action could a landowner challenge the Agencies’ 

assertion of jurisdiction in court.177 After decades of evading judicial review, the 

Agencies now appear to believe that unchecked past agency practice validates the 

proposed rule. It does not. (p. 18)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute and caselaw. Technical Support Document, I.A., B., and 

C. 

10.189 The vagueness of the proposed rule as described above also creates a Due Process 

problem because of the heavy civil fines and criminal penalties carried by the CWA. 

Civil and administrative penalties can equal $37,500 per day, per violation 33 U.S.C. § 

1319(d),(g) (last adjusted to reflect inflation at 78 Fed. Reg. 66,843). A “knowing” 

violation carries potential criminal penalties of up to $100,000 and six years in jail time. 

Id. at § 1319(c)(2). Even a “negligent” violation can result in fines of $50,000 per day 

and two years in jail. Id at § 1319(c)(1). The permit application process also presents 

further peril: a false statement, representation or certification can bring fines up to 

$20,000 per day and four years in jail. Id. at §1319(c)(4). (p.21)

Agency Response: The rule is not vague and meets Constitutional due process 

requirements. Technical Support Document, I.C. 

10.190 Instead of providing clarity and certainty so that law abiding farmers can understand and 

comply with the law, the proposed rule categorically defines “waters of the U.S.” 

 

177 Sackett v. EPA, 132 S. Ct. 1367 (2012).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

130

amorphously, turning on so many vague terms that no one can know what conduct is 

criminal and what conduct is lawful. Yet an incorrect guess can result in criminal liability 

and even incarceration. Consequently, the rule violates the basic Due Process 

requirement that criminal statutes provide a fair warning that the common world will 

understand. United States v. Bass, 404 U.S. 336, 348 (1971). As proposed, there is little 

in the rule that the “common world” will understand—indeed most of the preamble and 

even the regulatory text is scientific jargon. No farmer, or any other landowner, can 

reasonably be expected to understand and carry out scientific determinations (such as the 

identification of an OHWM, or the distinction between an ephemeral stream and an 

erosional feature, or the aggregate impact of all “similarly situated” features in “the 

region”) that agency officials themselves find daunting. (p. 22)

Agency Response: The rule is not vague and meets Constitutional due process 

requirements. Technical Support Document, I.C. 

10.191 In addition, decades of Supreme Court precedent have established that “ambiguity 

concerning the ambit of criminal statutes should be resolved in favor of lenity.” Rewis v. 

United States, 401 U.S. 808, 812 (1971); United States v. Universal CIT, 344 U.S. 218, 

222 (1952) (The courts will “not derive criminal outlawry from some ambiguous 

implication.”); United States v. Cardiff, 344 U.S. 174, 176 (1952)(“The vice of vagueness 

in criminal statutes is the treachery they conceal either in determining what persons are 

included or what acts are prohibited”). Likewise, the Agencies must avoid any regulatory 

interpretation that would impose a loss of liberty over terms so vaguely defined. (p. 22)

Agency Response: The rule is not vague and meets Constitutional due process 

requirements. Technical Support Document, I.C. 

10.192 The Supreme Court has in recent decisions warned against deferring to agencies’ 

interpretations of their own vague regulations in situations, like this one, where deference 

would “encourage[e] agencies to be vague in framing regulations, with the plan of issuing 

‘interpretations’ to create the intended new law without observance of notice and 

comment procedures.” Decker v. Nw. Env’tl Defense Ctr., 133 S. Ct. 1326, 1341 (2013) 

(Scalia, J., concurring in part). Put another way, the Supreme Court will not “permit [an] 

agency, under the guise of interpreting a regulation, to create de facto a new regulation.” 

Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 881 (2011). Yet that is just what EPA 

proposes to do here: to issue a hopelessly vague regulation, the concrete meaning of 

which it will provide later on, in case-by-case “interpretations” and presumably further 

“guidance” without the notice-and-comment procedures mandated by the APA. (p.22-23)

Agency Response: The rule is not vague and meets Constitutional due process 

requirements. Technical Support Document, I.C. 

10.193 Indeed, even in cases where there is “no reason to suspect that the [agency’s] 

interpretation does not reflect [its] fair and considered judgment” (Chase Bank, 131 S. Ct. 

at 881), justices of the Supreme Court have expressed serious doubts about the practice of 

deferring to agencies’ interpretations of their own ambiguous regulations under any 

circumstances. See Decker, 133 S. Ct. at 1339 (“there is some interest in reconsidering” 

Auer deference) (Roberts, C.J., joined by Alito, J., concurring). The reason for those 

doubts is evident: When “the power to prescribe is augmented by the power to interpret,” 

it encourages agencies “to speak vaguely and broadly, so as to retain a ‘flexibility’ that 
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131

will enable ‘clarification’ with retroactive effect,” turning the motivating rationale for 

Administrative Procedure Act (APA) notice-and-comment rulemaking on its head. 

Decker, 133 S. Ct. at 1341 (Scalia, J., concurring in part). EPA’s adoption of that suspect 

strategy could not be any more obvious than it is in this case. (p. 23)

Agency Response: The rule is not vague and meets Constitutional due process 

requirements. Technical Support Document, I.C. 

10.194 The undersigned groups would like to respond to misleading statements made by EPA in 

its marketing campaign suggesting that our organizations requested this proposed.178 For 

many years, agricultural organizations and numerous other stakeholders have asked the 

Agencies to stop relying on non-binding guidance as a basis for asserting and expanding 

federal jurisdiction. We publicly made these comments several times, including in letters 

and comments to EPA.179 In those materials, agricultural groups and others stressed that: 

A proposal to revise the Agencies’ regulations defining “waters of the U.S.” must clearly 

identify the limits to CWA jurisdiction articulated by the Supreme Court in SWANCC and 

Rapanos. In those cases, the Supreme Court rejected the notion that CWA jurisdiction 

extends to nonnavigable, isolated, intrastate waters or to any area with a hydrologic 

connection to navigable waters. The Court disagreed with the Agencies’ “land is waters” 

approach. A proposed rule should not allow for the watershed aggregation approach 

contained in the Agencies’ 2011 draft Guidance. Consistent with SWANCC, the proposed 

rule should explicitly state that isolated (or “non-physically proximate”) waters are not 

subject to CWA jurisdiction. A proposed rule must not simply adopt confusing legal 

standards such as “significant nexus,” but rather establish clear and reasonable 

jurisdictional lines to assist the regulated public and regulators in implementing the CWA 

on the ground. (p. 26)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is based on 

the agencies’ careful examination of the science and the law to make a 

determination of significant nexus for specified waters and to provide that certain 

other waters may be jurisdictional where a case-specific determination has found a 

significant nexus. Preamble, III, and Technical Support Document, I.B, I.C. and II. 

By identifying waters that are jurisdictional, waters that are not jurisdiction and a 

limited set of waters for which case-specific significant nexus analysis is performed 

the rule provides and provides for increased clarity and certainty. Preamble, II and 

IV.

Pershing County Water Conservation District (Doc. #16519)

10.195 The primary case on this issue is that of Rapanos v. United States.

180

 This case involved 

wetlands near ditches that eventually drain to "traditional navigable waters." The United 

States brought suit against certain private individuals for backfilling some of the wetland 

areas without a permit. The District Court, and Sixth Circuit Court of Appeals found that 

 

178 See U.S. EPA, “Persons and Organizations Requesting Clarification of ‘Waters of the U.S.’ by Rulemaking,” 

available at http://www2.epa.gov/sites/production/files/2014-03/documents/ wus_request_rulemaking.pdf; attached 

herein as Appendix T.

179 See letter from the Waters Advocacy Coalition to EPA on Feb. 12, 2013, attached as Appendix U. 

180 Rapanos v. United States, 547 U.S. 715 (2006).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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the EPA had jurisdiction over the water, however, the United States Supreme Court 

reversed and found no jurisdiction existed. The plurality opinion found that only waters 

or wetlands with "relatively permanent, standing or continuously flowing bodies of 

water" such as "oceans, rivers, lakes," with connection to navigable waters could be 

under the jurisdiction of the EPA.181 And the term "Waters of the United States" does not 

include "channels through which water flows intermittently or ephemerally, or channels 

that periodically provide drainage for rainfall."182 Additionally, it was stated that water is 

not under the jurisdiction of the United States "based on a mere hydrologic 

connection."183 Instead, there must be a "continuous surface connection."'184 The 

"significant nexus" standard used in the proposed rule clearly over-steps the constraints 

placed on the EPA's jurisdiction by the Supreme Court. (p. 3-4)

Agency Response: The rule is consistent with the decisions of the Supreme Court.

Technical Support Document, I.C

Glenn-Colusa Irrigation District (Doc. #16635)

10.196 GCID appreciates the Agencies’ attempt to bring greater certainty to decisions on 

whether particular waters will be jurisdictional in light of the U.S. Supreme Court’s 

decisions in Rapanos v. United States (Rapanos), 547 U.S. 715 (2006), Solid Waste 

Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), 

and United States v. Riverside Bayview Homes (Bayview), 474 U.S. 121 (1985). 

However, the Proposed Rule proposes new definitions for key terms, such as “tributary” 

and “adjacent” that impermissibly expand the jurisdictional scope of the CWA. Further, 

the Proposed Rule’s failure to resolve issues involving the interpretation of WOTUS will 

frustrate the regulated community’s attempt to comply with the new regulation and 

definitions included therein until the courts weigh in to provide sufficient guidance. 

10.197 In Rapanos, the Court held in favor of tightening the definition of WOTUS; however, in 

so doing, the plurality failed to provide guidance on the proper interpretation to be 

applied when the Agencies consider whether a waterbody is a WOTUS. Four of the 

justices comprising the plurality interpreted the WOTUS definition to cover “only those 

wetlands with a continuous surface connection to bodies that are ‘waters of the United 

States’ in their own right . . . .”185 In his concurring opinion, Justice Kennedy, however, 

concluded, “jurisdiction over wetlands depends upon the existence of a significant nexus 

between the wetlands in question and navigable waters in the traditional sense.”186 

Justice Kennedy opined that wetlands fall within the definition of WOTUS when “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.’ ” Because the plurality in Rapanos could not 

agree on a single test to determine whether a particular waterbody is a WOTUS, neither 

the plurality opinion nor Justice Kennedy’s concurring opinion is considered 

 

181 Id.

182 Id.

183 Id.

184 Id.

185 Rapanos, 547 U.S. at 742.

186 Rapanos, 547 U.S. at 779. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

133

authoritative, and the appellate courts have had to determine the appropriate standard on a 

case-by-case basis. (p. 2-3)

Agency Response: The rule is consistent with the caselaw. Technical Support

Document, I.C

10.198 Moreover, Justice Kennedy’s inclusion of the phrase “either alone or in combination with 

similarly situated land in the region” should not be read to allow the Agencies to assert 

jurisdiction by rule over waters merely because they are geographically located on lands 

similar to land where traditional navigable waters are also located. Again, this approach 

eliminates the case-by-case analysis required under the Court’s relatively permanent and 

significant nexus tests. Rather, to assert jurisdiction over a particular water based only on 

it being similarly situated, the Agencies must be required to affirmatively demonstrate on 

a case-by-case basis that the regional geography supports a finding that the particular 

waterbody has or will have a significant effect on the chemical, physical, or biological 

integrity of the navigable water. (p. 5)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is based on 

the agencies’ careful examination of the science and the law to make a 

determination of significant nexus for specified waters and to provide that certain 

other waters may be jurisdictional where a case-specific determination has found a 

significant nexus. Preamble, III, and Technical Support Document, I.B, I.C. and II.

Goehring Vineyards, Inc. (Doc. #19464)

10.199 Specific examples of improper expansion of jurisdiction include: 

• Applies a broadened view of Justice Kennedy’s significant nexus standard not only to 

wetlands but also to all waters including tributaries and isolated waters; 

 Finds that a hydrological connection is not necessary to establish a significant 

nexus; 

 Allows the Agencies to “aggregate” the contributions of all similar waters (small 

streams, adjacent wetlands, ditches or certain otherwise isolated waters) within an 

entire watershed, thus making it far easier to establish a significant nexus between 

these small intrastate waters and traditional navigable waters; 

 Regulates all roadside and agricultural ditches that have a channel, have an 

ordinary high water mark, and can meet any of five listed characteristics; 

 Gives new and expanded regulatory status to “interstate waters,” equating them 

with traditional navigable waters, thus making it easier to find jurisdiction for 

adjacent wetlands and waters judged by the significant nexus test; and

 Makes all waters not in any of the other categories (also known as the “other 

waters”) subject to the significant nexus standard. 

This sweeping expansion of federal jurisdiction exceeds federal authority, contradicts 

with explicit U.S. Supreme Court directives, and abrogates existing state authority. (p. 5)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

134

10.200 The Proposed Rule’s examination of separate chemical, biological, and hydrological 

connection, especially in the preamble’s discussion of “other waters,” ignores the 

Supreme Court’s earlier direction in SWANCC, as well as Justice Kennedy’s test for a 

significant nexus in Rapanos. (p. 6)

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C. Consistent with Justice Kennedy’s opinion, the 

rule is based on the agencies’ careful examination of the science and the law to make 

a determination of significant nexus for specified waters and to provide that certain 

other waters may be jurisdictional where a case-specific determination has found a 

significant nexus. Preamble, III, and Technical Support Document, I.B, I.C. and II.

Iowa Poultry Association (Doc. #19589)

10.201 Not only does the proposed rule expand the federal government’s jurisdiction beyond the 

Congressional authority granted in the CWA, the proposed rule also eviscerates 

jurisdictional limitations of the CWA as provided by the United States Supreme Court. In 

two different decisions, the Supreme Court placed limitations on the federal agencies 

authority and told the federal agencies that their interpretation of the CWA was beyond 

the scope of the CWA. In Rapanos, the Supreme Court found that “waters of the United 

States” did not include “channels through which water flows intermittently or 

ephemerally, or channels that periodically provide drainage for rainfall.”187 However, the 

proposed rule would make all tributaries jurisdictional by defining tributaries to 

encompass any water that has a bed, bank and ordinarily high water mark that may 

contribute flow directly or through another water to a traditional navigable water, an 

interstate water or wetland, or territorial sea. Additionally, all tributaries under the 

proposed rule would be jurisdictional without regard to a site specific analysis of whether 

the tributary had a significant nexus to a navigable water as required by the concurring 

opinion in Rapanos. 

The definition of tributary in the proposed rule, by the plain meaning of its terms, could 

encompass ponds, ditches, isolated wetlands, etc. Under the proposed rule even a ditch 

that only has intermittent flow once a year could be jurisdictional if it could drain into 

another jurisdictional water. These are all waters which have not traditionally fallen 

within the jurisdiction of CWA or the authority of EPA and the Corps and are outside the 

limitations expressed by the Supreme Court in not only Rapanos but also in SWANCC. 

The federal agencies have stated that it is not their intention to regulate every ditch, yet, 

the plain language of the rule would allow them to do just that. If the federal agencies 

were truly following the limitations set by the Supreme Court, the rule would only make 

those tributaries with relatively permanent, standing or continuous flow to be 

jurisdictional pursuant Rapanos. (p. 2-3)

Agency Response: The rule is consistent with the statute and Supreme Court 

decisions. Technical Support Document, I.A., B., and C. 

 

187 Rapanos v. U.S., 126 S. Ct. 2208 at 2225 (2006)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

135

New Mexico Cattle Growers Association (Doc. #19595)

10.202 The CWA was enacted pursuant to Congressional authority to regulate interstate 

commerce under Article I, section 8, clause 3 of the United States Constitution—i.e. the 

“Commerce Clause,” which states that Congress may “regulate Commerce with foreign 

Nations, and among the several States, and with Indian Tribes.” See Riverside Bayview 

Homes, 474 U.S. at 133 (“In adopting th[e] definition of navigable waters, Congress 

evidently intended to repudiate the limits that had been placed on federal regulation by 

earlier water pollution control statutes and to exercise its powers under the Commerce 

Clause.”). Accordingly, the scope of jurisdictional authority under the CWA is limited to 

the scope of federal authority under the Commerce Clause. (p. 7)

Agency Response: The rule is consistent with the Constitution. Technical 

Support Document, I.C. 

Association of American Railroads (Doc. #15018.1)

10.203 The Proposed Rule relies on the Water Transfer Rule, which has questionable validity.

The proposed rule relies on the regulatory status of water transfers that existed before the 

release of the pre-proposal draft on March 25, 2014. On March 28, the United States 

District Court for the Southern District of New York issued an order purporting to vacate 

EPA’s water transfer rule, 73 Fed. Reg. 33,697 (June 13, 2008). Catskill Mountains 

Chapter of Trout Unlimited Inc., et al. v. EPA consolidated case Nos. 08-cv-0560 and 08-

cv-9430 (S.D.N.Y., March 28, 2014). The reliance on the vacated water transfer rule is a 

procedural flaw that makes the proposed rules invalid. (p. 14)

Agency Response: The rule is not based on the Water Transfer Rule. The 

foundation of the rule is the significant nexus standard established by the Supreme 

Court in SWANCC and refined in Justice Kennedy’s opinion in Rapanos. The 

agencies have also utilized the plurality standard, primarily in support of the 

exclusions from the definition of “waters of the United States.” Technical Support 

Document, I.C. 

10.204 The Proposed Rule cannot apply retroactively. Absent express Congressional language 

permitting the Agencies to apply the definition of Waters of the United States 

retroactively, the Agencies are constitutionally prohibited from retroactively applying the 

proposed rule’s definition.188 The Agencies must make clear that the applicability of the 

proposed rule is limited to post-rule activities and any prior activities or features would 

not be subject to the proposed rule. (p. 15)

Agency Response: This rule is effective on 60 days after publication in Federal 

Register. Under existing Corps’ regulations and guidance, Corps’ approved 

jurisdictional determinations generally are valid for five years. The preamble 

makes clear that the agencies will not reopen existing approved jurisdictional 

determinations unless requested to do so by the applicant. All jurisdictional 

determinations made after the effective date will be made consistent with this rule. 

 

188 See Landgraf v. USI Film Products, 511 U.S. 244 (1994). See also 33 C.F.R. § 322.4 (Activities not requiring 

permits). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

136

10.205 The Proposed Rule Incorrectly Applies Only Justice Kennedy’s Rapanos Opinion and 

Ignores the Plurality Decision. The proposed rule (and preamble) misinterprets Rapanos

in several key respects and sets forth a “Waters of the United States” definition that does 

not comport with a true reading of the case law. As EPA notes in its preamble, most 

Circuit Courts of Appeals considering Rapanos have held that CWA jurisdiction is 

governed by both Justice Kennedy’s standard and the plurality’s standard. Id. at 22,252. 

However, the plurality decision is only referenced, not applied. EPA has clearly based the 

proposed rule entirely on Justice Kennedy’s opinion. To comply with Supreme Court and 

common law precedent, the proposed rule should only find jurisdiction where both the 

plurality’s and Justice Kennedy’s standards are satisfied. (p.15)

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

The rule is consistent with caselaw. Technical Support Document, I.C.

10.206 Section 311 Does not Include Waters of the United States The Agencies have proposed 

to revise the definition of Waters of the United States for the purpose of Section 311 of 

the CWA. See 40 C.F.R. Part 117. Section 311 addresses “discharge of oil or hazardous 

substances (i) into or upon the navigable waters of the United States, adjoining 

shorelines, or into or upon the waters of the contiguous zone.” 33 U.S.C. § 1321(b)(3). In 

using the term “navigable waters” and “adjoining shorelines,” Congress has expressed the 

clear intent that Section 311 not be applied to the scope of “Waters of the United States” 

which are subject to regulatory provisions. Legislative history regarding Section 311 

supports the interpretation that Section 311 applies to releases from vessels and facilities 

to traditional navigable waters. (p. 15-16)

Agency Response: While section 311 uses the phrase “navigable waters of the 

United States,” EPA has interpreted it to have the same breadth as the phrase 

“navigable waters” used elsewhere in section 311, and in other sections of the CWA. 

See United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979); United 

States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1324-25 (6th Cir. 1974). In 2002, 

EPA revised its regulatory definition of “waters of the United States” in 40 CFR 

part 112 to ensure that the actual language of the rule was consistent with the 

regulatory language of other CWA programs. Oil Pollution & Response; Non –

Transportation-Related Onshore & Offshore Facilities, 67 FR 47042, July 17, 2002. A 

district court vacated the rule for failure to comply with the Administrative 

Procedure Act, and reinstated the prior regulatory language. American Petroleum 

Ins. v. Johnson, 541 F.Supp. 2d 165 (D. D.C. 2008). However, EPA interprets 

“navigable waters of the United States” in CWA section 311(b), in the pre-2002 

regulations, and in the 2002 rule to have the same meaning as “navigable waters” in 

CWA section 502(7).

American Road and Transportation Builders Association (Doc. #15424)

10.207 The Proposed Rule runs counter to Supreme Court precedent. ARTBA has been also 

actively involved in CWA litigation concerning federal jurisdiction over the nation’s 

waters and wetlands for the better part of the past two decades. Most recently, the 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

137

Supreme Court’s decision in Rapanos v. United States189 benefited the transportation 

project delivery process by setting limits on Corps’ jurisdiction. 

At issue in Rapanos were two separate wetlands cases which were consolidated for the 

Court’s review. The Court was asked to decide whether the Clean Water Act allows 

Corps regulation of “isolated wetlands” that have no connection with “navigable waters.” 

The Court was also asked to decide whether or not a tenuous connection between a 

wetland and “navigable water” is enough to allow regulation by the Corps, or if there is a 

minimal standard that should be applied. Once again, ARTBA explained the CWA’s 

legislative scheme of state and federal shared responsibility to the Court: 

“By federalizing any wet area, no matter how remote from navigable waters, [this 

Court would adopt] an unprecedentedly broad jurisdiction of the geographic scope 

of CWA jurisdiction. As this Court held in SWANCC, the courts should be 

hesitant to intrude upon the delicate balance between federal and state regulation 

of land and water resources...In enacting the CWA, Congress did not seek to 

impinge upon the States’ traditional and primary power over land and water use 

when setting out the scope of jurisdiction under the CWA.”190

The Court’s split decision in Rapanos preserved the CWA’s essential jurisdictional 

balance by preventing sweeping federal authority over isolated wetlands and man-made 

ditches or remote wetlands with finite connections to navigable waters. However, 

because the Court’s decision was not issued by a majority of the justices, these issues are 

currently being examined by lower courts on a case-by-case basis. While ARTBA 

applauds the fact the decision prevented an expansion of already inefficient federal 

wetlands regulation, we also recognize the need for clarity in Rapanos’ wake in order to 

preserve the necessary balance between federal and state jurisdictions that is essential to 

the continuation of the CWA’s success. 

In decisions such as Rapanos where four justices agree in both the plurality opinion 

(authored by Justice Scalia) and the dissenting opinion (authored by Justice Stevens) and 

one Justice (Justice Kennedy) writes a concurrence, the effects of the opinion should be 

taken from the areas where the plurality and the concurrence agree. The Supreme Court 

has spoken to this point specifically, stating: 

[w]hen a fragmented Court decides a case and no single rationale explaining the 

result enjoys the assent of five Justices, ‘the holding of the Court may be viewed 

as that position taken by the members who concurred in the judgments on the 

narrowest grounds.’”191

In Rapanos, the five justices who agreed in the final judgment of the case were Justices 

Scalia, Thomas, Alito, Roberts and Kennedy. Thus, in responding to the Rapanos

decision, the focus should be on those areas where agreement can be found among these 

five justices. 

 

189 547 U.S. 715 (2006).

190 Rapanos v. United States, 547 U.S. 715 (2006), Amicus Curiae Brief of the American Road and Transportation 

Builders Association, p. 25. 

191 Marks v. United States, 430 U.S. 188, 193 (1977).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

138

The Scalia plurality and the Kennedy concurrence agree on several points which should 

guide any regulatory or legislative response to the Rapanos decision. Most importantly, 

both Scalia and Kennedy disagreed with the existing Corps theory of jurisdiction that a 

wetland with tenuous and questionable connections to navigable water can be subject to 

federal jurisdiction if one molecule of water flows between both points. This has been 

termed by some as the “migratory molecule” theory of jurisdiction. Justice Kennedy 

specifically rejects the idea of the “migratory molecule” by noting that a “central 

requirement” of the Clean Water Act is “the requirement that the word ‘navigable’ in 

‘navigable waters’ be given some importance.”192

Justice Kennedy also explains the CWA’s establishment of certain basic recognizable 

limits to the Corps’ excluding man-made ditches and drains by refuting portions of 

Justice Stevens’ dissent: 

“[t]he dissent would permit federal regulation whenever wetlands lie alongside a 

ditch or a drain, however remote and insubstantial, that eventually flow into 

traditional navigable waters. The deference owed to the Corps’ interpretation of 

the statute does not extend so far.”193

Further, Justice Kennedy notes such an over-expansive view of the Corps’ authority is 

incompatible with the CWA: 

“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 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 that the isolated ponds held to fall beyond the Act’s scope in SWANCC.”194

This leads to a central point of Rapanos echoed by members of the plurality, dissent and 

Justice Kennedy—there needs to be some sort of regulatory response from the Corps 

reflecting these limits on its jurisdiction. In his concurrence, Justice Kennedy states: 

“Absent more specific regulations, however, the Corps must establish a specific 

nexus on a case-by-case basis when it seeks to regulate wetlands based on 

adjacency to navigable tributaries. Given the potential overbreadth of the Corps 

regulations, this showing is necessary to avoid unreasonable applications of the 

statute.”195

Chief Justice Roberts was more direct with his wording, noting a regulatory response 

from the Corps has been long overdue, and should have been promulgated after the 

Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United 

 

192 Rapanos v. United States, 547 U.S. 715 (2006) (Kennedy, J. concurring).

193 Id. 

194 Id., referring to the holding in SWANCC. 

195 Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

139

States Army Corps of Engineers196 (SWANCC) decision first recognized the jurisdiction 

of the Corps needed to be limited: 

“Rather than refining its view of its authority in light of [the Court’s] decision in 

SWANCC, and providing guidance meriting deference under [the Court’s] 

generous standards, the Corps chose to adhere to its essentially boundless view of 

the scope of its power. The upshot today is another defeat for the agency.”197

Finally, Justice Breyer’s dissent warns a refusal from the Corps to issue a regulatory 

response to Rapanos will only result in more litigation: 

“If one thing is clear, it is that Congress intended the Army Corps of Engineers to 

make the complex technical judgments that lie at the heart of the present cases 

(subject to deferential judicial review). In the absence of updated regulations, 

courts will have to make ad hoc determinations that run the risk of transforming 

scientific questions into matters of law. This is not the system Congress intended. 

Hence, I believe that today’s opinions, taken together, call for the Army Corps of 

Engineers to write new regulations, and speedily so.”198

Thus, the lesson of the Rapanos decision is the need for a response recognizing the limits 

of Corps jurisdiction and clarifying existing wetlands regulations. It is essential for any 

administrative clarification of federal wetlands jurisdiction to preserve the federal-state 

partnership embodied in the CWA. As both Rapanos and SWANCC stressed, a scheme of 

shared jurisdiction is necessary to carry out the original intent of the CWA. States need to 

be allowed to maintain full control over intrastate water bodies in order to allow them the 

flexibility to balance their own environmental needs with unique infrastructure 

challenges. (p. 2-5) 

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

The rule is consistent with statute and caselaw. Technical Support Document, I.A, 

I.B. and I.C. Consistent with Justice Kennedy’s opinion, the rule is not based on the 

“any connection theory” but is instead based on the agencies’ careful examination of 

the science and the law to make a determination of significant nexus for specified 

waters and to provide that certain other waters may be jurisdictional where a casespecific determination has found a significant nexus. Preamble, III, and Technical 

Support Document, I.B, I.C. and II.

North Carolina Aggregates Association (Doc. #6938.1)

10.208 The proposed rule disregards congressional intent and is not consistent with three rulings 

by the Supreme Court regarding the limits of federal jurisdiction. (p. 1)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

 

196 Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 174 

(2001). 

197 Id. (Roberts, C.J., concurring).

198 Id. (Breyer, J., dissenting).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

140

Associated Equipment Distributors (Doc. #13665)

10.209 This NPRM seeks to clarify the definition of “waters of the United States” (WOTUS) 

under the Clean Water Act (CWA)...The proposed rule drastically expands this 

definition and results in the new definition of “waters of the U.S.” including adjacent 

non-wetlands, riparian areas, flood plains and other waters. Such changes contravene 

both the intent and scope of the CWA as well as Supreme Court precedent.

199

In drafting this rule, the EPA failed to follow existing law on numerous counts. 

Consequently, AED requests that the agency withdraw this rulemaking. Should the 

agency desire to amend the definition of “waters of the U.S.” in the future, AED requests 

that it fully comply with CWA authorization, Supreme Court precedent, and RFA 

mandates. (p. 1-2) 

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

American Electric Power (Doc. #15079)

10.210 When the Rapanos v. United States Army Corps of Engineers, et al., 547 U.S. 715 (2006) 

decision was issued in 2006, Justice Roberts warned that the conflicting opinions 

provided by the nine justices created far more confusion in determining what waters fall 

within the definition of "waters of the United States." Id. at 758 (Roberts, J., concurring). 

However, instead of gleaning the limits of the decision and bringing much needed clarity 

to this area, the agencies, although perhaps well intended, have failed to provide 

meaningful instruction within the parameters provided by Rapanos, and the prior 

SWANCC and Riverside Bayview decisions. 200 By issuing the proposed rule, the (See 

Solid Waste Agency of Northern Cook Cty. v. United States Army Corps of Engineers, 

531 U.S. 159 (2001)(SWANCC); United States v. Riverside Bayview Homes, Inc., 474 

U.S. 121 (1985) (Riverside Bayview) agencies are inappropriately attempting to regulate 

outside the statutory limits of the Supreme Court precedent and the Clean Water Act. 

Justice Scalia writes for four justices and Justice Kennedy penned his own opinion to 

form the basis for the reversal of the consolidated Rapanos and Carabell cases (both cases 

dealt with isolated wetlands). In a situation in which there is no clear majority, 

Constitutional and common law principles require interpreting the opinion on the 

narrowest grounds. Marks v. United States, 430 U.S. 188 (1977) (This case was 

referenced in Chief Justice Roberts concurring opinion, Rapanos, 547 U.S. at 758). 

Apparently, ignoring this principle, the agencies appear to have selected one opinion in 

which to base their proposed rule - Justice Kennedy's opinion - and they provide no clear, 

adequate or legal support for doing so.(p.6-7)

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

 

199 See Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) 

(holding that nonnavigable, isolated, intrastate waters that do not actually abut a navigable waterway do not 

constitute "water of the United States" for the purposes of CWA jurisdiction.).

200 See Solid Waste Agency of Northern Cook Cty. v. United States Army Corps of Engineers, 531 U.S. 159 

(2001)(SWANCC); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (Riverside Bayview).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

141

The rule is consistent with statute and caselaw. Technical Support Document, I.A, 

I.B. and I.C. 

10.211 Indeed, the opinion can be reduced to a single holding on the narrowest grounds. First, 

Justices Scalia and Kennedy agreed that when evaluating wetlands, the Corps had gone 

too far in applying the "any connection" theory to jurisdiction. Id. at 742 (plurality) and at 

780-781, (Kennedy, J., concurring). Further, the plurality and Kennedy opinions agreed 

that Congress intended to regulate waters in the traditional sense and, therefore; the term 

"navigable" must be given significance and meaning. Id., at 730-731 (plurality), 779 

(Kennedy, J., concurring). The opinions also agreed that "at least some waters that are not 

navigable in the traditional sense" can be regulated. Id. at 731-732 (plurality), 770 

(Kennedy, J., concurring). Both Justices also expressed concern over expanding 

jurisdiction over features that were distant and remote from "navigable" waters and 

carried minimal flow and warned that mere adjacency is insufficient for establishing 

jurisdiction. Id. at 732 (plurality), 778 (Kennedy, J., concurring). Specifically, with 

respect to wetlands, both opinions required a meaningful relationship between nonabutting wetlands and traditional navigable waters such that there exist more than a mere 

hydrological connection between a wetland and a TNW. Id. at 739 (plurality), 781 

Kennedy, J., concurring). However, the test for evaluating this connection is where the 

plurality and Kennedy opinions part ways with the plurality requiring a relatively 

permanent, standing, or a continuously flowing surface connection to a covered water and 

Kennedy requiring that there be a "significant nexus," i.e., such wetlands significantly 

affect the chemical, physical, and biological integrity of other covered waters more 

readily understood as navigable. Id. at 733 (plurality) and 780. (Kennedy, J., concurring). 

The Marks principle requires that both tests be met. Marks, 430 U.S. at 193. In 

developing the rule the agencies should have followed Marks and identified a single 

holding as the basis of their rule. For reasons not adequately explained, the agencies have 

instead proposed a rule using Justice Kennedy's opinion as a starting point. See 79 Fed. 

Reg22,192. The agencies seem to justify ignoring the limits of the plurality opinion by 

pointing to a footnote to the term "relatively permanent." Id. In that reference, the 

plurality states that in using the term "relatively permanent" they do not intend to exclude 

seasonal rivers or features that "might dry up in extraordinary circumstances". Rapanos, 

547 U.S. at 2221; 79 Fed. Reg. 22,292. The agencies grasp at these statements as 

evidence of the plurality's departure from the continuously flowing requirement. This 

footnote of the plurality opinion by any reading does not justify the agencies' departure 

from the plurality opinion and segue to reliance on Kennedy's significant nexus test. By 

taking this action, the agencies failed to adhere to the Marks decision and consequentially 

proposed rulemaking beyond the authority of the applicable precedent and the bounds of 

the Clean Water Act as set forth in Rapanos. However, even though the agencies claim to 

base their proposed rule on the "significant nexus test" as further defined by Kennedy, 

they clearly expand their rulemaking beyond Justice Kennedy's discussion of jurisdiction 

over wetlands and take the proposed rule's coverage to nonwetland waters. The agencies 

justify expanding the Kennedy opinion to these non-wetland waters by stating that 

"[b]ecause Justice Kennedy identified `significant nexus' as the touchstone for CWA 

jurisdiction, the agencies determined that it is reasonable and appropriate to apply the 

"significant nexus" standard for CWA jurisdiction that Justice Kennedy applied to 

adjacent wetlands to other categories of water bodies (such as to tributaries of traditional 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

142

navigable water or interstate water, and to "other waters") to determine whether they are 

subject to CWA jurisdiction either by rule or on a case-specific basis." 79 Fed. Reg. 

22192. (p.6-7)

Agency Response: The Courts of Appeals that have considered this issue have not 

adopted the position that jurisdiction exists only where both the plurality’s and 

Justice Kennedy’s standards are satisfied. Technical Support Document, 1C. All 

nine of the United States Courts of Appeals to have considered “the narrowest 

grounds” under Marks have stated that Justice Kennedy’s significant standard may 

be used to establish applicability of the CWA. The rule is consistent with caselaw. 

Technical Support Document, I.C.

10.212 The agencies also justify the expansion of their proposed rule to apply to "other waters" 

by relying on the opinion of the four dissenting Justices who concluded that "`waters of 

the United States' "encompasses, inter alia, all tributaries and wetlands that satisfy either 

standard, the plurality's standard or that of Justice Kennedy." 79 Fed. Reg. 22192 

(quoting Rapanos, 547 U.S. at 810 & n. 14 (Stevens, J. dissenting)). This reference also 

seems to explain the agencies' adoption of the either/or opinion approach suggested by 

the dissent; clearly in violation of Marks. Under no terms should the dissent opinion be 

the basis for such a sweeping rulemaking. The rule is legion with examples of the 

agencies' proposing to exceed the authority provided by the plurality and Justice 

Kennedy. In Rapanos, Justice Kennedy directed the Corps to "establish a significant 

nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to 

non-navigable tributaries." Rapanos, 547 U.S. at 782. Justice Kennedy also suggested 

that the Corps "may choose to identify categories of tributaries that, due to their volume 

of flow, their proximity to navigable water, or other relevant considerations are 

significant enough that wetlands adjacent to them are likely, in the majority of cases, to 

perform important functions for an aquatic system incorporating navigable waters." 

Rapanos, 547 U.S. at 781. Notwithstanding Justice Kennedy's directions, the agencies 

have exceeded Justice Kennedy's guida.nce and direction beyond wetlands and proposed 

to extend jurisdictional status to all tributaries and adjacent waters, as the agencies 

propose broadly defining, as well as extend the "significant nexus" case-by-case test to 

"other waters." (79 Fed. Reg. 22201-22206 and 22211 - 22214). Additionally, in 

contradiction of the Rapanos holding, the agencies are proposing to aggregate features or 

determine "similarly situated" waters in a significant nexus analysis claiming that this is 

the guidance suggested by Justice Kennedy. Justice Kennedy, however, was discussing

wetlands only, with no reference to the other features over which the agencies are 

proposing to assert jurisdiction by rule. See 79 Fed. Reg. 22211 (in which the agencies 

discuss defining "other waters" as those waters, including wetlands). The proposed end 

result gives the significant nexus analysis more importance and broader application tha.n 

intended by the plurality or Justice Kennedy. (In fact, one can interpret the plurality 

opinion as a rejection of the "significant nexus" test altogether as applied to the facts in 

the Rapanos case. Rapanos, 547 U.S. at 741-742.) In one last example of overreaching, 

the agencies claim to have carefully considered available scientific literature as 

documented in the agencies' draft connectivity report: "[t]his proposal is also supported 

by a body of peer-reviewed scientific literature on the connectivity of tributaries, 

wetlands, adjacent open waters, and other open waters to downstream waters and the

important effects of these connections on the chemical, physical, and biological integrity 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

143

of these downstream waters." 79 Fed. Reg. 22190. How the agencies were justified in 

proposing a rule based on a draft report is not explained. A review on the adequacy of 

this report was issued by the SAB panel only recently (October 17), however a final 

version of the draft connectivity report has not been issued by the agencies considering 

such comments of the SAB panel or the public. We believe that the agencies should not 

have proposed a rule until the draft connectivity report was final. Proposing a rule in this 

manner goes beyond the agencies' authority, and is in violation of the Administrative 

Procedures Act and manifests serious due process concerns. While there are numerous 

other examples reflected in the proposed rule of the agencies' limitless approach to 

Rapanos and noted in other comments endorsed by AEP, these examples demonstrate the 

un substantiated and expansive interpretation by the agencies of the CWA. Such a broad 

reading and extrapolation bears no resemblance to Justice Kennedy's or the plurality's 

intent or prior Supreme Court precedent on the CWA. See 79 Fed. Reg. 22201-22206 and 

Rapanos, 547 U.S. at 782. (p.7-9)

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

The rule is consistent with caselaw. Technical Support Document, I.C.Consistent 

with Justice Kennedy’s opinion, the rule is not based on the “any connection 

theory” but is instead based on the agencies’ careful examination of the science and 

the law to make a determination of significant nexus for specified waters and to 

provide that certain other waters may be jurisdictional where a case-specific 

determination has found a significant nexus. Preamble, III, and Technical Support 

Document, I.B, I.C. and II. 

The agencies have promulgated a rule consistent with the notice and comment 

requirements of the Administrative Procedure Act. The rule reflects careful 

examination of the science, including the SAB report. The SAB report and separate 

review of the rule were supportive and the agencies extended the comment period 

on the rule after issuance of the SAB reports to allow the public further opportunity 

to comment on the Science Report in light of the reports.

Western States Water Council (Doc. #9842)

10.213 The report should not be used to support a rule that improperly asserts that the scope of 

the CWA is essentially unlimited. We recognize that there are differing interpretations of 

Rapanos, but it is undisputed that the Court rejected the EPA’s and the Corps’ preRapanos interpretation of CWA authority. A rule that attempts to return CWA 

jurisdiction to the pre-Rapanos “status quo,” using the report’s findings of global 

hydrologic connectivity would be contrary to the limits that Congress and the Court have 

established, and would be an improper use of the report and federal rulemaking authority. 

(p. 30)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute, caselaw and the Constitution. Technical Support 

Document, I.A., B., and C. Consistent with Justice Kennedy’s opinion, the rule is 

based on the agencies’ careful examination of the science and the law to make a 

determination of significant nexus for specified waters and to provide that certain 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

144

other waters may be jurisdictional where a case-specific determination has found a 

significant nexus. Preamble, III, and Technical Support Document, I.B, I.C. and II.

San Juan Water Commission (Doc. #13057)

10.214 By using the term "navigable waters" in the Clean Water Act, Congress clearly intended 

to limit federal authority to its traditional Commerce Clause jurisdiction, which, although 

broad, is not limitless. Initially, the Corps regulated only traditional navigable waters. 

Later, the Corps adopted regulations expanding its jurisdiction over navigable waters to 

cover wetlands adjacent to navigable waters. Not until the Corps' adoption of the 

"Migratory Bird Rule" in 1986 did the federal government assert jurisdiction over 

isolated, private waters such as waters that collect in abandoned gravel pits that are not 

located near streams or rivers. The Supreme Court correctly struck down the Migratory 

Bird Rule in Solid Waste Agency of Northern Cook County v. United States Army Corps 

of Engineers, 531 U.S 159 (2001), and the Agencies are bound by this and other Supreme 

Court decisions limiting federal Clean Water Act jurisdiction to navigable waters, their 

tributaries and wetlands with a significant nexus to such waters. For example, in Rapanos 

v. United States, the Supreme Court held there is no Clean Water Act jurisdiction over 

wetlands with no adjacency or "significant nexus" to a traditional navigable waterway. 

547 U.S 715 (2006). (p. 2)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Florida Power & Light Company (Doc. #13615)

10.215 It is improper for the proposed rule to rely solely on Justice Kennedy's opinion, but the 

proposed rule fails to apply even its hallmark test correctly. The proposed rule's

construction is problematic because it misconstrues and misapplies the significant nexus 

standard, resulting in much broader assertions of jurisdiction than Justice Kennedy's 

Rapanos opinion allows. 

Under Juslice Kennedy's standard, the wetlands in question must "significantly affect the 

chemical, physical, and biological integri ty of other covered waters more readily 

understood as 'navigable."' Rapanos, 547 U.S. at 780. The proposed rule provides, "For 

an effect to be significant, it must be more than speculative or insubstantial." 79 Fed. 

Reg. at 22,265. (p. 2-3)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

Utility Water Action Group (Doc. #15016)

10.216 Challenges to the Agencies’ attempts to stretch CWA jurisdiction already have reached 

the Supreme Court three times. In 1985, EPA presented a jurisdictional theory in a 

memorandum concluding that waters could be deemed WOTUS based on their use by 

migratory birds.201 According to a Federal Register notice a year later, the memorandum 

“clarified” that WOTUS include waters that “are or would be used as habitat by [i] birds 

 

201 Memorandum from Francis S. Blake, Gen. Counsel, EPA, to Richard E. Sanderson, Acting Assistant Adm’r, 

EPA, “Clean Water Act Jurisdiction Over Isolated Waters” (Sept. 12, 1985). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

145

protected by Migratory Bird Treaties; or . . . [ii] other migratory birds which cross state 

lines . . . .” 51 Fed. Reg. 41,206, 41,217 col. 1 (Nov. 13, 1986). A 1995 study by the 

Corps demonstrated just how far this theory extended. Under the theory, greater than 

eight million isolated wetlands smaller than half an acre in size across 41 states would be 

jurisdictional because they could be used by migratory birds.202 After the Fourth Circuit 

in 1989 overturned the so-called “Migratory Bird Rule” because EPA had not issued it 

through notice-and-comment rulemaking,203 the Agencies brushed aside the decision as 

“incorrect,” promising to conduct a rulemaking and “expect[ing] [field] offices . . . to 

continue to regulate isolated waters” in the meantime.204 In 1990 guidance, the Agencies 

stated that they would conduct a rulemaking to address jurisdiction over isolated waters 

“as soon as possible.” Id. ¶ 2. They did not follow that promise, however. 

The Migratory Bird Rule remained one of the Agencies’ dominant jurisdictional theories 

supporting broad CWA jurisdiction for the next decade, until the Supreme Court’s 

decision in SWANCC. In SWANCC, the Supreme Court evaluated the Corps’ 

determination of jurisdiction over small isolated ponds, which were created when rain 

filled abandoned sand and gravel pits, based on use of the ponds by migratory birds. 

Rejecting jurisdiction over these ponds – and the Migratory Bird Rule more generally –

the Court explained that the CWA’s use of the term “navigable waters” demonstrates 

Congress’ understanding that its “authority for enacting the CWA [was] its traditional 

jurisdiction over waters that were or had been navigable in fact or which could 

reasonably be so made.” SWANCC, 531 U.S. at 172. The Court acknowledged that 

jurisdiction extends beyond TNWs, but found that the Corps’ attempt to assert 

jurisdiction over isolated waters because they were used as habitat by migratory birds 

was “a far cry, indeed, from the ‘navigable waters’ and ‘waters of the United States’ to 

which the statute by its terms extends.” Id. at 173. The Court further explained that it was 

the “significant nexus between the wetlands and the ‘navigable waters’” to which they 

abutted that informed its prior holding on the reach of the CWA in United States v. 

Riverside Bayview Homes, 474 U.S. 121 (1985), and that Riverside Bayview did not 

establish that the Corps’ jurisdiction “extends to ponds that are not adjacent to open 

water.” SWANCC, 531 U.S. at 167-68. 

Following SWANCC, the Corps and EPA were not dissuaded from asserting broad 

jurisdiction under the CWA. The Agencies did not amend their CWA jurisdictional 

regulations, but instead asserted in litigation and in guidance documents that if a water 

has “any connection” to navigable waters, it could be regulated as a WOTUS. The 

Agencies interpreted SWANCC in a manner that cabined its holding to “isolated 

waters.”205 In an example of remarkably selective reading, the Agencies asserted that if a 

water was not “isolated” – if it connected in any way to navigable waters – the water 

 

202Corps, 1995 Wetlands Delineation Field Evaluation Forms (June 1995). 

203 Tabb Lakes, Ltd. v. United States, 885 F.2d 866 (4th Cir. Sept. 19, 1989) (per curiam) (unpublished disposition).

204 Memorandum from John Elmore, Chief, Dep’t of the Army, Directorate of Civil Works, and David G. Davis, 

Dir., EPA, Office of Wetlands Protection, “Clean Water Act Section 404 Jurisdiction Over Isolated Waters in Light 

of Tabb Lakes v. United States” ¶ 5 (Jan. 24, 1990).

205 Memorandum from Gary S. Guzy, Gen. Counsel, EPA, and Robert M. Andersen, Chief Counsel, Corps, to EPA 

Assistant Adm’r for Water, et al., “Supreme Court Ruling Concerning CWA Jurisdiction Over Isolated Waters” 

(Jan. 19, 2011) (providing the Agencies’ interpretation of SWANCC).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

146

could be regulated as a WOTUS consistent with SWANCC. This “any connection” theory 

in effect expanded upon the assertion of CWA jurisdiction that the Agencies had relied 

upon prior to SWANCC. Ditches, previously excluded from jurisdiction,206 became the 

“connection” of choice. Farm ditches, roadside ditches, flood control ditches – all 

common and abundant across the U.S. landscape – became “tributaries,” itself a term 

undefined in the regulations. These ditches provided the “connection” to areas previously 

considered “isolated,” and therefore provided the Agencies with the “hook” to regulate 

what were in reality still isolated waters. Like the migratory bird test that preceded it, the 

“any connection” theory reached virtually all wet areas – no matter how small or remote 

– because, as a matter of basic science, all water is connected to all other water through 

the hydrological cycle. 

In California’s Central Valley, for example, the Corps determined prior to SWANCC that 

two cattle waste ponds were WOTUS because they were used by migratory birds, while 

acknowledging that a nearby farm ditch was non-jurisdictional.207 After SWANCC, the 

property owner asked the Corps to disclaim jurisdiction over the ponds, only to be told 

that the ditch was now a tributary subject to jurisdiction and, thus, that the waste ponds 

remained jurisdictional – this time because they were “adjacent” to a tributary (the 

previously non-jurisdictional ditch).208 Thus, the Corps expanded its assertion of CWA 

jurisdiction after SWANCC to reach not only the cattle waste ponds but also the farm 

ditch. This change in jurisdictional status was made without any alteration in the 

regulatory definition of WOTUS, demonstrating the extent to which the jurisdictional 

status of features has been established by the exercise of discretion (or “judgment”) by 

the Agencies rather than by the plain language of the CWA or its implementing 

regulations. 

This broadened jurisdictional theory continued even in light of government reports 

showing that the Agencies’ new theories were being used to regulate “isolated” waters. A 

2004 study by the U.S. General Accounting Office documented numerous instances, 

post-SWANCC, in which Corps districts used underground drain tiles, storm drain 

systems, pipes, and even sheet flow (i.e., rainfall runoff moving across the landscape) to 

establish a hydrological connection and thereby assert (or recapture) jurisdiction over 

otherwise isolated features.209 (p. 33-36)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

 

206 See 40 Fed. Reg. 31,320, 31,321 col. 1, 31,324-25 (July 25, 1975); 42 Fed. Reg. at 37,127 col. 3, 37,144 cols. 2-

3.

207 Letter from Justin Cutler, Project Manager, Delta Office, Corps Sacramento Dist., to James Gibson, Gibson &

Skordal at 1 (Aug. 24, 2000); Letter from James Gibson, Gibson & Skordal, to Justin Cutler, Project Manager, Delta 

Office, Corps Sacramento Dist. at 3 (Aug. 17, 2000).

208 Letter from Michael S. Jewell, Chief, California/Nevada Section, Corps Sacramento Dist., to James Gibson, 

Gibson & Skordal at 1 (Aug. 13, 2001). 

209 U.S. General Accounting Office, GAO-04-297, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its 

District Office Practices in Determining Jurisdiction at 24-26 (Feb. 2004), available at 

http://www.gao.gov/assets/250/241520.pdf. 
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10.217 The “any connection” theory was eventually challenged and rejected by the Supreme 

Court in Rapanos. 547 U.S. at 734 (plurality); id. at 781 (Kennedy, J., concurring). The 

plurality rebuffed the Corps’ “‘Land is Waters’ approach to federal jurisdiction.” Id. at 

734 (plurality opinion). Justice Kennedy’s concurrence likewise criticized the Agencies 

for leaving “wide room for regulation of drains, ditches and streams remote from any 

navigable-in-fact water and carrying only minor water volumes towards it,” and for 

asserting jurisdiction over wetlands “little more related to navigable-in-fact waters” than 

the isolated ponds in SWANCC. Id. at 781-82.210

While both the Rapanos plurality and Justice Kennedy’s concurrence rejected the “any 

connection” theory, they did so on different grounds. The plurality (authored by Justice 

Scalia and joined by Chief Justice Roberts and Justices Thomas and Alito) held that the 

CWA confers jurisdiction over only “relatively permanent bodies of water.” Id. at 734. 

Justice Kennedy concluded that the Agencies’ CWA jurisdiction extends only to waters 

with a “significant nexus” to traditional navigable waters. Id. at 767. Justices Stevens, 

Souter, Ginsburg, and Breyer dissented. Id. at 787. 

The Rapanos decision, with no one opinion joined by a majority of the Justices, presents 

an unusual but not unprecedented situation. The manner for determining the controlling 

effect of a plurality decision is set forth in an earlier Supreme Court decision in Marks v. 

United States, 430 U.S. 188 (1977). As explained in Marks, “[w]hen a fragmented Court 

decides a case and no single rationale explaining the result enjoys the assent of five 

Justices, ‘the holding of the Court may be viewed as that position taken by those 

Members who concurred in the judgments on the narrowest grounds . . . .’” Id. at 193-94 

(citing Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). As explained in fuller detail in 

the WAC Comments, the two Rapanos opinions that reached the same judgment 

(collectively, joined by five justices) together establish the precedential effect of the 

decision. 

The plurality and Justice Kennedy applied separate tests to reach the conclusion that the 

“any connection” theory exceeded CWA jurisdiction. The plurality vacated the 

judgments against the Rapanos and Carabell defendants, and Justice Kennedy concurred. 

The Rapanos decision thus recognizes and establishes limits on CWA jurisdiction. To 

determine which waters would satisfy the positions of those five justices who “concurred 

in the judgment” on CWA jurisdiction, both the plurality’s test and Justice Kennedy’s test 

must be considered. Only the waters that meet the plurality’s test would be considered 

jurisdictional by the plurality, and only those waters that meet Justice Kennedy’s test 

would be considered jurisdictional by Justice Kennedy. Thus, those waters that meet both 

tests would be considered jurisdictional by all five of those Justices (i.e., those members 

who concurred in the judgment in Rapanos). 

The judgment of the Court announced by Justice Scalia was to “vacate the judgments” 

against John Rapanos and June Carabell and remand for further proceedings. Id. at 779. 

Because Justice Scalia announced the judgment of the Court, and his opinion was joined 

by three other Justices, his opinion is an appropriate starting point for interpreting the 

 

210 The expression of these concerns by the plurality and Justice Kennedy had no apparent effect on the Agencies in 

the Proposed Rule.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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holding of the Court, as in Marks. Justice Kennedy was the only other Justice to concur in 

the judgment. Justice Kennedy agreed with the plurality opinion on the following points: 

the requirement that the word “navigable” in “navigable waters” must be given some 

importance and effect, id. at 759; Congress intended to regulate at least some waters that 

are not navigable in the traditional sense, id. at 767; the CWA does not reach all 

wetlands, or even “all ‘non-isolated wetlands,’” id. at 799-80; the presence of a 

hydrologic connection to navigable-in-fact waters is not enough, standing alone, to 

support jurisdiction, id. at 784-85; and “mere adjacency to a tributary” is insufficient, id. 

at 786. 

By contrast, Justice Kennedy disagreed with the plurality that CWA jurisdiction extends 

only to permanent standing waters or streams with continuous flow, at least for a period 

of “some months,” and disagreed that CWA jurisdiction does not extend to wetlands 

lacking a continuous surface connection to other jurisdictional waters. Id. at 769. The 

plurality, for its part, did not agree with Justice Kennedy’s “significant nexus” test. 

Accordingly, while there are many waters that would appear to meet both tests (e.g., a 

stream with continuous flow into a traditional navigable water, or a wetland with a 

continuous surface connection to that stream), a water that met only the plurality’s 

permanent standing water or continuous flow/surface connection test or only Justice 

Kennedy’s significant nexus test would not fall within the “narrowest grounds” of the 

positions of the Justices who concurred in the judgment. Only a water that met both the 

plurality’s and Justice Kennedy’s tests would be jurisdictional to the satisfaction of all 

five Justices. Such a water would thereby meet the “narrowest grounds” for interpreting 

CWA jurisdiction under Rapanos.

211

Accordingly, to satisfy both the plurality’s and Justice Kennedy’s tests and thereby come 

within CWA jurisdiction, a water must, for example, meet each of the following 

prerequisites: 

 a water that is a standing water must be relatively permanent; 

 a water that is a stream must have a continuous flow; 

 a water that is a wetland must have a continuous surface 

connection to an otherwise jurisdictional water; and 

 a water must have a significant nexus to a traditional navigable 

water.

The Proposed Rule would extend CWA jurisdiction to a vast number of features that do 

not meet all (and in many cases, do not meet any) of these prerequisites. Accordingly, the 

 

211 Justice Kennedy’s significant nexus test cannot alone be the test for CWA jurisdiction because it was not 

“joined” by the plurality. The supreme law of the land simply cannot be pronounced by a single concurring opinion 

not agreed with by the plurality of justices in rendering a holding. That is, the Marks standard is not the position 

taken by a single justice who concurred in the judgment on the narrowest grounds, but “that position taken by those 

Members” of the Court who concurred in the judgment on the narrowest grounds. 430 U.S. at 193-94. Logically, 

finding “that position” of “those Members” who concurred in the judgment on the “narrowest grounds” – in 

Rapanos a judgment establishing limits on the Agencies’ CWA jurisdiction – entails determining which waters all of 

those Members would agree are jurisdictional. Id. The dissenting opinions do not count toward determining the 

holding of the Court because, of course, those opinions did not join in the “holding of the Court”; they dissented. Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

149

Proposed Rule must be substantially revised to meet these prerequisites, and must be reproposed for public comment. 

Notably, based on concerns with the Agencies asserting jurisdiction without regulatory 

clarity, the Justices were unanimous in calling for rulemaking.212 Yet the Proposed Rule 

is not faithful to Rapanos or other Supreme Court decisions. (p. 36-40)

Agency Response: The Courts of Appeals that have considered this issue have not 

adopted the position that jurisdiction exists only where both the plurality’s and 

Justice Kennedy’s standards are satisfied. Technical Support Document, 1C. All 

nine of the United States Courts of Appeals to have considered “the narrowest 

grounds” under Marks have stated that Justice Kennedy’s significant standard may 

be used to establish applicability of the CWA. The rule is consistent with caselaw. 

Technical Support Document, I.C.

Irrigation and Electrical Districts Association of Arizona (Doc. #15832)

10.218 We ask the agencies to explain which parts of the existing regulatory definition of 

"Waters of the United States" are rendered difficult to use by Supreme Court precedent. 

We make this request because we cannot find in this precedent any assault on the existing 

regulatory definition, not in Riverside Bayview Homes, 474 U.S 121 (1985), not in 

SWANCC, 531 U.S. 159 (2001), and most assuredly not in Rapanos and Carabell, 547 

U.S. 715 (2006). 

In each of these cases, the Court focused on how the agencies interpreted the definition 

concerning their jurisdiction, not perceived flaws in the definition itself. Where the Court 

reined in the agencies, it was for over broad interpretation of the definition. 

Moreover, in two cases last year, the Justice Department opposed, and the Supreme Court 

rejected, expanded plaintiff views of Clean Water Act jurisdiction that, indirectly, 

attacked the current definition. LACFCD v. NRDC, 133 S.Ct. 710 (2013); Decker v. 

NEDC, 133 S.Ct. 1326 (2013). Some of us thought that these positions indicated 

satisfaction with the definition, until the instant Federal Register notice. 

Since redefining Waters of the United States is not being compelled, failure to redefine 

the term now can have no meaningful adverse effect on the continued administration of 

the law by the agencies. The current definition still works. It is the attempt by the 

agencies to stretch the boundaries of the Act and the regulatory definition that have come 

under scrutiny, not the definition itself. (p. 1-2)

Agency Response: The agencies determined that the guidance documents issued 

after SWANCC and Rapanos are not effective in providing the public or agency staff 

with the kind of information needed to ensure timely, consistent, and predictable 

jurisdictional determinations. Many waters are currently subject to case-specific 

 

212 The Justices unanimously agreed that a rulemaking might have avoided this result, and invited the agencies to 

engage in rulemaking going forward. See, e.g., id. at 726 (plurality opinion); id. at 758 (Roberts, C.J., concurring) 

(“Rather than refining its view of its authority” through rulemaking, “the Corps chose to adhere to its essentially 

boundless view of the scope of its power. The upshot today is another defeat for the agency.”); id. at 782 (Kennedy, 

J., concurring); id. at 812 (Breyer, J., dissenting) (calling for the Agencies “to write new regulations, and speedily 

so”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

150

jurisdictional analysis to determine whether a “significant nexus” exists, and this 

time and resource intensive process can result in inconsistent interpretation of CWA 

jurisdiction and perpetuate ambiguity over where the CWA applies. In this rule, 

the agencies are responding to those requests from across the country to make the 

process of identifying waters protected under the CWA easier to understand, more 

predictable, and more consistent with the law and peer-reviewed science. Preamble, 

II. The two cited decisions did not address the definition of "waters of the United 

States."

Basin Electric Power Cooperative (Doc. #16447)

10.219 The United States Supreme Court has twice struck down similar far-reaching definitions 

of "waters of the United States" to what the Agencies are advancing in this rulemaking. 

First in SWANCC,

213 then again in Rapanos,214 the Court plainly determined that a rule 

that attempts to regulate "waters of the United States" as broadly as this rule attempts to 

regulate is a rule that exceeds the Agencies' statutory authority. The plurality in Rapanos

limited the jurisdiction that the phrase "the waters of the United States confers on the 

Agencies to "include only relatively permanent, standing or flowing bodies of water,”215

"as found in 'streams,’ 'oceans,’ 'rivers,’ 'lakes,' and 'bodies' of water 'forming 

geographical features.’”216 "All of these terms connote continuously present, fixed bodies 

of water, as opposed to ordinarily dry channels through which water occasionally or 

intermittently flows. Even the least substantial of the definition's terms, namely, 'streams,' 

connotes a continuous flow of water in a permanent channel-especially when used in 

company with other terms such as 'rivers,' 'lakes,' and 'oceans. "'217

The plurality in Rapanos made clear that the "significant nexus" test enunciated in 

SWANCC was limited to wetlands that abut an adjacent navigable waterway,218 and 

suggested that Justice Kennedy's case-by-case test of whether a particular wetland in a 

particular case had a "significant nexus," even though it was not directly adjacent to a 

waterway, resulted in a vague and confusing case-by-case standard.219 In any event, 

Justice Kennedy's test is limited to case-by- case factual exceptions; it does not allow the 

Agencies to reassert through rulemaking a broad interpretation of "waters of the United 

States" that "stretches the outer limits of Congress's commerce power and raises difficult 

questions about the ultimate scope of that power."

220 In other words, Justice Kennedy's 

exception is a case-by-case exception. It does not open the door to a broad rulemaking of 

the kind that is being attempted here.

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

 

213 Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC).

214 Rapanos v. U.S., 547 U.S 715 (2006). 

215 547 U.S. at 732.

216 547 U.S. at 733.

217 547 U.S. at 733.

218 547 U.S. at 726.

219 547 U.S. at 738, FN9.

220 547 U.S. at 738.
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151

ChooseCleanWater Coalition (Doc. #11773.1)

10.220 When passing the Clean Water Act in 1972, Congress made it clear that the scope of the 

Clean Water Act was to be far-reaching. The Act’s ambitious goal—“to restore and 

maintain the chemical, physical and biological integrity of the Nation’s water”221—

required extensive federal authority over the “Nation’s waters.” The record of Congress’ 

deliberation demonstrates that that Congress intended the Clean Water Act “be given the 

broadest possible constitutional interpretation unencumbered by agency determinations 

which have been made or may be made for administrative purposes.222”Congress 

recognized that “water moves in hydrologic cycles and it is essential that discharge of 

pollutants be controlled at the source.223” Given Congress’ clear intent that the Clean 

Water Act address pollution at its source and its recognition that waters are 

interconnected, the scope of the proposed rule is well within Congressional intent and is 

legal224. (p. 1)

Agency Response: The agencies agree that the rule is consistent with the statute, 

Supreme Court decisions, and the Constitution. Technical Support Document, I.A., 

B., and C. 

10.221 The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers are 

entitled to deference in decisions about the scope of Clean Water Act authority based on 

their expert ecological judgment about the role that certain kinds of waters play in the 

aquatic system225, unless a particular interpretation “invokes the outer limits of Congress' 

power

226.” Where, as here, the proposed rule is based on copious scientific evidence and 

the agencies’ judgment about whether the science reveals a “significant nexus” between 

various categories of waters and downstream navigable or interstate waters, the approach 

is a reasonable and lawful interpretation of the Clean Water Act227. (p. 2)

Agency Response: The agencies agree that the rule is consistent with law and well 

supported by the administrative record. Preamble, III and IV, Technical Support 

Document, I-IX.

Southern Illinois Power Cooperative (Doc. #15486)

10.222 The proposed rule unlawfully expands CWA jurisdiction beyond the limits intended by 

Congress and recognized by the U.S. Supreme Court. The proposed rule ignores the 

Rapanos plurality opinion and misinterprets Justice Kennedy’s significant nexus 

standard. (p.9)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

 

221 33 U.S.C §1251(a)

222 Sen. Conf. Rep. No. 92-1236, 92nd Cong. 2d Sess., reprinted in 1972 U.S Code Cong. & Admin. News 3376 at 

3822.

223 S. Rep. No. 414 92nd Cong., 2d Sess., reprinted in 1972 U.S Code Cong. & Admin. News 3376 at 3822.

224 See Chevron U.S.A. v. NRDC, 467 U.S. 837, 842-843 (1984) (holding that if Congress' intent is clear, the Court 

and the agency must give effect to Congress' unambiguously expressed intent).

225United States v. Riverside Bayview Homes, 474 U.S. 121, 132-35 (1985).

226 Solid Waste Agency of Northern Cook County v. Army CORPS of Engineers, 531 U.S. 159, 172 (2001).

227 Rapanos v. United States, 547 U.S. 715, 767 (2006) (Kennedy, J., concurring).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

152

Washington County Water Conservancy District (Doc. #15536)

10.223 the Supreme Court’s interpretations of the term “waters of the United States” have 

consistently given this meaning to the term “navigable waters”: waters that are or have 

been navigable in fact, or which could reasonably be made navigable. While allowing 

some deference to the Agencies in regulating wetlands that are adjacent to and 

“inseparably bound up with” navigable waters, the Supreme Court’s interpretations have 

recognized that federal jurisdiction under the CWA is limited by the term “navigable 

waters” and by the Act’s policy of preserving the states’ primary authority over land and 

water resources. The Agencies’ interpretations, by contrast, consistently read the term 

“navigable waters” out of the statute and ignore the effect of the Proposed Rule on the 

authority of states. (p. 5)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

10.224 THE AGENCIES’ ANALYSIS OF SUPREME COURT PRECEDENT IS FLAWED.

In light of the language of the CWA and the Supreme Court’s interpretations of the Act, 

the Agencies’ Proposed Rule adopts a definition of “waters of the United States” that is 

overly-broad as a matter of law. The Agencies have stated that “the scope of regulatory 

jurisdiction of the CWA in this proposed rule is narrower than that under the existing 

regulations,”228 but even the Agencies’ own flawed Economic Analysis concludes that 

“the proposed rule increases overall jurisdiction under the CWA . . . over current field 

practices.”229 More importantly, this is not the relevant comparison in evaluating the 

legality of the Proposed Rule. The critical question is not how the Proposed Rule 

compares to existing regulations or historic agency practice, but how it compares to 

existing law, as interpreted by the Supreme Court. When compared to existing law, it is 

clear that the Proposed Rule adopts an expansive interpretation that exceeds the 

regulatory authority Congress granted to the Agencies under the CWA. (p. 8)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute, caselaw and the Constitution. Technical Support 

Document, I.A., B., and C. 

10.225 The Proposed Rule misinterprets and misapplies the concurring opinion in 

Rapanos. In particular, the Proposed Rule gives undue weight to Justice Kennedy’s 

concurring opinion in Rapanos and fails to give any substantive consideration to Justice 

Scalia’s plurality opinion. As a result, the Proposed Rule adopts an interpretation of the 

CWA that conflicts with SWANCC. As noted above, the Court in SWANCC flatly rejected 

the Agencies’ assertion of jurisdiction over “nonnavigable, isolated, intrastate waters” 

and held that CWA jurisdiction does not extend to non-wetland “ponds that are not 

adjacent to” traditional navigable waters.230 Contrary to this clear statement in SWANCC, 

the Agencies have attempted to extend Rapanos beyond its holding to justify the 

 

228 Proposed Rule, 79 Fed. Reg. at 22,192.

229 United States Environmental Protection Agency & U.S. Army Corps of Engineers, Economic Analysis of 

Proposed Revised Definition of Waters of the United States at 12 (Mar. 2014), available at 

http://www2.epa.gov/sites/production/files/2014-03/documents/wus_proposed_rule_economic_analysis.pdf. 

230 SWANCC, 531 U.S. at 168-71
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regulation of waters that are expressly not jurisdictional under SWANCC. Indeed, the 

Agencies’ Proposed Rule could be interpreted to allow regulation of the very same 

isolated pond in Illinois that the SWANCC court said was not jurisdictional. 

As noted above, Rapanos addressed the narrow question of “whether the term ‘navigable 

waters’ in the [CWA] extends to wetlands that do not contain and are not adjacent to 

waters that are navigable in fact,” but may have some other connection to navigable 

waters.231 The Proposed Rule purports to extend this holding to some wetlands with no 

connection to navigable waters, and to other, non-wetland water bodies such as 

intermittent streams and isolated ponds.232 This aspect of the rule directly conflicts with 

SWANCC, and cannot be justified by Justice Kennedy’s concurring opinion in Rapanos, 

particularly since Justice Kennedy joined the majority opinion in SWANCC. 

Moreover, even within the confines of Justice Kennedy’s concurring opinion in Rapanos, 

the Agencies have adopted an overly-broad reading of that concurring opinion. For 

example, Justice Kennedy did not state that the Army Corps could decide to treat all 

tributaries as automatically jurisdictional-by-rule, and his opinion does not support the 

Agencies’ broad, categorical jurisdictional-by-rule approach. In fact, even in the more 

limited context of jurisdictional determinations for the types of wetlands at issue in 

Rapanos, Justice Kennedy expressed concerns about the breadth of such a categorical 

approach in the absence of “more specific” criteria such as the frequency, duration, and 

volume of flow.233

In the Proposed Rule, the Agencies admit that “the frequency, volume, and duration of 

flow are relevant considerations for determining if a water body has the physical 

characteristics suitable for navigation.”234 Despite this statement, however, and despite 

Justice Kennedy’s suggestion that the Agencies should use such factors in evaluating 

jurisdiction over tributaries, the Agencies go on to state that they will not use these 

factors because, in their opinion, they are “not the best measure” of ecological effects.235

This aspect of the Proposed Rule, which allows the Agencies’ ecological judgments 

regarding the cumulative ecological effects of small streams to trump the word 

“navigable” in the Act, is fundamentally inconsistent with the CWA, as interpreted by the 

majority in SWANCC, and with Justice Kennedy’s and Justice Scalia’s opinions in 

Rapanos.(p. 8-10)

Agency Response: The rule is consistent with the statute and case law. Technical 

Support Document, I.A., B., and C. 

 

231 Rapanos, 547 U.S. at 759.

232 Id.

233 Id. At 782.

234 Proposed Rule, 79 Fed. Reg. at 22,200

235 Id. at 22,261 (“Because smaller streams, whether perennial, intermittent, or ephemeral, are much more common 

than larger streams, the volume of a stream’s flow is not the best measure of its contribution to the chemical, 

physical, or biological integrity of downstream waters. . . . As discussed in more detail in Appendix A, small streams 

cumulatively exert a strong influence on downstream waters, partly by collectively providing a substantial amount 

of the river’s water . . . but also by playing unique roles that large streams typically do not, including providing 

habitat for aquatic macroinvertebrates which help maintain the health of the downstream water.” (internal citations 

omitted)).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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Southern Law Center et al. (Doc. #13610)

10.226 This rulemaking is critical because it is imperative that the wetlands regulatory program 

be administered and enforced in a clear and definitive manner. The meaning of the words 

“navigable waters” and “waters of the United States” have been debated since Congress 

passed the Clean Water Act in 1972. Although the agencies have developed regulatory 

definitions for these terms in the past, we now have the benefit of a well-developed body 

of case law, as well a well-developed body of scientific knowledge to shape the 

definition. It is time that the agencies revise the current 1986 regulatory definition and 

put in place a definition that takes into account the legal and scientific developments that 

have transpired over the last three decades. If we are to have a long-term resolution to the 

waters of the United States issue, it needs to happen with this rulemaking. (p. 2)

Agency Response: The agencies agree that the rule will result in the process of 

identifying waters protected under the CWA easier to understand, more 

predictable, and more consistent with the law and peer-reviewed science. Preamble, 

II. 

10.227 Congress intended the regulatory agencies to interpret the term “waters of the United 

States” broadly. The legislative history of the Act demonstrates that in passing the Act, 

Congress meant to protect all the nation’s waters. And the U.S. Supreme Court has ruled 

on the scope of these protections; each time the Court has upheld a broad interpretation of 

the Act. The proposed rule honors these decisions as well as the original intent of 

Congress.

It was appropriate for the regulatory agencies to choose the Kennedy test over the Scalia 

test: There is no requirement that the agencies apply both the Kennedy and Scalia tests. 

The agencies were free to use their discretion to choose the test that would bring the most 

clarity to the program. Also, it is the Kennedy test that is more firmly grounded in 

science.

The Kennedy test only requires one of the criteria—chemical, physical, or biological—to 

establish a significant nexus: Some commenters have suggested that in order for a water 

to be jurisdictional, it must have a chemical, physical, and biological nexus with a 

downstream traditional navigable water (TNW). Although this is not true and would be 

inconsistent with the purpose of the Clean Water Act, the agencies must make a better 

case as to why the correct reading is “or” not “and.” (p. 3) 

Agency Response: The agencies agree that the rule is consistent with the statute 

and decisions of the Supreme Court. Technical Support Document, I.A., I.B. and 

I.C. 

10.228 By passing the Clean Water Act in 1972236, Congress made sweeping changes in how 

water would be regulated in this country. Previously, the states were in charge of keeping 

pollutants out of our waters. Because so many states were reluctant to impose controls on 

factories, sewage treatment plants, and other sources of pollutants, this experiment ended 

poorly. For example, leading up to the passage of the Clean Water Act the Cuyahoga 

 

236 In 1972 the "Clean Water Act" was still labeled the "Federal Waler Pollution Control Act Amendments of 

1972." It was not until the Act was amended in 1977 that the Act was renamed the Clean Water Act.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

155

River in Cleveland was so polluted that it caught fire multiple times. And Lake Erie, the 

fifth largest body of water in this country, had to be put on life support because it was so 

choked with pollutant-caused algal blooms that fish could not survive in its waters. 

In defining the scope of the Act, Congress said that the Act would apply to all “navigable 

waters,” which it defined as the “waters of the United States.” Although the Act does not 

go further to explain these terms, the legislative history clearly does. For example, as the 

House Committee Report for the Act provides: 

One term the committee was reluctant to define was the term “navigable waters.” 

The reluctance was based on the fear that the interpretation would be read 

narrowly. However, this is not the committee’s intent. The committee fully 

intends that the term “navigable waters” be given the broadest possible 

constitutional interpretation unencumbered by agency determinations which have 

been made or may be made for administrative purposes237. 

When EPA promulgated its regulations in 1973 to implement the Section 402 of the Act, 

it defined waters of the United States broadly as the following: 

(1) All navigable waters of the United States;

(2) Tributaries of the navigable waters of the United States;

(3) All interstate waters;

(4) Intrastate lakes, rivers and streams which are utilized by interstate travelers for 

recreation and other purposes;

(5) Intrastate lakes, rivers and streams from which fish or shellfish are taken and 

sold in interstate commerce;

(6) Intrastate lakes, rivers and streams which are utilized for industrial purposes 

by industries in interstate commerce.

238

In this definition, EPA recited almost every connection possible between water and 

commerce. The Corps adopted a much more conservative approach and in its regulations 

stated that Corps jurisdiction under Section 404 of the Act would only extend as far as its 

Section 10 jurisdiction under the Rivers & Harbors Act of 1899. This narrow 

interpretation of the CWA was overturned in the courts soon thereafter.239 Using a phased 

approach, the Corps regulations soon came in line with the EPA definition of waters of 

the United States.240

When the CWA was amended in 1977, the Section 404 program suffered an incredible 

amount of scrutiny within both houses of Congress, yet when the dust settled, Congress 

did not alter its definition for navigable waters, and thus, left intact the EPA and Corps 

definitions for that term as well. Instead of changing the jurisdictional scope of the 

 

237 Additional Views of Representative Edgar and Representative Myers, H.R. Rep. No. 95-139, at 54 (1977); 123 

Cong. Rec. 26725 (daily ed. Aug. 4, 1977) (statement of Sen. Philip Hart (D-Mich.)); 123 Cong. Rec. 10401 (daily 

ed. Apr. 5, 1977) (statement of Rep. William Harsha (D-Ohio)).

238 38 Fed. Reg. 13527, 13529 (May 22, 1973).

239 Natural Res. Defense Council v. Callaway, 524 F.2d 79, 83-85 (2d Cir. 1975).

240 See also 40 Fed. Reg. 31319, 31320 (July 25, 1975); 33 C.F.R. § 209.120(d)(2) and (e)(2) (1976).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

156

Section 404 program, it carved out exemptions for certain activities involved in normal 

farming, ranching, silviculture, and mining.241 (p. 5-6)

Agency Response: The rule is consistent with the statute. Technical Support 

Document, I.A. 

10.229 The three U.S. Supreme Court decisions that interpret waters of the United States, also 

allow for a broad definition of that term. When United States v. Riverside Bayview 

Homes, Inc. was decided, many thought that the question about how broadly the CWA 

protections were to extend was settled for good—the CWA was meant to protect all the 

waters of the United States.242 The case involved adjacent wetlands that were far removed 

from the shores of Lake St. Clair in Michigan, yet the Court determined that these 

wetlands were waters of the United States. In its unanimous decision, the Court held that 

the Corps was properly within its administrative discretion when it determined that 

wetlands adjacent to a “navigable waterway” are jurisdictional even if they are not 

regularly flooded by overflow from the traditional navigable waters. The Court concluded 

that “it was a permissible interpretation of the Act” to conclude that the term “waters of 

the United States” encompasses “all wetlands adjacent to other bodies of water over 

which the Corps has jurisdiction.243”

Drawing from the legislative history of the Act, the Court stated that, “Protection of 

aquatic ecosystems, Congress recognized, demanded broad federal authority to control 

pollution, for ‘water moves in hydrologic cycles and it is essential that discharge of 

pollutants be controlled at the source.’”244 Finally, the Court found it instructive that 

attempts during the 1977 amendments to broaden the definition of waters of the United 

States failed.245 The Court unanimously concluded its decision by stating that it “was 

persuaded that the language, policies, and history of the Clean Water Act compel a 

finding that the Corps has acted reasonably in interpreting the Act to require permits for 

the discharge of fill material into wetlands adjacent to the ‘waters of the United 

States.246’”

The EPA and the Corps interpreted the Riverside Bayview decision to give them the 

authority to regulate all waters across the country where there was a federal hook. The 

result was language in the 1986 joint EPA and Corps regulations that provided that the 

protections of the CWA reached any water that would be used for migratory bird 

habitat.247

This so-called migratory bird rule was challenged when the Solid Waste Agency of 

Northern Cook County (SWANCC) decided that it wanted to construct a solid waste 

landfill in an abandoned gravel mine outside of Chicago. The Corps initially declined to 

assert jurisdiction over the SWANCC site, but when the Corps discovered that migratory 

 

241 Pub. L. No. 95-217 (1977); 123 CONG. REC. 26725 (daily ed. Aug. 4, 1977) (statement of Sen. Philip Hart 

(DMich.)) at 939-40; 123 Cong. Rec. 10401 (daily ed. Apr. 5, 1977) (statement of Rep. William Harsha (D-Ohio)).

242 474 U.S. 121, 106 S.ct. 455 (1985).

243 Id. at 135.

244 Id. at 132-33 (citing S. Rep. No. 92-414, at 77 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3742).

245 Id. At 135.

246 Id at 139. 

247 51 Fed. Reg. 41206, 41217 (Nov. 13, 1986).
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157

birds frequented the numerous ponds at the site, the Corps decided to assert jurisdiction, 

and ultimately denied the permit because it posed a potential threat to drinking water 

supplies and destroyed unmitigatable habitat for migratory birds.248 When SWANCC

reached the Supreme Court, a divided 5-4 Court held that the “migratory bird rule” was 

not an allowable basis for asserting jurisdiction and that the ponds were “a far cry, 

indeed, from the 'navigable waters' and 'waters of the United States' to which the statute 

by its term extends.”249

In short, the Court said that the agencies had been too aggressive in its interpretation of 

waters of the United States. But the Court refused to draw any line short of the migratory 

bird rule. Thus, the SWANCC Court identified a problem with the regulatory program, but 

did little to fix it.

In 2003, the Bush Administration published a guidance document that retracted Corps 

and EPA jurisdiction under the CWA far beyond what the SWANCC Court directed. For 

example, this post-SWANCC guidance directed Corps and EPA staff not to assert 

jurisdiction over “isolated” waters without first obtaining permission from 

headquarters250. No similar instructions were issued to get permission before allowing 

unregulated pollution or destruction of these waters by determining that they were not 

subject to Clean Water Act jurisdiction. More importantly, in practice, the 2003 guidance 

led to the loss of resources. Whenever the agencies themselves determined that waters 

were “isolated,” intrastate, and not traditionally navigable– even where the waters had 

uses other than as habitat by migratory birds–the waters were found to be nonjurisdictional. According to the EPA, about 20 million acres of wetlands were placed at 

risk of losing federal Clean Water Act protections under the 2003 policy.251

In Rapanos the Solicitor General argued to the U.S. Supreme Court that the CWA 

encompasses and protects the non-navigable tributaries of the traditional navigable waters 

and the wetlands adjacent to these tributaries. The Rapanos petitioners and others argued 

that the CWA does not protect non-navigable tributaries and only covers those wetlands 

directly adjacent to traditional navigable waters252. In its decision the Court split 4-1-4.253

The four-justice plurality opinion, which was written by Justice Scalia, concluded that:

“[T]he phrase “the waters of the United States” includes only those relatively 

permanent, standing or continuously flowing bodies of water ‘forming geographic 

features’ that are described in ordinary parlance as “streams[,] . . . oceans, rivers, 

[and] lakes.” The phrase does not include channels through which water flows 

 

248 Solid Waste Agency of N Cook Cnty. v. U.S. Army Co1ps of Eng 'rs, 531 U.S. 159, 165 (200 I).

249 Id. at 173.

250 68 Fed. Reg. 1991, 1997-98 (Jan. 15, 2003) ("field staff should seek formal project-specific HQ approval prior to 

asserting jurisdiction over waters based on other factors listed in 33 CPR 328.3(a)(3)(i)-(iii)").

251 See Eric Pianin, Administration Establishes New Wetlands Guidelines, The Washington Post, Jan. 11, 2003, at

A05.

252 Brief of Petitioners at 12-13, Carabell v. U.S. Army Corps of Eng'rs, (Dec. 2, 2005). (The petitioners in Carabell 

case advanced a more limited argument, claiming that it was impermissible for the Corps to regulate a wetland as 

"adjacent" lo a protected water body- and therefore subject to the Clean Water Act -if it lacked a hydrological 

connection with the water body.)

253 Rapanos v. United States, 126 S.Ct. 2208 (2006). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

158

intermittently or ephemerally, or channels that periodically provide drainage for 

rainfall.”

254

The opinion also would require wetlands to have a “continuous surface connection” to 

jurisdictional waters to be protected.255

Justice Kennedy, who cast the lone middle vote, wrote in his opinion that for a water to 

be protected by the CWA it has to have a physical, biological, or chemical effect on a 

traditional navigable water in order to be protected, in other words, it must have a 

significant nexus with that downstream water.256 In determining whether a particular 

water is jurisdictional, Kennedy stated that it was proper to look at the cumulative impact 

of a water on the nearest downstream traditional navigable water taking into account 

other similarly situated waters in the region.257

Since Rapanos, numerous courts have wrestled with the question of which opinion (or 

opinions) contains the controlling rule of law. For instance, in the First and Eighth 

Circuits, a water is protected under the Clean Water Act if it meets either the plurality 

standard or the “significant nexus” standard258. In the Eleventh Circuit, a water may only 

be covered consistent with the “significant nexus” standard. The Seventh and Ninth 

Circuits both have ruled that the “significant nexus” standard is a sufficient basis to 

uphold jurisdiction, but have not ruled out the use of the plurality standard in appropriate 

circumstances259. The Second, Fifth, and Sixth Circuits have reached decisions in which 

they left to a later case the resolution of whether one of the standards or both are valid 

jurisdictional triggers260. (p. 7-10)

Agency Response: The rule is consistent with caselaw. Technical Support 

Document, I.C. 

National Wildlife Federation (Doc. #15020)

10.230 The Rapanos case involved wetlands connected by surface flow to tributaries that 

eventually flowed into traditionally navigable waters.261 The case involved three sites 

 

254 Id at 2225 (plurality opinion).

255 Id at 2226. 

256 Id at 2248. 

257 Id. 

258 United States v. Robison, 505 F.3d 1208 (11th Cir. 2007), reh 'g denied, 521 F.3d 1319 (11th Cir. 2008); see also 

United States v. Freedman Farms, Inc., 2011 WL 1884000, *7 (E.D.N.C. 2011) (denying reconsideration of jury 

instruction based exclusively on Justice Kennedy's "significant nexus" standard). 

259 United States v. Gerke Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir. 2006) (discussing both standards and 

concluding that Justice Kennedy's is narrower view except in "rare cases[s]" and concluding that Justice Kennedy's 

test "must govern the further stages of this litigation"); N. Cal. Rive1watch v. City of Healdsburg, 496 F.3d 993, 

999- 1000 (9th Cir. 2007) (replacing prior opinion characterizing Justice Kennedy's test as "the controlling rule of 

law" with one that says it is "the controlling rule of law for our case"); but cf. United States v. Moses, 496 F.3d 984, 

990 (9th Cir. 2007) (decision issued three days prior to revision of Healdsburg opinion cites the initial Healdsburg 

opinion and characterizes Justice Kennedy's test as "the controlling rule of law").

260 Cordiano v. Metacon Gun Club, Inc. , 575 F.3d 199, 215-16 (2d Cir. 2009); United States v. Lucas, 516 F.3d 

316, 327 (5th Cir. 2008) (concluding that evidence is sufficient for jury to convict under plurality, "significant 

nexus," or dissent tests, but not indicating which standard, if any, controls); United States. v. Cundiff, 555 F.3d 200, 

210 (6th Cir. 2009).

261 Rapanos, 126 S. Ct. at 2238 (Kennedy, J. concurring).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

159

eleven to twenty miles away from the nearest traditionally navigable water.262 Each site 

involved different tributary types, from a wide perennially flowing natural river, to 

intermittently flowing man-made or man-altered conveyances.263 The related Carabell

case involved a wetland that did not share a documented surface hydrological connection 

with its neighboring tributary, a ditch that carried an indeterminate amount of water about 

a mile to the navigable Lake St. Clair.264

There was no majority opinion in Rapanos. While a majority voted to remand the cases 

back to the lower court for further review, there were divergent and contradictory 

rationales for what standard the lower court should apply. Justice Scalia, writing for the 

plurality, looked mainly to a 1954 dictionary to support his analysis.265 His opinion stated 

the Act’s coverage included “those relatively permanent, standing or continuously 

flowing bodies of water” and “only those wetlands with a continuous surface connection 

to [other regulated waters].”266 Justice Scalia included a footnote stating he does not 

necessarily mean to “exclude seasonal rivers” or waters “that might dry up in 

extraordinary circumstances, such as drought.”267 A recent case has indicated that 

seasonal can be reasonably interpreted based on geographic location.268 Importantly, 

Justice Scalia’s test and rationale for narrowing Clean Water Act jurisdiction was rejected 

by a majority of the Court.

Justice Stevens, writing for a four-member dissent, deferred to the Corps’ current 

categorical regulation of all tributaries and their adjacent wetlands.269 He found:

[T]he Corps has concluded that [wetlands adjacent to other waters, including nonnavigable tributaries] play important roles in maintaining the quality of their adjacent 

waters, and consequently in the waters downstream...Given that wetlands serve these 

important water quality roles and given the ambiguity inherent in the phrase “waters of 

the United States,” the Corps has reasonably interpreted its jurisdiction to cover nonisolated wetlands [such as those at issue in Rapanos and Carabell].270 Justice Kennedy, in 

a solo concurring opinion, largely agreed with Justice Stevens that broad protection under 

the Act is warranted.271 He also rejected the plurality’s jurisdictional test as being 

“without support in the language and purposes of the Act or in our cases interpreting 

it.”272 Yet, Justice Kennedy found that to support jurisdiction for wetlands adjacent to 

certain non-navigable tributaries, a showing needed to be made that such waters have a 

 

262 Id. at 2214 (plurality opinion).

263 Id. at 2238 (Kennedy, J. concurring).

264 Id. at 2239.

265 Id. at 2220-21 (plurality opinion).

266 Id. at 2225, 2226 (emphasis in original).

267 Id. at 2221 n.5 (emphasis omitted).

268 See United States v. Vierstra, 2011 WL 1064426, *4 (D. Id. 2011) (stating that “common sense and common 

usage forged in the Intermountain West and applied to the Government’s evidence would support a finding that the 

Low Line Canal is ‘relatively permanent’”), affirmed 2012 WL 3269211 (9th Cir. Aug. 13, 2012).

269 Rapanos, 126 S. Ct. at 2252, 2265 (Stevens, J., dissenting).

270 Id. at 2257 (citations omitted). Justice Stevens goes on to say that, “I think it clear that wetlands adjacent to 

tributaries of navigable waters generally have a ‘significant nexus’ with the traditionally navigable waters 

downstream.” Id. at 2264.

271 Id. at 2241 (Kennedy J., concurring).

272 Id. at 2242.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

160

“significant nexus” to traditionally navigable waters for jurisdiction to attach.273

According to Justice Kennedy: [W]etlands 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.” When, in contrast, wetlands’ effects on water quality are speculative or 

insubstantial, they fall outside the zone fairly encompassed by the statutory term 

“navigable waters.”274 The dissent stated Justice Kennedy’s test “will probably not do 

much to diminish the number of wetlands covered by the Act in the long run.”275 An 

examination of the test helps explain why the dissent reached this conclusion. First, it is 

important to note how utterly Justice Kennedy rejects the plurality’s restrictive test, 

which is largely unconcerned with the water quality goals of the Act. Justice Kennedy 

accuses the plurality of being “unduly dismissive” of the interests put forth by the 

government.276 Unlike the plurality, who see little value in protecting ephemeral waters, 

dry arroyos, and wet meadows (waters that the plurality characterizes in part as 

“puddles”),277 Justice Kennedy understands that many of these waters warrant 

protection.278 He notes at length that nowhere in the Act is there support for a 

jurisdictional distinction between waters with continuous flow and waters with 

intermittent flow.279 Similarly, he notes that the Act, case law precedent, and ecology fail 

to support the plurality’s insistence on a continuous surface connection between wetlands 

and nearby water bodies.280 Justice Kennedy explains that wetlands perform important 

ecological functions, such as pollutant filtering and flood retention and “it may be the 

absence of an interchange of waters prior to the dredge and fill activity that makes 

protection of the wetlands critical to the statutory scheme.”281 Importantly, in recognition 

of the vital ecological functions wetlands perform, Justice Kennedy wrote that wetlands 

that either individually or collectively impact “the chemical, physical or biological 

integrity”282 of other navigable waters have the requisite “significant nexus” to be 

regulated under the Clean Water Act.283 The ecological functions identified by Justice 

Kennedy include flood retention, pollutant trapping, and filtration.284 Justice Kennedy 

recognized wetlands often perform these important ecological functions even though they 

may be intermittent or ephemeral, or lack a surface connection to other waters.285 Justice 

Kennedy’s test allows for the aggregation of impacts of similarly situated wetlands, 

meaning individually less significant wetlands may be protected if they become 

significant when viewed collectively within a region. Subsequent case law has indicated 

 

273 Id. at 2249.

274 Id. at 2248.

275 Id. At 2264 (Stevens, J. dissenting)

276 Id. at 2246 (Kennedy, J., concurring).

277 Id. at 2221 (plurality opinion).

278 Id. at 2244 (Kennedy, J., concurring).

279 Id. at 2242-43.

280 Id. at 2244

281 Id. at 2245-46.

282 33 U.S.C. § 1251(a).

283 Rapanos, 126 S. Ct. at 2248.

284 Id. at 2248.

285 Id. at 2242-46.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

161

that this term can be interpreted broadly.286 Justice Kennedy also indicated a significant 

nexus to navigable waters can be assumed for certain categories of wetlands. For 

instance, he stated that “[a]s applied to wetlands adjacent to navigable-in-fact waters, the 

Corps’ conclusive standard for jurisdiction rests upon a reasonable inference of 

ecological interconnection, and the assertion of jurisdiction for those wetlands is 

sustainable under the Act by showing adjacency alone.”287 Therefore, wetlands adjacent 

to traditionally navigable waters (TNWs) are categorically covered under Justice 

Kennedy’s analysis, and a case-by-case determination is not needed. 288 Likewise, Justice 

Kennedy suggested wetlands next to certain major tributaries may also be categorically 

covered by the CWA.289 It is only in regards to wetlands adjacent to minor tributaries that 

Justice Kennedy refuses to allow categorical assertion of jurisdiction under the current 

regulations.290 Justice Kennedy also accepts as “reasonable” the Corps current definition 

of adjacent, which includes wetlands that may be separated from other waters by dikes, 

berms, and other natural or manmade barriers.

291 Justice Kennedy does not assert 

categorical regulation of tributaries is no longer permissible, or a case-by-case 

determination of a “significant nexus” to traditionally navigable waters is required to 

regulate any tributary.292 On the contrary, he suggests the current definition of tributary 

“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.”293 As to tributaries, Justice Kennedy only expresses concern about categorically 

extending jurisdiction to all wetlands that are adjacent to any waters that meet the 

regulatory definition of tributaries. Specifically, he writes: [T]he breadth of this standard 

– which seems to leave wide room for the regulation of drains, ditches, and streams 

 

286 See Precon Development Corp. v United States Army Corps of Engineers, 633 F.3d 278, 292 (4th Cir. 2011) 

(“[W]e recognize that Justice Kennedy’s instruction – that ‘similarly situated lands in the region’ can be evaluated 

together – is a broad one, open for considerable interpretation and requiring some ecological expertise to 

administer”).

287 Rapanos, 126 S. Ct. at 2249. Justice Kennedy reiterates “[w]hen the Corps seeks to regulate wetlands adjacent to 

navigable-in-fact waters, it may rely on adjacency to establish its jurisdiction.”

288 This has been confirmed by multiple lower court decisions interpreting Rapanos. See United States v. Cundiff, 

555 F.3d 200, 207 (6th Cir. 2009) (finding that under Justice Kennedy’s opinion assertion of jurisdiction over 

wetlands adjacent to navigable-in-fact waters may be met ‘by showing adjacency alone); Northern California River 

Watch v. Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007) (finding same); United States v. Bailey, 571 F.3d 791, 799 

(8th Cir. 2007) (finding same).

289 Id. at 2248 (“[I]t may well be the case that Riverside Bayview’s reasoning – supporting jurisdiction without any 

inquiry beyond adjacency – could apply equally to wetlands adjacent to certain major tributaries.”).

290 Id. at 2249 (“Absent more specific regulations, . . . the Corps must establish a significant nexus on a case-by-case 

basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries.”).

291 Id. at 2245.

292 Justice Kennedy’s opinion limited his basis for remand to the lower court to the question of “whether the specific 

wetlands at issue possess a significant nexus with navigable waters.” 126 S. Ct. 2252. This contrasts with the 

plurality’s broader basis for remand to determine “whether the ditches and drains near wetlands are ‘waters,’” and 

“whether the wetlands in question” are also jurisdictional. Id. at 2235. This contrast is further indication Justice 

Kennedy may not require a case-by-case significant nexus determination for tributaries. Indeed, as the Federal 

District Court for the District of Idaho recently noted, “It is an open question as to whether Justice Kennedy’s 

concurrence applies in the tributary context.” United States v. Mike Vierstra, 2011 WL 1064526, *5 (D. Id. 2011), 

affirmed 2012 WL 3269211 (9th Cir. Aug. 13, 2012).

293 Id. at 2249. Justice Kennedy never calls into question the significance of major tributaries to traditionally 

navigable waters.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

162

remote from any navigable-in-fact waters and carrying only minor water volumes 

towards it – precludes its adoption as the determinative measure of whether wetlands are 

likely to play an important role in the integrity of an aquatic system comprising navigable 

waters as traditionally understood.294 The dissent would support jurisdiction in every 

instance where Justice Kennedy and the plurality would.295 (p. 14- 18)

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C. 

American Rivers (Doc. #15372)

10.231 The primary objective of the Clean Water Act (“CWA”) is to “restore and maintain the 

chemical, physical, and biological integrity of the Nation’s waters.”296 The CWA 

established a regulatory framework that prohibited point source discharges of pollutants 

into “navigable waters” without a permit. The intent was to limit the amount of pollutants 

entering waterways as well as monitor the kinds of pollutants being discharged. The Act 

asserts federal jurisdiction over “navigable waters,” which are defined under the CWA as 

“waters of the United States, including the territorial seas.”297 This definition was a 

purposeful expansion beyond waters “navigable-in-fact”298 to extend protection to a 

broad array of waters, waterways, and wetlands in the United States. 

The drafters of the CWA on the Senate Committee on Public Works understood the 

connectivity of water systems. Their report states, “Water moves in hydrologic cycles and 

it is essential that discharges of pollutants be controlled at the source.”299 The Committee 

understood that what was discharged upstream would flow downstream and they wanted 

to protect the whole watershed. Additionally, the Conference Report developed by the 

House and Senate Committees emphasizes the comprehensive jurisdiction of the CWA, 

stating that “the conferees fully intend that the term navigable waters be given the 

broadest possible constitutional interpretation unencumbered by agency determinations 

which have been made or may be made for administrative purposes.”300 Congress 

recognized the importance of providing comprehensive protection to U.S. waters and not 

constraining the CWA’s scope to an overly narrow interpretation of navigability. 

Congress intended a broad jurisdictional scope for the CWA, which was upheld by a 

federal court in 1975.301 Following enactment of the CWA, the Environmental Protection 

Agency (“EPA”) and the Army Corps of Engineers (“Corps”) developed regulations to 

define the term “waters of the United States.” Whereas the EPA definition was in line 

 

294 Id.

295 Id. at 2265 (“Given that all four Justices who have joined this opinion would uphold the Corps’ jurisdiction in 

both of these cases – and in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied – on 

remand each of the judgments should be reinstated if either of those tests is met.”) (emphasis in original).

296 33 U.S.C. § 1251(a) (2013).

297 33 U.S.C. § 1362(7) (2013).

298 Waterways are “navigable-in-fact” when, “they are used, or are susceptible of being used, in their ordinary

condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes

of trade and travel on water.” The Daniel Ball, 77 U.S. 557 at 563 (1870).

299 S. Rep. No. 92-414, at 77 (1971).

300 H.R. Rep. No. 92-911, at 131 (1972) (Conf. Rep.).

301 Natural Resources Defense Council v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

163

with the goals of the CWA, the Corps’ definition was significantly narrower in scope, 

covering only traditionally navigable waters. A federal court rejected the Corps’ 

definition, stating that Congress had “asserted federal jurisdiction over the nation’s 

waters to the maximum extent permissible under the Commerce Clause of the 

Constitution. Accordingly, as used in the Clean Water Act, the term is not limited to 

traditional tests of navigability.”302 This was further emphasized in International Paper 

Co. v. Ouellette, in which the Supreme Court determined that, “the Act applies to all 

point sources and virtually all bodies of water...”303

The current regulatory definition of “waters of the United States” includes traditional 

navigable waters, interstate waters, all other waters that could affect interstate or foreign 

commerce, impoundments of waters of the United States, tributaries, the territorial seas, 

and adjacent wetlands.304 It is critical to consider the historical context of jurisdiction 

under the CWA in evaluating proposals to update or revise the definition of “waters of 

the United States” in order to adhere to its intended purpose. (p. 3-4)

Agency Response: The rule is consistent with the statute. Technical Support 

Document, I.A. 

10.232 In Riverside Bayview Homes, Inc. v. United States, the Court was determining the 

validity of the Corps’ interpretation of the regulation defining “waters of the United 

States” and the scope of their jurisdiction under the CWA. The Court was specifically 

looking at whether “adjacent wetlands” are considered to be “waters of the United 

States.” The Court held unanimously, “a definition of ‘waters of the United States’ 

encompassing all wetlands adjacent to other bodies of water over which the Corps has 

jurisdiction is a permissible interpretation of the Act.”305 The Justices found that adjacent 

wetlands have “significant effects on water quality and the aquatic ecosystem...”306 Thus 

the jurisdictional scope of the CWA was confirmed to extend to adjacent wetlands in 

order to protect them and the jurisdictional water to which they are connected from 

degradation. 

In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 

(“SWANCC”) the Supreme Court held that the non-navigable, intrastate, isolated waters 

in dispute (abandoned sand and gravel pits that were filled with water and varied in size 

from one-tenth of an acre to several acres and in depth from several inches to several 

feet) could not be classified as a “water of the United States” based solely on the fact that 

they are a habitat for migratory birds.307 In a 5-4 opinion, the Court held that use of the 

Migratory Bird Rule308 exceeds the Corps’ authority under Section 404 of the CWA.309

 

302 Id.

303 International Paper Company v. Ouellette, 479 U.S. 481, 492 (1987).

304 33 C.F.R. § 328.3 (2013).

305 U.S. v. Riverside Bayview Homes, Inc. 474 U.S. 121, 135 (1985).

306 Id. at n.9.

307 Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 174

(2001). 

308 The Corps ‘attempted to modify the definition of “waters of the United States” in order to clarify the scope of 

their § 404 permit program. The Corps would have their jurisdiction extend to waters, “a) which are or would be 

used as habitat by birds protected by Migratory Bird Treaties; or b) which are or would be used as habitat by other 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

164

The Court stated, “In order to rule for respondents 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.”310 The Court recognized that if 

they were to uphold federal jurisdiction over a waterway based solely on it being a 

habitat for migratory birds then that would abrogate the term ‘navigable’ out of the CWA 

altogether.311 Although the Court held the Corps exceeded its authority here, the holding 

was very narrow and, when applied to later cases, restricts the Corps’ ability to apply 

jurisdiction over isolated waters using only the Migratory Bird Rule.312 This can be 

regarded as allowing the Corps to assert jurisdiction over isolated wetlands, as long as 

their decision is not solely based on the migratory bird rule. (p. 4-5)

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C. 

10.233 In 2006, the Supreme Court addressed the scope of CWA’s coverage for wetlands that 

are not adjacent to traditionally navigable waterways when they consolidated the cases of 

Rapanos v. United States and Carabell v. United States Army Corps of Engineers

(referred to together as “Rapanos”). The Justices issued three decisions with no majority 

opinion. The plurality opinion sets forth a two prong test to determine if a wetland is 

jurisdictional: “First, that the adjacent channel contains a ‘water of the United States,’ 

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.”313 Justice 

Scalia defines “water of the United States” for purposes of the test:

In sum, on its only plausible interpretation, the phrase “the waters of the United 

States” includes only those relatively permanent, standing or continuously 

flowing bodies of water ‘forming geographic features’ that are described in 

ordinary parlance as ‘streams’[,]...oceans, rivers, [and] lakes.’ See Webster’s 

Second 2882. The phrase does not include channels through which water flows 

intermittently or ephemerally, or channels that periodically provide drainage for 

rainfall.314

Under Justice Scalia’s definition, a waterway must flow perennially to be considered a 

“water of the United States” and a wetland must have a “continuous surface connection” 

to that perennial waterway to be jurisdictional. This considerably limits the types of 

waters that the Corps can determine are “waters of the United States,” and thus constrains 

the overall scope of the CWA.

The concurring opinion by Justice Kennedy found that a water or wetland possesses a

“significant nexus” and is thus jurisdictional if, the water “alone or in combination with 

 

migratory birds which cross state lines...” Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. 

Reg. 291, 41217 (Nov. 13, 1986). 

309 SWANCC, 531 U.S. at 159.

310 Id. at 168.

311 Id. at 172.

312 Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of “Waters of the United 

States,” 68 Fed. Reg. 10, 1993 (Jan. 15, 2003). 

313 Rapanos v. United States, 547 U.S. 715, 742 (2006). 

314 Id. at 739. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

165

similarly situated lands in the region, significantly affects the chemical, physical, and 

biological integrity of other covered waters understood as navigable.”315 The significant 

nexus test, when applied to the facts of the case, confirmed that a wetland which “can 

perform critical functions related to the integrity of other waters – functions such as 

pollutant trapping, flood control, and runoff storage” is in fact a “water of the United 

States.”316

The dissent by Justice Stevens gives deference to the Corps and generally agrees with 

Justice Kennedy’s opinion except for the significant nexus approach, which they were 

concerned would be too difficult to prove. The dissent argues that it is enough for 

wetlands to be adjacent to tributaries of navigable waterways for them to also be 

navigable waterways. The dissent illustrates that non-isolated wetlands can “obviously 

have cumulative effects on downstream water flow by releasing waters at times of low 

flow or by keeping waters back at times of high flow. This logical connection alone gives 

the wetlands the ‘limited’ connection to traditionally navigable waters that is all the 

statute requires.”317 Thus, no significant nexus test is needed.

Justice Roberts was part of the plurality opinion but he went out of his way to write a

concurrence to specifically address rulemaking. He stated that the “agencies delegated

rulemaking authority under a statue such as the Clean Water Act are afforded generous 

leeway by the court in interpreting the statute they are entrusted to administer.”318 He 

noted that the EPA and Corps made an effort to initiate a rulemaking after SWANCC but 

that it was never finalized.319 He observed that if the Agencies had completed the 

rulemaking they “would have enjoyed plenty of room to operate in developing some 

notion of an outer bound to the reach of their authority.”320 Justice Roberts stressed the 

deference the Court can give to a rule that defines the scope of the CWA promulgated by 

the Agencies and suggested that if the Agencies had made such a rule than they may not 

have been defeated in Court. Justice Breyer in his dissent also articulated that once the 

Agencies write regulations defining the scope of “navigable waters” then, “the courts 

must give those regulations appropriate deference.”321 We agree with Justice Roberts and 

Justice Breyer and we appreciate EPA and the Corps’ efforts in promulgating a rule now.

The Rapanos decision resulted in three conflicting, or at least contradictory, Supreme 

Court opinions that offer muddled guidance to lower courts and the Agencies as how to 

interpret the term “waters of the United States.” The Circuit Courts have varied widely in 

their interpretation and use of the plurality and concurring opinions, and administrative 

guidance following these decisions has resulted in increased uncertainty and declining 

enforcement.322 (p. 5-7) 

 

315 Id. at 780. 

316 Id. at 779-780; see also 33 C.F.R. § 320.4(b)(2) (2013).

317 Rapanos, 547 U.S. at 808.

318 Id. at 758.

319 Id.

320 Id. 

321 Id. at 811. Deference is appropriate unless the Agency interpretation is unreasonable. See, Chevron U.S.A. Inc. v.

Natural Resources Defense Council Inc., 467 U.S. 837 (1984).

322 Memorandum from Majority Staff, Comm. on Oversight and Gov’t Reform, and Majority Staff, Comm. on
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

166

Agency Response: The rule is consistent with caselaw. Technical Support 

Document, I.C. 

10.234 The absence of a majority opinion in Rapanos has resulted in significant variation in how 

the lower courts have interpreted the split decision. The First, Third and Eighth Circuits 

maintain that water is protected under the law if it meets either the plurality standard or 

the “significant nexus” test.323 The Eleventh and Seventh Circuits maintain that a water 

may be jurisdictional only if it meets the “significant nexus” standard.324 The Fourth 

Circuit and Ninth Circuit have applied the ‘significant nexus’ standard, but have not ruled 

out the use of the plurality standard.325 The Second, Fifth, and Sixth Circuits have not 

conclusively ruled on which standard to use because their particular cases have met both 

standards.326 In seven of those Circuit Court cases the United States Supreme Court was 

asked for certiorari, but it was not granted.327

Courts are seeking guidance as to the meaning of “waters of the United States.” This 

clarification is essential so that jurisdictional determinations can be made in a consistent 

manner throughout the United States. Whether or not a stream or wetland is jurisdictional 

under the CWA should not depend upon the federal circuit court district where it is 

located. (p. 7)

Agency Response: The rule is consistent with caselaw. Technical Support 

Document, I.C. 

10.235 Following both the SWANCC and Rapanos decisions, EPA and the Corps released 

guidance documents to provide directives for field staff interpreting the Supreme Court 

decisions and implementing jurisdictional determinations and agency actions under the 

CWA. Following SWANCC, EPA and the Corps published an Advance Notice of 

Proposed Rulemaking (“ANPRM”) and released a guidance memo to field staff 

specifically focusing on jurisdiction for so-called “isolated,” non-navigable, intrastate 

waters that were the focus of the SWANCC decision. The guidance memo released in 

2003 became effective immediately and required field staff to receive the permission of 

agency headquarters before asserting jurisdiction over “isolated” waters.328 In practice, 

when Agencies determined that waters were “isolated,” even if the water had other 

 

Transportation and Infrastructure to Rep. Henry Waxman, Chairman, House Comm. on Oversight and Gov’t 

Relations, and Rep. James Oberstar, Chairman, House Comm. on Transportation and Infrastructure, Decline of the 

Clean Water Act Enforcement Program (Dec.16, 2008).

323 United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009); United States v. Johnson, 467 F.3d 56, 60 (1st Cir. 

2006); United States v. Donovan, 661 F.3d 174, 182 (3rd Cir. 2011). 

324 United States v. Robinson, 505 F.3d 1208, 1219 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 

F.3d 723, 724 (7th Cir. 2006).

325 Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 1000-1001 (9th Cir. 2007); United States

v. Moses, 496 F.3d 985, 990 (9th Cir. 2007), Precon Development Corp. v. United States Army Corps of Engineers, 

633 F.3d 278, 283 (4th Cir. 2011). 

326 U.S. v. Cundiff, 555 F.3d 200, 208 (6th Cir. 2009); United States v. Lucas, 516 F.3d 316, 327 (5th Cir. 2008).

327 Robert Meltz and Claudia Copeland, Cong. Research Serv., RL33263, The Wetlands Coverage of the Clean 

Water Act (CWA): Rapanos and Beyond 7 (April 22, 2014).

328 Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of “Waters of the United 

States,” 68 Fed. Reg. 1997-98 (Jan. 15, 2003). The document states, “field staff should seek formal project-specific 

HQ approval prior to asserting jurisdiction over waters based on other factors listed in 33 C.F.R. 328.3(a)(i)-(iii).”
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

167

functions beyond its use by migratory birds, the waters were deemed nonjurisdictional.329 

The effect of this guidance was a significant loss of protections for waters that had 

previously been protected under the original and intended reach of the CWA. American 

Rivers and a significant majority of others in the water and advocacy community were 

adamantly opposed to the ANPRM. Fortunately, the Bush Administration never finalized 

that rulemaking effort.330

Following the Rapanos decision, several guidance documents were released by the Corps 

and EPA. The 2008 guidance, issued jointly by EPA and the Corps, imposed significant 

limitations to CWA protections beyond the scope of the Rapanos and SWANCC

decisions. The Agencies chose to construe the Supreme Court decisions to restrict the 

coverage of the CWA instead of using the authority the Court permitted them to maintain 

protective jurisdiction. The guidance required that less than “relatively permanent” 

streams receive a case-by-case significant nexus test to determine jurisdiction.331

Additionally, wetlands adjacent to non-navigable tributaries that are not “relatively 

permanent” and wetlands adjacent to but that do not “directly abut a relatively permanent 

non-navigable tributary” require a case-specific significant nexus analysis.332 The 2008 

guidance considerably undermined protections for small streams and wetlands by 

imposing the significant nexus hurdle to more waterways than necessary. 

In April 2011, EPA and the Corps proposed a new guidance. This guidance was focused 

on protecting smaller waterways in order to keep upstream pollutants from traveling 

downstream.333 American Rivers supported the Agencies’ efforts to clarify the scope of 

the CWA after Rapanos, and offered some minor suggestions that would improve the 

2011 Guidance. We advocated for an improved definition of “tributary” that did not rely 

on the presence of an ordinary high water mark; we asserted that ditches should be 

regulated as tributaries if they acted like tributaries by contributing flow to other bodies 

 

329 See U.S. Gov’t Accountability Office, GAO-05-870, Waters and Wetlands: Corps of Engineers Needs to Better 

Support Its Decisions for Not Asserting Jurisdiction 6 (Sep. 2004), available at 

http://www.gao.gov/assets/250/247705.pdf. The document states, “In the five districts we reviewed, Corps officials 

said they generally do not consider seeking jurisdiction over isolated, intrastate, nonnavigable waters on the sole 

basis of 33 CFR 328 (a)(3) because (1) headquarters has not provided detailed guidance on when it is appropriate to 

use this provision; (2) they believe that headquarters does not want them to use this provision; (3) they were 

concerned about the amount of time that might be required for a decision from headquarters; or (4) few isolated, 

intrastate, nonnavigable waters were in their districts whose use, degradation, or destruction could affect interstate 

commerce.”

330 Press Release, EPA, EPA and Army Corps Issue Wetlands Decision (Dec. 16, 2003), available at 

http://yosemite.epa.gov/opa/admpress.nsf/0/540f28acf38d7f9b85256dfe00714ab0?opendocument. The press release 

states, “After soliciting public comment to determine if further regulatory clarification was needed, EPA and the 

Corps have decided to preserve the federal government’s authority to protect our wetlands. The Agencies will 

continue to monitor implementation of this important program to ensure its effectiveness.”

331 Memorandum from Benjamin H. Grumbles, Assistant Adm’r for Water, E.P.A. and John Paul Woodley, Jr. 

Assistnat Sec’y of the Army, Department of the Army, Clean Water Act Jurisdiction Following the U.S. Supreme 

Court’s Decision in Rapanos v. United States and Carabell v. United States 7 (Dec. 2, 2008), available at 

http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA_Jurisdiction_Following_Rapa

nos120208.pdf. 

332 Id. at 8.

333 U.S. EPA and Army Corps of Engineers, Draft Guidance on Identifying Waters Protected by the Clean Water 

Act (April 27, 2011), available at http://www.epa.gov/tp/pdf/wous_guidance_4-2011.pdf. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

168

of water protected by the CWA; we requested that the Agencies make adjacent wetlands 

categorically covered by law; and we asked that “other waters” be looked at in terms of 

their aggregate effect on the watershed. Unfortunately, the 2011 Guidance was never 

implemented and the 2008 Guidance is currently the controlling document. While we 

appreciated the Agencies’ effort to clarify jurisdiction through the guidance documents, 

we proposed that a rulemaking would be better due to the deference it would be given in 

court. We commend the Agencies for moving forward with a proposed rulemaking. 

The Rapanos and SWANCC decisions, along with the resulting administrative guidance 

documents, have created an atmosphere of uncertainty among EPA and the Corps when 

enforcing the CWA and making jurisdictional determinations. An EPA memorandum 

reported that in a period of less than two years, approximately 500 enforcement cases 

were adversely affected due to unclear jurisdictional requirements following the Supreme 

Court decisions.334 The memo breaks down the missed opportunities to 304 instances 

where enforcement of CWA violations were not pursued because of jurisdictional 

uncertainty, 147 instances where the enforcement priority of a case was lowered because 

of jurisdictional concerns, and 61 cases where a lack of CWA jurisdiction was asserted as 

an affirmative defense in an enforcement proceeding.335 It is clear that uncertainty 

surrounding “waters of the United States” jurisdictional determinations is suppressing 

enforcement of the CWA. 

The EPA memorandum also states that the biggest burden to enforcement, post-Rapanos, 

is the presumption that intermittent and ephemeral tributaries to traditionally navigable 

waters and headwater wetlands are non-jurisdictional.336 That presumption can only be 

overcome by a “significant nexus” analysis, which takes a considerable amount of 

resources.

337 For example, in order to make a jurisdictional determination, a large sum of 

money must be spent to model flow and conduct field investigations.338 This added 

expense is impeding the Agencies’ ability to enforce CWA requirements and protect 

vulnerable streams and wetlands.

In 2009, the EPA Inspector General reported that Rapanos created considerable 

uncertainty for the Corps’ permitting program and EPA’s compliance and enforcement 

actions.339 Jurisdictional issues, analytical and data needs, and vague key terms such as 

“traditional navigable waters” and “adjacency” hindered their work.340 The report also 

discovered that many EPA regional offices are struggling with the fact that Rapanos has 

raised the bar on establishing CWA jurisdiction and, as a result, more resources and time 

 

334 Memorandum from Granta Nakayama, EPA Assistant Adm’r for Enforcement and Compliance Assurance to 

Benjamin Grumbles, EPA Assistant Adm’r for Water, OECA’s Comments on the June 6, 2007 Memo, Clean Water 

Act Jurisdiction Flowing the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United

States 2 (March 4, 2008), available at http://www.eenews.net/assets/2012/04/18/document_gw_01.pdf. 

335 Id.

336 Id. 

337 Id. 

338 Id. 

339 U.S. EPA, Office of Inspector General, NO.09-N-0149, Congressionally Requested Report on Comments Related 

to Effects of Jurisdictional Uncertainty on Clean Water Act Implementation (April 30, 2009), available at 

http://www.epa.gov/oig/reports/2009/20090430-09-N-0149.pdf. 

340 Id. at 1.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

169

are required to put together a strong case for the Department of Justice (“DOJ”).341 Even 

if the EPA regional office can find jurisdiction without a significant nexus determination, 

the DOJ often requests one anyway because, in light of Rapanos, they feel they need it to 

support their case.342 As regional offices expend limited resources to test the presence of 

a “significant nexus,” enforcement declines and puts our rivers, wetlands, streams, and 

lakes, and the communities that rely upon them, at risk. 

Many of the problems cited above will be addressed through a definition of “waters of 

the United States” that restores Congress’ original intent. The Economic Analysis of 

Proposed Revised Definition of Waters of the United States asserts that government 

programs are going to benefit from the avoided cost of case specific jurisdiction 

evaluations.343 The permitting process will be improved with more consistency, 

predictability, and timeliness.344 The proposed rule will also aid in comprehensive 

enforcement which will lead to better compliance due to better certainty in what is a 

“water of the United States,” and what is not. While the estimated cost of implementing 

the proposed rule is $162 to $278 million dollars, EPA calculates that this will be far 

outweighed by $338 to $514 million in likely benefits.345 These numbers, while taking 

into account the economic benefits such as government savings on enforcement and 

savings from reduced uncertainty, do not fully capture the importance of the provision of 

clean water. We believe that the overall impact that the rule will have on our environment 

is something that is invaluable. (p. 8-11) 

Agency Response: The agencies agree that the rule will result in the process of 

identifying waters protected under the CWA easier to understand, more 

predictable, and more consistent with the law and peer-reviewed science. Preamble, 

II. The agencies agree that the benefits of the rule exceed the costs. Preamble, V 

and Economic Assessment in the docket. 

Sierra Club (Doc. #15446)

10.236 With regard to the science, we believe it is unassailable. The term “connectivity” in the 

scientific report clearly comports with Justice Kennedy’s “significant nexus” requirement 

in Rapanos. Because there was no majority opinion in Rapanos, Justice Kennedy’s 

concurring opinion was the controlling opinion. See, Graham v. Florida, 560 U.S. 48, 59-

60, 130 S.Ct 2011, 2021-22 (2010); Marks v. United States, 430 U.S. 188, 97 S.Ct. 9990

(1977). (p. 1-2)

Agency Response: The agencies agree that the rule is consistent with caselaw. 

Technical Support Document, I.C.

 

341 Id. at 2.

342 Id. at 6.

343 U.S. Environmental Protection Agency and Army Corps of Engineers, Economic Analysis of Proposed Revised 

Definition of Waters of the United States (March 2014), available at 

http://www2.epa.gov/sites/production/files//2014-03/documents/wus_proposed_rule_economic_analysis.pdf. 

344 Id. at 10.

345 Id. at 44, exhibit 28.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

170

Southeastern Legal Foundation, Inc. (Doc. #16592)

10.237 Under the CW A, federal jurisdiction extends to "navigable waters," defined in the statute 

as "waters of the United States, including the territorial seas.''346 Certain categories of 

WOTUS, including waters which are navigable-in-fact, the territorial seas, and interstate 

waters and interstate wetlands (collectively referred to as "Traditional Waters"), are 

unquestionably jurisdictional. The limits beyond Traditional Waters, however, of what is 

and is not a WOTUS, have been at issue for decades. Three Supreme Court cases over the 

last thirty years have addressed this issue head-on. In addition, Congress has been 

presented numerous opportunities to weigh in on the definition of WOTUS by expanding 

federal jurisdiction, but in all instances has declined to do so. While there may be debate 

about the legal line separating jurisdictional from non-jurisdictional waters, Supreme 

Court precedent makes it crystal clear that, wherever that line may lie, it is well shy of the 

jurisdiction-expanding boundary drawn by the Agencies' Proposed Rule. 

To understand the legal background against which the Proposed Rule was drafted, it is 

critical to focus on the Supreme Court precedent addressing WOTUS. The first case to 

address WOTUS was United States v. Riverside Bayview Homes, Inc.

347

 In Riverside, the 

Court was asked to determine whether a wetland that "was adjacent to [Traditional 

Waters]" was a WOTUS.348

Finding that "the transition from water to solid ground is not necessarily or even typically 

an abrupt one," and that "the Corps must necessarily choose some point at which water 

ends and land begins," the Court held that WOTUS included wetlands "inseparably 

bound up with" and "actually abut[ ting] [Traditional Waters ]."349

Although the Riverside decision dealt with the understandable difficulty of line drawing 

in a gradual change from water to land, the Agencies seized upon the decision to launch 

an expansion of their authority. As part of this new effort, the Corps introduced the 

"Migratory Bird Rule" in 1986 to "clarify" the reach of its jurisdiction.350 Under the 

Migratory Bird Rule, the Corps could extend jurisdiction to any intra-state waters 

"[w]hich are or would be used as habitat" by migratory birds. The Supreme Court 

addressed both isolated wetlands and the Migratory Bird Rule in Solid Waste Agency v. 

United States Army Corps of Engineers, the second Supreme Court case to assist in 

defining the boundaries of WOTUS.351 In SWANCC, the Court held "nonnavigable, 

isolated, intrastate waters" were not jurisdictional based solely on the presence of 

migratory birds.352 The Court based this decision on the plain text of the Clean Water 

Act, holding that whatever Congress might have intended it could not possibly include 

isolated pothole ponds as "navigable" waters.353 Although not basing its holding on the 

point, the Court also stated that any other interpretation would raise serious constitutional 

 

346 CWA at 502(7). 

347 474 U.S. 121 (1985) (Riverside). 

348 Id. At 131. 

349 Id. At 135, 137. 

350 51 Fed. Reg. 41, 217. 

351 531 U.S. 159 (2001) (SWANCC). 

352 Id. At 171.

353 Id. At 174. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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questions.354 Notably, the SWANCC Court held that Riverside did not establish "that the 

jurisdiction of the Corps extends to ponds that are not adjacent to open waters."355 In 

addition, for the first time, as discussed in more detail below, the SWANCC Court 

introduced the term "significant nexus" into the WOTUS parlance. When referencing its 

decision in Riverside, the SWANCC Court stated "[i]t was the significant nexus between 

the wetlands and 'navigable waters' that informed our reading of the CWA in 

[Riverside]."356 

With their authority smartly cuffed, one might think the Agencies would relent on further 

assertions of expansive power. Not so. The third Supreme Court case to discuss the 

definition of WOTUS, Rapanos v. United States Army Corps of Engineers, is the main 

reason for the Proposed Rule.357 Like the SWANCC Court before it, the Rapanos court 

also invalidated the Corps' assertion of jurisdiction over wetlands. Rapanos involved the 

consolidation of two separate cases based on similar fact patterns and a similar issue: 

whether wetlands situated a great distance from Traditional Waters that drain through 

several features before eventually reaching Traditional Waters are jurisdictional. In a 4-1-

4 plurality opinion, five justices (the four justices joining the plurality opinion issued by 

Justice Scalia and Justice Kennedy in his concurrence) held that the Corps' hydrologic 

connection theory of jurisdiction was impermissible. Looking back on its decision in 

Rapanos, the Supreme Court subsequently stated "we considered whether a wetland not 

adjacent to [Traditional Waters] fell within the scope of the [CWA]. Our answer was no, 

... "358 The Rapanos plurality held that WOTUS "cannot bear the expansive meaning that 

the Corps would give it."359 In addition,"[w]etlands with only an intermittent, physically 

remote hydrologic connection to [WOTUS] .... lack the necessary connection" to be 

considered jurisdictional.360 Similarly, Justice Kennedy's concurrence found that "[t]he 

Corps' theory of jurisdiction in these consolidated cases - adjacency to tributaries 

however remote and insubstantial - raises concerns that go beyond the holding of 

Riverside ... , and so the Corps' assertion of jurisdiction cannot rest on that case."361 And, 

directly relevant to the Proposed Rule, "[m]ere hydrologic connection should not suffice 

in all cases; the connection may be too insubstantial for the hydro logic linkage to 

establish the required nexus with [Traditional Water]."362 The Court vacated the Sixth 

Circuit's ruling upholding the Corps' jurisdiction over the wetlands. 

 

354 Id. at 162, 174. "There are significant constitutional questions raised by respondents' application of their 

regulations, and yet we find nothing approaching a clear statement from Congress that it intended § 404(a) to reach 

an abandoned sand and gravel pit such as we have here."

355 Id. at 168. While the term "open waters" is not defined, there is reason to believe that open waters is co-existent 

with Traditional Waters. See, e.g., Kaiser Aetna v. US, 444 U.S. 164, 190 (1979) (the Maunaloa Bay, a Traditional 

Water, is an "open water"); Kotch v. Board of River Pilot Comm 'rs, 330 U.S. 552, 558 (1947) (pilots move ships 

from "open waters" to local waters).

356 SWANCC, 531 U.S. at 167.

357 547 U.S. 715 (2006).

358 Sackett v. Environmental Protection Agency, 123 S. Ct. 1367, 1370 (2012).

359 Rapanos, 547 U.S. at 732.

360 Id. at 742.

361 Id.at 780.

362 Id. at 784-85.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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Despite reaching a majority to strike down the Corps' hydrologic connection theory, the 

Court could not reach a majority regarding the proper test for CWA jurisdiction. The 

plurality held that the "only plausible interpretation" of WOTUS "includes only those 

relatively permanent, standing or continuously flowing bodies of water. .. that are 

described in ordinary parlance as streams, oceans, rivers and lakes."363 Specific to 

wetlands, the plurality held that "only those wetlands with a continuous surface 

connection to bodies that are [WOTUS] in their own right, so that there is no clear 

demarcation between 'waters' and wetlands" are covered by the CWA.364

Justice Kennedy's test took a different approach. Seizing on the term "significant nexus" 

as first used in SWANCC to explain the relationship between wetlands physically abutting 

Traditional Waters in Riverside, Justice Kennedy held that "the Corps' jurisdiction over 

wetlands depends upon the existence of a significant nexus between the wetlands in 

question and [Traditional Waters ]."365

As discussed in more detail below, the Proposed Rule fails under both branches of 

Rapanos. First, the Proposed Rule not only ignores the standard articulated by the 

plurality, it includes a scope of jurisdiction that the plurality described as "beyond 

parody.”366 Second, the Proposed Rule misapplies Justice Kennedy's concurring opinion 

and his "significant nexus" test even while professing to rely on it. What the Proposed 

Rule does, once again, is to take a legal standard constructed to limit and restrain the 

government's authority, turned it on its head, and taken the standard as license for even 

greater jurisdiction. 

SLF submits that in light of the legal framework applicable to CWA jurisdiction, and the 

repeated rebuke of the Agencies by the Court, there is no apparent way to rehabilitate the 

Proposed Rule and the only sensible course of action is to withdraw it in its entirety and 

start over. Out of an abundance of caution, however, SLF also submits the following 

comments on the deficiencies with the Proposed Rule. (p. 3-8)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

Competitive Enterprise Institute (Doc. #15127)

10.238 The Proposed Rule exceeds the Agencies’ statutory authority under the Clean Water Act. 

The proposed rule continues “the immense expansion of federal regulation of land use 

that has occurred under the Clean Water Act—without any change in the governing 

statute.” Rapanos, 547 U.S. at 722 (plurality opinion). The proposed rule adopts a view 

 

363 Id. at 739. (internal quotations omitted).

364 Id. at 740 (emphasis in original).

365 Id. at 811.

366 By calling an "ephemeral stream" a WOTUS, "the Corps has stretched the term [WOTUS] beyond parody." Id. at 

734. "The plain language of the statute simply does not authorize this 'Land is Waters' approach to federal 

jurisdiction." Id. Yet, the Proposed Rule provides that "ephemeral tributaries, including dry-land systems in the arid 

and semi-arid west" can be jurisdictional. Fed. Reg. at 22,202. See also "The great majority of tributaries are 

headwater streams, and whether they are perennial, intermittent, or ephemeral, they play an important role in the 

transport of water..." Fed. Reg. at 22,201. 
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of the Agencies’ jurisdiction that is, as the plurality opinion in Rapanos described, 

basically unbounded:

The Corps has also asserted jurisdiction over virtually any parcel of land 

containing a channel or conduit—whether man-made or natural, broad or narrow, 

permanent or ephemeral—through which rainwater or drainage may occasionally 

or intermittently flow. On this view, the federally regulated “waters of the United 

States” include storm drains, roadside ditches, ripples of sand in the desert that 

may contain water once a year, and lands that are covered by floodwaters once 

every 100 years. Because they include the land containing storm sewers and 

desert washes, the statutory “waters of the United States” engulf entire cities and 

immense arid wastelands. In fact, the entire land area of the United States lies in 

some drainage basin, and an endless network of visible channels furrows the 

entire surface, containing water ephemerally wherever the rain falls. Any plot of 

land containing such a channel may potentially be regulated as a “water of the 

United States.” Id.

Accordingly, the proposed rule exceeds the limits of the Agencies’ statutory jurisdiction 

for the reasons stated in the plurality opinion. “‘[T]he waters of the United States’ include 

only relatively permanent, standing or flowing bodies of water. The definition refers to 

water as found in ‘streams,’ ‘oceans,’ ‘rivers,’ ‘lakes,’ and ‘bodies’ of water ‘forming 

geographical features.’ All of these terms connote continuously present, fixed bodies of 

water, as opposed to ordinarily dry channels through which water occasionally or 

intermittently flows.” Id. at 732–33 (footnote and citation omitted). Yet the proposed rule 

sweeps up so called “tributaries” that are, at most, the sites of ephemeral and intermittent 

flows. Likewise, it sweeps up sites that lack even ephemeral or intermittent flows merely 

because they are within the “region” of actual bodies of water. The Agencies, however, 

lack the statutory authority to assert jurisdiction over “transitory puddles or ephemeral 

flows of water,” much less land that lacks even those water features. Id. at 733. 

Accordingly, the proposed rule is ultra vires. 

As the plurality opinion explains, this broad assertion of jurisdiction also directly 

conflicts with the CWA’s definition of “point source.” See id. at 735–36. A “point 

source” is “any discernible, confined and discrete conveyance, including but not limited 

to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, 

concentrated animal feeding operation, or vessel or other floating craft, from which 

pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The Act also defines 

“discharge of a pollutant” as “any addition of any pollutant to navigable waters from any 

point source.” §1362(12)(A). Thus, “point sources” and “navigable waters” must 

comprise, under ordinary principles of statutory interpretation, separate and distinct 

categories. Yet the proposed rule depends on a reading of “navigable waters” that 

encompasses all or nearly all point sources. Because that reading is precluded by the 

statutory text’s separation of “navigable waters” and “point sources,” the proposed rule is 

ultra vires. 

Were there any doubt regarding these statutory questions, it is resolved by the CWA’s 

statement that it is “the policy of the Congress to recognize, preserve, and protect the 

primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, 

[and] to plan the development and use (including restoration, preservation, and 
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174

enhancement) of land and water resources . . . .” § 1251(b). The Agencies’ broad reading 

of “waters of the United States” to assert control over the development and use of land in 

entire watershed “regions” is flatly inconsistent with the Act’s stated policy and therefore 

must be rejected. That, in turn, renders the proposed rule ultra vires. (p. 8-9)

The Proposed Rule violates even the broadest reading of Rapanos. Rapanos has no single 

controlling opinion. Rather, the majority was split between a four-Justice plurality 

authored by Justice Scalia and a special concurrence (i.e., concurring in the judgment 

only) by Justice Kennedy. 

Both the four-Justice plurality and Justice Kennedy’s concurrence agree that the terms 

“navigable waters” and “waters of the United States” in the CWA encompass more than 

waters that are either navigable in fact or potentially navigable. Rapanos at 730–31, 767. 

They diverge, however, when it comes to determining which non-navigable waters fall 

under the definition of “the waters of the United States.” As described above, the 

plurality opinion correctly states a practically administrable test based on the physical 

characteristics of the bodies of water in question. 

By contrast, Justice Kennedy’s concurrence introduces a “significant nexus” test for 

CWA jurisdiction. This test, he writes, should to be used to determine which nonnavigablein- fact waters fall under the definition of “waters of the United States.” Noting 

that “Congress enacted the law to ‘restore and maintain the chemical, physical, and 

biological integrity of the Nation’s waters,’” Justice Kennedy concludes that Congress 

gave the Agencies authority over both the nation’s waters and those areas that are critical 

to the integrity of the nation’s waters. Id. at 779 (Kennedy, J., concurring) (quoting 33 

U.S.C. § 1251(a)). He insists that the Agencies demonstrate that any non-navigable 

waters they seek to regulate have a significant hydrologic connection, or “significant 

nexus,” to the nation’s navigable waters. 

Obvious though it may be, it bears emphasizing: the “significant nexus” test Justice 

Kennedy proposes requires that the nexus be, well, significant. To regulate waters beyond 

those immediately adjacent to the nation’s waters, the Agencies must demonstrate a 

hydrologic nexus that is more than “speculative or insubstantial.” Id. at 780 (Kennedy, J., 

concurring). “Given the potential overbreadth of the [Agencies’] regulations, this 

showing is necessary to avoid unreasonable applications of the statute.” Id. at 782 

(Kennedy, J., concurring). As a consequence, Justice Kennedy’s test would preclude the 

Agencies from “regulat[ing] drains, ditches, and streams remote from any navigable-infact water and carrying only minor water volumes toward it.” Id. at 780–81 (Kennedy, J., 

concurring). 

The EPA has taken the official position that both the four-Justice plurality and Justice 

Kennedy’s concurrence form the controlling legal test in Rapanos. Envtl. Prot. Agency, 

Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos 

v. United States & Carabell v. United States, at 3 (Dec. 2, 2008), available at 

http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA_J 

urisdiction_Following_Rapanos120208.pdf (last visited Nov. 12, 2014). In other words, 

in the agency’s view, “regulatory jurisdiction under the CWA exists over a water body if 

either the plurality’s or Justice Kennedy’s standard is satisfied.” Id. 
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The proposed rule, however, scrupulously avoids stating which opinion (or opinions) the 

Agencies believe to be controlling. At the least, the Agencies appear to have adopted the 

position that the entirety of Justice Kennedy’s concurrence may be relied upon because it 

received the support of “a majority of justices in Rapanos.” 79 Fed. Reg. at 22,260. But 

the “Marks Rule,” provides that “[w]hen a fragmented Court decides a case and no single 

rationale explaining the result enjoys the assent of five Justices, the holding of the Court 

may be viewed as that position taken by those Members who concurred in the judgments 

on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977). There is no 

basis to describe the entirety of Justice Kennedy’s concurrence as “that position taken by 

those Members who concurred in the judgments on the narrowest grounds.” Id. Instead, 

under proper application of Marks, “the concurring opinion of Justice Kennedy, and the 

grounds of agreement between Justice Kennedy and the plurality opinion authored by 

Justice Scalia, form the holding of the Court.” Hearing Concerning Recent Supreme 

Court Decisions Dealing with the Clean Water Act Before the S. Subcomm. on Fisheries, 

Wildlife and Water of the S. Comm. on Environment and Public Works, 109th Cong. 4 

(2006) (written 10 statement of Jonathan H. Adler), available at 

http://epw.senate.gov/109th/Adler_Testimony.pdf. This means, in general, that mere 

“adjacency to a nonnavigable tributary by itself will not be enough to establish 

jurisdiction.” Id. at 5. It also means that “tributaries” cannot be interpreted to “allow[] for 

the assertion of jurisdiction with little regard for the actual connections between a given 

ditch, swale, gully, or channel with actual navigable waters.” Id. The proposed rule 

violates these principles, particularly in its expansion of per se jurisdiction. 

In relying on the entirety of Justice Kennedy’s opinion, the Agencies appear to count the 

“votes” and give weight to the reasoning of the Court’s dissenting members. But justices 

who decline to join the Court’s holding regarding the resolution of an issue in a case do 

not shape that holding—a dissent or concurrence (as opposed to a special concurrence), 

after all, carries no precedential weight. Instead, as Marks holds, it is only the positions of 

“those Members who concurred in the judgments” that are relevant. 430 U.S. at 193 

(emphasis added). Accordingly, Rapanos must be interpreted only on the basis of the 

plurality opinion and Justice Kennedy’s special concurrence, not on the basis of a 

prediction about the way that the dissenting justices may vote in some hypothetical future 

case. In other words, the Agencies may not assume that they may justify their actions 

under either opinion; instead, they must accept, at the least, that the kinds of assertions of 

jurisdiction rejected in Rapanos are off limits to them. And to be on legal terra firma, 

they should justify their assertion of authority under both the plurality’s approach and 

Justice Kennedy’s. 

This dispute is far from academic because central features of the proposed rule could only 

be supported under Justice Kennedy’s concurrence. For example, the proposed definition 

of “tributaries” is undoubtedly irreconcilable with the plurality opinion, for the plurality 

made clear that “tributaries” are not themselves “waters of the United States.” Rapanos, 

547 U.S. at 743–45 (arguing that tributaries can be “point sources” conveying pollution at 

the place where they enter “waters of the United States,” but not “waters of the United 

States” themselves). Justice Kennedy’s concurrence, on the other hand, finds that some 

“tributaries” can potentially be “waters of the United States,” even though earlier 

definitions of “tributaries” fail the “significant nexus” test. Id. at 781–82 (Kennedy, J., 

concurring). 
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Yet other features of the proposed rule could only, or more easily, be justified under the 

plurality’s approach. One example is an aspect of the proposed definition of “adjacent.” 

Because the plurality opinion does not require a “significant nexus” showing, only 

surface connection, it may allow regulation of “wetlands (however remote) possessing a 

surfacewater connection with a continuously flowing stream (however small).” Id. at 776 

(Kennedy, J., concurring). The plurality opinion may therefore support the “confined 

surface hydrologic connection” part of the new “neighboring” definition, while Justice 

Kennedy’s approach would seem to require specific showings that the “per se” nature of 

the proposed rule does not.

In sum, only by cobbling together the aspects of each Rapanos opinion that they favor 

can the Agencies find even arguable legal support for all aspects of their proposal. But 

agencies do not get to pick and choose from among competing and irreconcilable legal 

approaches. Because the proposed rule cannot be supported under one or the other 

interpretative approach in Rapanos—much less the common ground between the two—it 

is ultra vires. 

Even if a court were to adopt the Agencies’ implicit position that the four-Justice 

plurality and Justice Kennedy’s concurrence together form the controlling Rapanos test—

that is, that an assertion of jurisdiction that satisfies either standard is permissible—the 

proposed 12 rule would still fail. The proposed rule, with its expansive definitions of 

tributaries and adjacency, and its regional “other waters” analysis, covers numerous 

bodies of water and swaths of land that cannot be justified under either the four-Justice 

plurality opinion or Justice Kennedy’s concurrence. As such, the proposal exceeds the 

Agencies’ statutory authority under the Clean Water Act. 

The proposed rule encompasses areas possessing neither “relatively permanent, standing 

or flowing bodies of water” with a “continuous surface connection” to navigable waters, 

nor a “significant nexus” to “waters that are or were navigable in fact or that could 

reasonably be made so.” Rapanos, 547 U.S. at 732, 757, 759. For example, a per se rule 

recognizing tributaries as “waters of the United States” is not permitted under the 

plurality opinion, because the plurality requires a showing that the tributary actually 

conveys pollution at the point it reaches the navigable waters. Id. at 743 (plurality 

opinion). And the per se rule would also not be permitted by Justice Kennedy’s 

concurrence, because it captures “streams remote from any navigable-in-fact water and 

carrying only minor water volumes toward it.” Id. at 781 (Kennedy, J., concurring). 

The proposed definitions of “adjacency” and “other waters” also violate even the most 

generous reading of Rapanos. “Adjacency” with its “riparian area” and “floodplain” 

categories, and “other waters” with its regional analysis, each encompass land and waters 

not at all bordering proper “waters of the United States,” much less possessing a 

“continuous surface connection.” Id. at 757. They thus cannot be justified under the 

plurality opinion. And they also violate Justice Kennedy’s concurrence. Given that the 

concurrence expressed grave doubts about previous efforts by the Agencies, using the 

narrower definition of “adjacency,” to regulate “wetlands adjacent to tributaries . . . little 

more related to navigable- in-fact waters than were the isolated ponds held to fall beyond 

the Act’s scope in SWANCC,” it is inconceivable that the concurrence can be reconciled 

with a definition of adjacency that includes all waters in “riparian areas.” Id. at 781–82 

(Kennedy, J., concurring). 
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Nor does Justice Kennedy’s concurrence support the proposed rule’s “in the region” 

analysis. It does not directly answer that question because it was “neither raised by these 

facts nor addressed by any agency regulation.” Id. at 782 (Kennedy, J., concurring). But 

Justice Kennedy does suggest that this approach is impermissible. Justice Kennedy would 

require the Corps to establish that wetlands adjacent to nonnavigable tributaries 

“significantly affect the chemical, physical, and biological integrity of other covered 

waters more readily understood as ‘navigable.’” Id. at 780 (Kennedy, J., concurring). By 

contrast, the proposed rule allows the agencies to presume that this is the case, without 

making any specific determination. Accordingly, this approach cannot be supported by 

Justice Kennedy’s reasoning. 

In sum, even if the Agencies are correct that they may rely on either of the two opinions 

that comprise the Rapanos majority, their proposed rule is still ultra vires because central 

aspects of it fail to satisfy either standard. (p. 10-15)

Agency Response: The rule is consistent with the statute, case law, and the 

Constitution. Technical Support Document, I.A., B., and C. All nine of the United 

States Courts of Appeals to have considered “the narrowest grounds” under Marks 

have stated that Justice Kennedy’s significant standard may be used to establish 

applicability of the CWA. Consistent with Justice Kennedy’s opinion, the rule is 

based on the agencies’ careful examination of the science and the law to make a 

determination of significant nexus for specified waters and to provide that certain 

other waters may be jurisdictional where a case-specific determination has found a 

significant nexus. Preamble, III, and Technical Support Document, I.B, I.C. and II.

10.239 In the background of the Court’s decisions in Rapanos and Solid Waste Agency of 

Northern Cook County. v. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), is 

the question of the extent of Congress’s regulatory authority under the Commerce Clause. 

In both cases, the Court interpreted the CWA so as to avoid reaching this constitutional 

question. But the broad reach of the proposed rule—which purports to assert federal 

regulatory authority over development adjacent to “tributaries” that are dry and on lands 

that are merely in the “region” of actual waters—not only exceeds the Agencies’ 

statutory authority but also relies on an interpretation of the Act that exceeds Congress’s 

Commerce Clause authority. 

In SWANCC, the government sought to defend the Corps’ “Migratory Bird Rule,” which 

asserted CWA jurisdiction over intrastate waters that provide habitat for migratory birds, 

on the basis that “the protection of migratory birds is a ‘national interest of very nearly 

the first magnitude’” due to the amount of money spent on bird-related recreation and 

therefore well within “Congress’ power to regulate intrastate activities that ‘substantially 

affect’ interstate commerce.” 531 U.S. at 173. The Court, however, had its doubts: “For 

example, we would have to evaluate the precise object or activity that, in the aggregate, 

substantially affects interstate commerce. This is not clear . . . .” Id. As it explained, 

“[p]ermitting respondents to claim federal jurisdiction over ponds and mudflats falling 

within the ‘Migratory Bird Rule’ would result in a significant impingement of the States’ 

traditional and primary power over land and water use.” Id. at 174. Whether or not it was 

within Congress’s power to so impinge on the States’ traditional authority, the Court 

assumed that Congress would have made some “clear statement” “expressing a desire to 

readjust the federal- state balance in this manner” before undertaking an action so fraught 
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with constitutional doubt. Id. Accordingly, it “read the statute as written to avoid the 

significant constitutional and federalism questions raised by respondents’ interpretation.” 

Id. 

Likewise, the plurality in Rapanos recognized that “[r]egulation of land use, as through 

the issuance of the development permits . . ., is a quintessential state and local power” 

and that “[t]he extensive federal jurisdiction urged by the Government would authorize 

the Corps to function as a de facto regulator of immense stretches of intrastate land.” 547 

U.S. at 738. It too applied the avoidance canon, reasoning that it would “ordinarily expect 

a ‘clear and manifest’ statement from Congress to authorize an unprecedented intrusion 

into traditional state authority.” Id. To do otherwise would force the Court to confront 

“difficult questions about the ultimate scope of [Congress’s commerce] power.” Id.

Presumably a federal court could and would apply the same avoidance canon and clear 

statement rule in rejecting the interpretation set forth in the proposed rule. But that does 

not mean, of course, that the Agencies’ interpretation can be supported under the 

Constitution— to the contrary, the application of the avoidance canon in both SWANCC

and Rapanos suggests substantial doubt on that score, which is confirmed by application 

of basic Commerce Clause principles. 

In particular, the Supreme Court has “always recognized that the power to regulate 

commerce, though broad indeed, has limits.” Maryland v. Wirtz, 392 U.S. 183, 196 

(1968). The assertion of federal authority to regulate basic land-use requirements in entire 

regions of 15 the nation—and perhaps the entire region, if the Agencies’ approach is 

carried out to its logical end—“would erode those limits, permitting Congress to reach 

beyond the natural extent of its authority, ‘everywhere extending the sphere of its activity 

and drawing all power into its impetuous vortex.’” NFIB v. Sebelius, 132 S. Ct. 2566, 

2589 (2012) (Roberts, C.J.) (quoting The Federalist No. 48, at 309 (J. Madison)). For that 

reason alone, the Agencies’ interpretation must be rejected. 

More specifically, the Agencies’ interpretation cannot be supported as a regulation of 

activities “substantially related” to interstate commerce. The Supreme Court has 

“identified three broad categories of activity that Congress may regulate under its 

commerce power”: Congress may regulate “the use of the channels of interstate 

commerce,” “the instrumentalities of interstate commerce,” and “those activities having a 

substantial relation to interstate commerce, i.e., those activities that substantially affect 

interstate commerce.” United States v. Lopez, 514 U.S. 549, 558–59 (citations omitted). 

The regulation of land and water resources that does not involve navigable waterways, if 

it is within Congress’s authority at all, would have to fit within the third category. 

But the Court’s decisions in Lopez and United States v. Morrison, 529 U.S. 598 (2000), 

prohibit the federal government from regulating noneconomic intrastate activities that 

have only an attenuated connection to interstate commerce. As in Lopez, the statute at 

issue here “by its terms has nothing to do with ‘commerce’ or any sort of economic 

enterprise.” 514 U.S. at 561. As relevant, the CWA prohibits discharges into “the waters 

of the United States” without a permit issued by the federal government. This prohibition, 

as with the firearm-possession statute in Lopez and the civil remedy for the victims of

gender-motivated violence in Morrison, does not directly regulate commercial activity. 

While a property owner may certainly hire a contractor to apply fill to a portion of his 
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property, the prohibition does not address that commercial transaction and applies equally 

to the property owner doing the work himself—or, for that matter, to a toddler with a 

bucket and shovel tossing dirt into a puddle. The CWA also lacks an express 

“jurisdictional element which would ensure, through case-by-case inquiry, that the

[regulated activity] affects interstate commerce.” Id. Thus, the prohibition itself is not a 

regulation of economic activity. “[T]hus far in our Nation’s history [the Supreme 

Court’s] cases have upheld Commerce Clause regulation of intrastate activity only where 

that activity is economic in nature.” Morrison, 529 U.S. at 613. On that basis, a court 

would be constrained to reject the Agencies’ interpretation of the CWA as exceeding 

Congress’s Commerce Clause power. 

Legislative history likewise provides no support for the argument that Congress 

considered “the effects upon interstate commerce” of the CWA’s prohibitions. See Lopez, 

514 U.S. at 562–63. Indeed, the Supreme Court considered and rejected in SWANCC the 

argument “that Congress intended to exert anything more than its commerce power over 

navigation.” 531 U.S. at 168 n.3. 

In sum, the Agencies’ interpretation must be rejected because it “would effectually 

obliterate the distinction between what is national and what is local.” Lopez, 514 U.S. at 

557 (internal quotation marks omitted). (p. 15-18)

The proposed rule is a thinly veiled attempt by the Agencies to undermine democratically 

enacted state and local laws and policies. If finalized, the rule will replace the judgments 

of those most knowledgeable of local needs—who also happen to be those most directly 

burdened by clean water regulations—with the wishes and desires of federal bureaucrats. 

Such a usurpation of states’ rights violates the CWA’s scheme of cooperative federalism 

and thus the CWA itself.

The Agencies claim that the proposed rule “[h]elps states protect their waters.” United 

States Environmental Protection Agency, Waters of the United States, available at 

http://www2.epa.gov/uswaters. (last visited Nov. 12, 2014). But by “states,” the Agencies 

mean their state-level bureaucratic counterparts. And the “help” the Agencies think States 

need is help circumventing democratically enacted statutory limitations on the state 

bureaucrats’ discretion. Indeed, one need look no further than the title of the source the 

Agencies cite to see their true intentions: State Constraints: State-Imposed Limitations on 

the Authority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean 

Water Act (Environmental Law Institute, May 2013), available at 

http://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf (last visited Nov. 12, 2014) 

(“State Constraints”). 

Examining the “state-imposed limitations” that the Agencies find so troubling is 

revealing. These limitations, as the State Constraints report chronicles, come in two 

forms: “no more stringent than” laws and private property-rights laws. “No more 

stringent than” laws are “laws or policies that limit the authority of state agencies to 

protect waters more stringently than would otherwise be required under the federal Clean 

Water Act.” State Constraints, at 11. Evidently twenty-eight States have determined that 

federal clean water regulations as they exist without the Agencies’ attempt at 

jurisdictional expansion are sufficient— or, indeed, more than sufficient—to protect their 

waters, and have adopted “no more stringent than” laws. Id. 
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Laws protecting rights to private property, the existence of which the Agencies also seem 

to regret, are “legal protections, often in the form of ‘private property rights acts,’ for the 

benefit of property owners whose rights are affected by state government action—often 

including local government action.” Id. at 20. The principal form such laws take is 

“assessment provisions,” which “require state government officials to assess their actions 

for potential constitutional takings implications, or for other impacts on private property 

rights.” Id. at 24. The other predominant form of laws protecting rights to private 

property is “compensation/ prohibition” provisions, which “require[] state agencies to 

pay certain private property owners who successfully claim that government regulation 

has resulted in a devaluation of their property.” Id. at 21. All told, twenty-two States have 

adopted property-based limitations on the authority of regulatory agencies, often through 

voter ballot initiatives. 

The Agencies, deeming bureaucratic discretion superior to the express will of the 

democratic populous, are proposing this rule to supplant such state and local laws. As 

shown below, that runs contrary to the policies that Congress sought to further in 

enacting the CWA.

The opening section of the CWA in which Congress specifies the statute’s goals and 

purposes clearly adopts a scheme that respects the rights of States. “It is the policy of the 

Congress,” the CWA declares, “to recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to 

plan the development and use (including restoration, preservation, and enhancement) of 

land and water resources...” 33 U.S.C. § 1251(b). Congress then goes on to order that 

“[f]ederal agencies shall co-operate with State and local agencies to develop 

comprehensive solutions to prevent, reduce and eliminate pollution...” 33 U.S.C. § 

1251(g). Yet despite these explicit articulations of congressional purpose, the Agencies 

have chosen to adopt an approach that is decidedly un-cooperative. 

Rather than impose top-down regulation, the Agencies should respect the water 

management policies adopted by those who have the “primary responsibilities and rights” 

to make such determinations. (p. 18-20)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B., and C. The Supreme Court’s 

analysis in Illinois v. Milwaukee and City of Milwaukee makes clear that Congress 

has broad authority to create federal law to resolve interstate water pollution 

disputes. Technical Support Document, IV.

10.240 Expanding the Agencies’ jurisdiction over our country’s waters has grave consequences 

for individuals’ liberty and right to property. As the Supreme Court has observed, the 

Agencies exercise their authority to grant permits under the CWA with “the discretion of 

an enlightened despot, relying on such factors as ‘economics,’ ‘aesthetics,’ ‘recreation,’ 

and ‘in general, the needs and welfare of the people.’” Rapanos, 547 U.S. at 721 

(plurality opinion) (quoting 33 C.F.R. § 320.4(a)). Successfully navigating the 

bureaucratic process to receive such a permit can be expensive and time consuming—

“[t]he average applicant for an individual permit spends 788 days and $271,596 in 

completing the process.” Id. All the while, one risks coming out empty handed, unable to 

satisfy the economic judgments or aesthetic tastes of the Agencies’ officials. Even a brief 
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survey of recent CWA cases demonstrates that widening the scope of the Agencies’ 

jurisdiction imperils individual liberty and rights to property. 

The Agencies are quite clear that they consider rights to property an obstacle to their 

regulatory pretensions. The State Constraints report commissioned by the Agencies and 

cited to justify the proposed rule describes rights to property as “set[ting] up a series of 

hurdles” to regulation. State Constraints, at 30. More troubling still, the report warns that 

property-based limitations can create “additional political scrutiny [of agency discretion] 

that could call into dispute the agency’s scientific judgments.” Id. Such obstacles and 

public oversight, the report concludes, create a “gap” that the federal government needs 

to fill. Id. at 5. 

So what problems, exactly, do the Agencies have with rights to property? For one, laws 

that prevent individuals qua individuals from bearing rightfully public burdens “limit 

some forms of new environmental regulation, as state agencies cannot afford to pay

owners as a condition of having their regulations enforced.” State Constraints, at 20–21. 

Other laws protecting rights to property, such as assessment requirements, “create 

additional processes for an agency to follow when a proposed regulation is likely to affect 

private property rights.” Id. at 21. Still others “enhance property owners’ ability to 

contest state regulation affecting their property.” Id. In short, it would seem that the 

Agencies’ grievances with rights to property boil down to the fact that those rights are a 

check on the Agencies’ unfettered authority. 

But rights to property are essential to—indeed, coextensive with—liberty and freedom 

precisely because they provide the check on governments that the Agencies so lament. It 

was in recognition of the important role property has in preserving our freedoms that the 

Founders to saw fit to ratify the Fifth Amendment, providing that “nor shall private 

property be taken for public use, without just compensation.” U.S. Const. amend. V. The 

Agencies’ proposed rule is antithetical to this fundamental, natural right, and must 

accordingly be rejected. 

CWA compliance imposes a massive burden on property owners, and interacting with the 

Agencies in the exercise of their CWA can be a costly and dangerous undertaking. After 

all, they have as an enforcement mechanism the threat of “a fine of not less than $5,000 

nor more than $50,000 per day of violation, or by imprisonment for not more than 3 

years, or by both.” 33 U.S.C. § 1319(c)(2)(B). But just how burdensome the Agencies’ 

enforcement regime is does not come into focus until one considers concrete examples. 

Lois Alt, the owner of Eight Is Enough Farm in Old Fields, West Virginia, has been 

engaged in a lengthy legal battle with the EPA. Ms. Alt owns “eight poultry confinement 

houses equipped with ventilation fans, a litter storage shed, a compost shed and feed 

storage bins.” However, she violated the CWA when “[p]recipitation [fell] on Ms. Alt’s 

farmyard, where it contacted the particles, dust and feathers from the confinement 

houses, creating runoff that carried such particles, dust and feathers across a neighboring 

grassy pasture and into Mudlick Run, a water of the United States.” Alt v. EPA, 979 F. 

Supp. 2d 701, 704 (N.D. W. Va. 2013). Because Ms. Alt did not have a permit for such 

discharges, the “EPA said that it could bring a civil action against Ms. Alt for this 

violation, in which case Ms. Alt ‘will be subject to civil penalties of up to $37,500 per 

day of violation’” and further that “a criminal action could be initiated.” Id. at 705. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

182

Or one could discuss the case of David Hamilton in Worland, Wyoming, who wanted to 

grow crops on part of his property. To free up space, he diverted a “meandering” creek on 

his property into “a new, straightened channel,” also on his property, without an EPA 21 

permit. United States v. Hamilton, 952 F. Supp. 2d 1271, 1272 (D. Wyo. 2013). Diverting 

the creek, it turned out, constituted discharging a pollutant from a point source under the 

CWA, so the EPA ordered Hamilton to “remove the fill material from Slick Creek and 

restore it to its previous condition” at his own expense. Id. 

Application of CWA procedures recently prompted a unanimous rebuke from the 

Supreme Court in the Sackett case. For filling in part of their residential lot near a lake 

with rock and sand in preparation for building a home, the Sackett family found 

themselves in the undesirable position of facing potentially $75,000-a-day in EPA fines 

for violating the CWA. Sackett, 132 S. Ct. at 1372. When the Sacketts asked for a hearing 

to challenge the EPA’s finding that their land is covered by the term “waters of the 

United States”—land, it should be noted, that was separated from the nearby lake by 

several other lots “containing permanent structures”—the EPA refused their request. Id. 

at 1370-71. It was only by taking their case to the Supreme Court that the Sacketts were 

ultimately able to vindicate their right simply to challenge the EPA determination in 

court. 

Broad CWA jurisdiction can also pose a trap for the unwary. For example, James Wilson, 

a developer in Maryland, worked in partnership with the United States Department of 

Housing and Urban Development to build a development that included 10,000 housing 

units, parks, and schools. United States v. Wilson, 133 F.3d 251, 254 (4th Cir. 1997). On 

three of the parcels in the 4,000 acre development, Mr. Wilson had ditches dug so he 

could build on them. Even though Mr. Wilson worked with the federal government, and 

the Army Corps authored a memorandum stating that it is “not clear” the land was a 

“water of the United States,” he was eventually convicted on four felony counts for 

knowingly violating the CWA. Id. at 255. His conviction was overturned on appeal. 

As these cases and countless others illustrate, the Agencies often exercise their regulatory 

muscles arbitrarily and to the detriment of individual liberty. Because the Agencies have 

such severe penalties at their disposal, and inadequate judicial checks on their discretion, 

the Agencies’ jurisdiction should be limited, not expanded. The Agencies’ proposal not 

only moves policy in the wrong direction, it also fails to adequately consider the impact 

of expanded CWA jurisdiction on rights to property and fails to consider the burden that 

its approach would impose on property owners. (p. 20-14)

Agency Response: This rule does not constitute a taking of private property in 

violation of the Fifth Amendment. Technical Support Document, I.C. The rule does 

not shift the burden of proof to the regulated community; the federal government 

must demonstrate that a water is a "water of the United States" under the CWA 

and its implementing regulations. 

Citizen’s Advisory Commission on Federal Areas, State of Alaska(Doc. #16414)

10.241 The proposed rule relies on Justice Kennedy's "significant nexus" test as the prevailing 

legal consensus on jurisdiction under CW A §404. However, there is no consensus on 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

183

whether Justice Kennedy's concurrence in Rapanos v. United States, where his test is 

outlined,367 represents a working rule. When a plurality opinion issues, the holding is 

generally confined to whatever position is taken by the majority of justices "on the 

narrowest grounds."368 However, as Chief Justice Roberts implies in his concurrence,369 

application of the narrowest grounds doctrine is challenging with the breakdown of 

opinions issued in Rapanos. For instance, where federal jurisdiction is found using the 

Rapanos plurality's test, all nine justices could agree. Conversely, where the significant 

nexus test determines an area is nonjurisdictional, it is possible only one justice would 

agree,370 since the dissent argued in favor of whichever test sustained jurisdiction.371 In 

any event, a comprehensive application of Rapanos has to be about more than polling 

justices, or endowing a single justice's opinion with the full force of law. While markedly 

split on a jurisdictional test, the justices appears to agree on some key points:

 The qualifier "navigable" matters, even though the CW A gives the federal 

government jurisdiction over waters that are not navigable in the traditional sense 

but which have a connection to waters which are.

 The CWA grants jurisdiction over wetlands which are immediately adjacent to

traditional navigable waters with no discernible boundary between them.

 The current standard for tributaries (having an ordinary high water mark and 

leading to traditional navigable waters or other tributaries) does not automatically 

grant jurisdiction over the wetlands adjacent to them.

 Hydrological connection is not dispositive; quantity and regularity of flow matter.

 CW A jurisdiction exists even for water bodies that experience a dry season, 

unless the wet season is speculative.

 Limitations on the extent of jurisdiction are necessary to avoid serious 

constitutional and/or federalism difficulties.

These consensus points provide significantly more defensible guideposts than 

indiscriminate adoption of Justice Kennedy's Rapanos concurrence. More than that, 

however, the proposed rule's interpretation of its significant nexus test is inconsistent 

with the precedent it purports to clarify in its refined definition of WOTUS, including 

Rapanos but, in particular, the prior decisions in United States v. Riverside Bayview 

Homes, Inc.,

372

 and Solid Waste Agency of Northern Cook County v. Army Corps of 

Engineers373 (SWANCC) which established the test. These Court's holdings in those cases 

were not overruled in Rapanos, and the proposed rule's interpretation of the significant 

nexus test must be just as (or even more) consistent with them. 

 

367 126 S. Ct. at2241.

368 Marks v. United States, 430 U.S. 188, 193 (1977).

369 Rapanos, 126 S. Ct. at 2236 (Roberts, C.J., concurring).

370 Cf 79 Fed. Reg. at 22, 192 (arguing the four dissenting justices would affirm blanket application of the significant 

nexus test).

371 Rapanos, 126 S. Ct. at 2265 and n.14 (Stevens, J., dissenting). See also United States v. Gerke Excavating, Inc., 

464 F.3d 723, 724- 25 (2006) (per curiam) (describing instances where the plurality's test, but not the significant 

nexus test, would be satisfied).

372 474 U.S. 121 (1985).

373 531 U.S. 159(2001).
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184

As the Rapanos plurality notes, the idea of a "significant nexus" from Riverside Bayview

was based on the circumstances of that case; more specifically, a wetland immediately 

adjacent to a navigable waterway, with no way to discern where the water in the wetland 

ends and the water in the navigable waterway begins, can be considered jurisdictional. 

The Court's significant nexus in Riverside Bayview was the wetland's obvious (not 

remotely hydrological) connection to the navigable-in-fact waters immediately adjacent 

to it.374 The Court's significant nexus in SWANCC was also informed by an obvious 

adjacency to open water.375 Justice Kennedy dismisses a "surface" connection as a 

baseline requirement, but he does not preclude its singular relevance in those cases. He 

simply adopts a more expansive (but still limited) "significant" connection with navigable 

waters. (p. 3-4)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A. and C, II.

10.242 The proposed rule, particularly the concept of jurisdiction-by-rule (per se jurisdiction), 

goes well beyond the significant nexus test described in Rapanos and established in prior 

case law. Justice Kennedy tied his significant nexus test in Rapanos to both SWANCC

and Riverside Bayview376, noting its flexibility to find jurisdiction beyond permanent 

waters with a surface connection to covered waters. This flexibility could account for 

specific instances where jurisdiction over a particular water body could be consistent with 

the intent of the CWA - specific instances he wanted the ACOE to be free to identify, as 

needed. Though it is never explicitly limited as such, the only possible approach 

consistent with Justice Kennedy's guidance would heavily favor, if not exclusively 

provide for, case-by-case determinations.

Only two observations by Justice Kennedy could arguably support a per se jurisdiction 

concept: 

 "When the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, 

it may rely on adjacency to establish its jurisdiction."377

 "[A]n intermittent flow can constitute a stream ... while it is flowing. [citations 

omitted] It follows that the Corps can reasonably interpret the Act to cover the 

paths of such impermanent streams."378

The first example merely restates the holding in Riverside Bayview and adjacency 

findings would thus be limited to the circumstances presented in that case (immediately 

adjacent with no discernible boundary). The agencies cannot simply define "adjacent" to 

include things outside the scope of the CWA in order to use this statement as justification 

for per se jurisdiction. The second example restates an assumption in Riverside Bayview

that Congress intended to include some non-navigable waters. In Justice Kennedy's view, 

the ACOE could find intermittent streams jurisdictional under this assumption; since they 

would be streams when flowing, it could be problematic to treat them differently 

 

374 See 474 U.S. at 134.

375 See 531 U.S. at 168.

376 Id. at 2240-41.

377 Id. at 2249.

378 Id. at 2243.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

185

dependent on the presence or absence of water. And though he did not provide an explicit 

flow rate or temporal threshold for such a finding, the lack of such a threshold would be 

inconsistent with the law and his concurrence as a whole.379 

Every other example Justice Kennedy provides of waters potentially covered by the 

CWA is qualified in some way to note possibility, not wholesale inevitability, and most 

contemplate some attached process of discerning whether a specific water body is 

jurisdictional. For example: 

 "Though the plurality seems to presume that such irregular flows are too 

insignificant to be of concern in a statute focused on 'waters,' that may not always 

be true."

 "The question is what circumstances pem1it a bog, swamp, or other nonnavigable 

wetland to constitute a 'navigable water' under the Act-as §1344(g)(l), if nothing 

else, indicates is sometimes possible."

 "As Riverside Bayview recognizes, the Corps' adjacency standard is reasonable in 

some of its applications."

 "It seems plausible that new or loose fill ... could travel downstream through 

waterways adjacent to a wetland; at the least this is a factual possibility that the 

Corps' experts can better assess than can the plurality."

 "In many cases, moreover, filling in wetlands separated from another water by a 

berm can mean that flood water, impurities, or runoff that would have been stored 

or contained in the wetlands will instead flow out to major waterways."

 "[The existing standard for tributaries] may well provide a reasonable measure 

ofwhether specific minor tributaries bear a sufficient nexus with other regulated 

waters to constitute 'navigable waters' under the Act."

 "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." 

 "Yet in most cases regulation of wetlands that are adjacent to tributaries and 

possess a significant nexus with navigable waters will raise no serious 

constitutional or federalism difficulty." 

 "The possibility of legitimate Commerce Clause and federalism concerns in some 

circumstances does not require the adoption of an interpretation that departs in all 

cases from the Act's text and structure." 

 "[M]ere adjacency to a tributary of this sort is insufficient; a similar ditch could 

just as well be located many miles from any navigable-in-fact water and carry 

only insubstantial flow towards it. A more specific inquiry, based on the 

significant nexus standard, is therefore necessary." [citations omitted]

 

379 The proposed rule's esoteric reliance on a bed, bank and Ordinary High Water Mark fails to create a meaningful 

distinction.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

186

The per se jurisdiction concept takes generic categories of water bodies where the text or 

intent of the CWA may support coverage and, instead, automatically grants coverage in 

all instances. Justice Kennedy's generic language, broad assumptions and apparent 

contemplation of further inquiry by the agencies demonstrably belies a blanket approach. 

Moreover, the approach dramatically shortchanges the diversity of wetlands and waters 

that exist nationwide, is a massive expansion of the existing regulations (regardless of the 

preamble's statement to the contrary) and undercuts any notions of federalism enshrined 

in the original legislation and subsequent case law. This is not a legal, or even palatable, 

exchange for the proposed rule's claim of added clarity and convenience, two things 

which can just as easily be provided by saying every pathway for and molecule of H20 in 

the United States is under federal jurisdiction. 

In establishing his significant nexus test, Justice Kennedy bolstered any expansion on 

precedent with support, either explicit or implicit, from the CWA and congressional 

intent. He also demonstrated a concern for "unreasonable applications of the statute" in 

requiring the ACOE to "establish a significant nexus on a case-by-case basis" unless 

"more specific regulations" were developed.380 The proposed rule does not include the 

specificity Justice Kennedy was after - in fact, it still contains "the potential 

overbreadth"381 which concerned Justice Kennedy enough to require case-by-case 

determinations for adjacent wetlands. 

Lastly, it bears mentioning that the Rapanos Court was only considering the definition of 

WOTUS found in the current regulations. The discussion is thereby limited to the terms 

outlined there - e.g., captioning undefined terms like "tributaries" and "adjacent 

wetlands." Nothing in the opinion, or other precedent, supports or lends credibility to the 

proposed rule's new and expanded definitions of "tributaries" and "adjacent wetlands." 

These new definitions appear to capitalize on the Court's limited discussion of these 

terms to see where expansion is possible consistent with those discussions, while 

ignoring the context under which they were developed. (p. 3-6)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A. and C.

Red River Valley Association (Doc. #16432)

10.243 Under CWA section 404(a), any person engaging in activities that result in the "discharge 

of dredged or fill material into the navigable waters" must obtain a permit from the 

Corps. The term "navigable waters" is defined broadly by statute to mean all "waters of 

the United States, including the territorial seas." In turn, the Corps has further defined this 

term by regulation to include: (1) waters currently used or used in the past for interstate 

of foreign commerce, including waters subject to the ebb and flow of the tide (i.e., 

traditional navigable waters); (2) interstate waters and wetlands; and (3) "other waters 

such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sand 

flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the 

use, degradation or destruction of which could affect interstate or foreign commerce .... " 

 

380 Id. at 2249.

381 Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

187

This definition also includes "tributaries" of these waters, impoundments of these waters, 

and "wetlands adjacent to [these] waters." 

The agencies' stated intent for issuing the Proposed Rule is to implement the U.S. 

Supreme Court's decisions in two noteworthy cases that address the scope of waters 

protected by the CWA: Solid Waste Agency of Northem Cook County v. U.S. Army Corps 

of Eng'rs (SWANCC) and Rapanos v. United States (Rapanos). In SWANCC, the agencies 

attempted to use the Migratory Bird Rule to assert jurisdiction over a non-navigable, 

isolated, intrastate pond based on its use as a habitat for migratory birds. The Court ruled 

that jurisdiction does not extend to ponds that are not adjacent to open water where the 

only connection to navigable waters was the presence of migratory birds. The SWANCC

court noted that the word "navigable" in the CWA had been given limited effect, in the 

sense that the CWA could properly govern wetlands and other waters that were not 

themselves navigable. However, as the Court observed, "it is one thing to give a word 

limited effect and quite another to give it no effect whatever." In other words, water that 

is totally isolated from navigable waters is beyond the regulatory authority provided by 

Congress under the CWA. 

In the Rapanos case, the Supreme Court addressed the question of whether CWA 

jurisdiction extends to wetlands not "adjacent" to navigable water. The Court's decision 

was essentially split three ways: a four member plurality opinion issued by Justice Scalia, 

a concurrence by Justice Kennedy, and a four-member dissent written by Justice Stevens. 

The Scalia plurality opinion found that "navigable waters" must be "relatively permanent, 

standing or continuously flowing bodies of water," which does not include intermittent 

streams and tributaries that empty into navigable waters. The Kennedy concurrence 

established a "significant nexus" test. Under this test, for a water or wetland to constitute 

"navigable waters," it must possess a "significant nexus" to waters that are or were 

navigable in fact (i.e., traditional navigable waters) or that reasonably could be so made. 

The Stevens dissent would have deferred to the Corps' exercise of regulatory jurisdiction. 

The meaning and intent of Rapanos has been the subject of extensive debate, but one 

aspect of the case is clear: it limits the agencies' jurisdiction. Under Supreme Court 

precedent, Justice Kennedy's concurring opinion should be viewed as the controlling test 

in future cases. We urge the agencies to rely exclusively on the Kennedy concurrence, in 

keeping with the law as articulated by the Eleventh Circuit. The Proposed Rule exceeds 

the scope of jurisdiction under the Kennedy concurrence. 

Under the agencies' interpretation, virtually any nexus beyond "speculative" or 

"insubstantial" would result in a finding of jurisdiction under the agencies' guidance. 

Even areas that lack a hydrologic connection to traditional navigable waters can be 

deemed jurisdictional under the Proposed Rule's expansive test. (p. 1-2)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., and C. The agencies' significant 

nexus determinations are consistent with the statute, the caselaw, and the science. 

Preamble, III and Technical Support Document, II and VI.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

188

Center for Biological Diversity, Center for Food Safety and Turtle Island Restoration network 

(Doc. #15233)

10.244 As to other proposed exclusions, we note that Appendix B to your rule, “Legal Analysis,” 

provides no discussion of groundwater, gullies, rills, non-wetland swales, and other water 

bodies and features that you propose to newly exempt from the definition of WOTUS. 

That likely is for good reason, as a plain reading of the overall intent of the Clean Water 

Act cannot support your newly proposed establishment of these exemptions. (p. 10)

Agency Response: See Exclusions compendium.

10.245 While the proposed rule does some good things to affirm long-time federal authority to 

protect some types of waters, the proposed rule as written takes certain issues raised by 

various justices in SWANCC and Rapanos and elevates them to a scientific and legal 

status that is unwarranted. Neither case calls for EPA to vacate scientific principles to 

satisfy political concerns. EPA should stand on the sound science that has been created 

by its own people, sister agencies, and the virtually unanimous independent scientific 

community, to provide the strongest protections available under the Clean Water Act to 

the limits of the commerce clause. Anything less will continue to degrade our Nation’s 

already imperiled water quality. See GAO-14-80, “Changes Needed if Key EPA Program 

is to Help Fulfill the Nation’s Water Quality Goals” (Dec. 2013). (p. 11)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., and C. 

The Washington Legal Foundation (Doc. #5503)

10.246 WLF is concerned that the agencies’ proposed definition of “waters of the United States” 

is not consistent with the leading Supreme Court cases interpreting the permissible outer 

limits of federal jurisdiction under the CWA. The purported goals of EPA’s proposal are 

to provide clarity and predictability to the public, with a rule that is clear, understandable, 

and consistent with the law. A careful reading of the proposed Rule, however, suggests 

that its practical effect will likely be to accomplish something Congress chose not to do—

effectively circumvent the Supreme Court’s imposition of meaningful limits on how far 

the Corps and EPA can go in asserting jurisdiction under the CWA. (p. 3)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., and C. 

National Federation of Independent Business (Doc. #8319)

10.247 Though we fully recognize the importance of the CWA’s goals of eliminating pollutant 

discharges into the waters of the United States, we have serious objections to the 

Proposed Regulation because it will expand CWA jurisdiction beyond the constitutional 

limits recognized in Rapanos v. United States, 574 U.S 715 (2006). Under the Proposed 

Regulation the Agencies will assert newly expanded jurisdiction over properties all 

across the country. We expect the actual impact of the Proposed Regulation will greatly 

exceed the Agencies’ prediction of a mere 3% increase in jurisdictional wetlands; though 

we do not have a metric for offering a precise measurement of the proposed jurisdictional 

expansion, there is no way that its sweeping categorical rules will be so limited in effect. 

(p. 2)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

189

Agency Response: The rule is narrower than the existing regulation and is 

consistent with the statute, the caselaw, and the Constitution. Technical Support 

Document, I.A., and C. See the Economic Analysis for an explanation of the scope of 

the analysis.

10.248 As Justice Alito noted in Sackett v. EPA, 132 S.Ct. 1367 (2012), the “reach of the Clean 

Water Act is notoriously unclear.” This is undoubtedly true. The Supreme Court has 

addressed CWA jurisdictional questions on three different occasions. See United States v. 

Riversde Homes, Inc. 474 U.S 121 (1985); Solid Waste Agency v. United States Army 

Corps of Engineers, 531 U.S 159 (2001); Rapanos, 547 U.S 715. But, the exact reach of 

the CWA remains a murky question—so much so that some legal scholars contend that 

the CWA is unconstitutionally vague because the regulated community cannot readily 

determine whether a given property is, or is not, a jurisdictional wetland. See Jonathon 

Adler, Wetlands, Property Rights, and the Due Process Deficit, Cato Supreme Court 

Review, 141 (2012). 

While it is commendable that the Agencies apparently seek to resolve some of the confusion 

over the jurisdictional reach of the CWA in the Proposed Regulation, our view is that only 

Congress can fix this problem. The Proposed Regulation would resolve the vast majority of 

jurisdictional disputes by applying categorical rules, which will result in expansive assertions 

of jurisdiction. But Rapanos makes clear that categorical assertions of jurisdiction must be 

rejected. It is simply beyond the authority of the Agencies to expand CWA jurisdiction 

through the rulemaking process in a manner that conflicts with the jurisdictional tests set 

forth in Rapanos and her progeny. (p. 2)

Agency Response: The rule is narrower than the existing rule and is consistent with 

the statute, the caselaw, and the Constitution. Technical Support Document, I.A., B, and 

C. 

10.249 The Agencies are not writing on a blank-slate here. The Supreme Court has made clear 

that there are constitutional limits on the jurisdictional reach of the CWA. The Agencies 

have been repudiated for overreaching in the past, and will be again if the Proposed 

Regulation is understood as reaching beyond the constitutional limitations recognized in 

Rapanos. While there are still grounds for disputing how far CWA jurisdiction reaches on 

a case-by-case basis, Rapanos set the outer-limits. And the Agencies cannot exceed those 

limits any more than Congress could. Accordingly, the only question is whether the 

Proposed Regulation goes beyond what Rapanos would allow. For the reasons set forth 

below, we maintain the Proposed Regulation is inconsistent with Rapanos and should 

therefore be amended or abandoned entirely. (p. 3)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., and C. 

The Association of State Wetland Managers (Doc. #14131)

10.250 The proposed rule provides much needed clarity regarding the scope of federal 

jurisdiction over waters of the United States in the wake of U.S. Supreme Court decisions 

including SWANCC v. U.S. Army Corps of Engineers, and Rapanos v. United States. 

These two decisions altered the previous understanding of Clean Water Act jurisdiction, 

but did not provide a clear and comprehensive definition to replace the existing rule and 

guidance on the waters protected under the Clean Water Act. The plurality decision in 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

190

Rapanos in particular has resulted in uncertainty regarding the correct scope of federal 

regulation, especially for wetlands. Many states operate under state rather than federal 

law. This has resulted in delays where both state and federal review are required, and 

engendered a lack of trust in the ability of state and federal agencies to appropriately 

apply water regulations. (p. 2)

Agency Response: The agencies agree that the Supreme Court's decisions have 

resulted in uncertainty and that the rule provides much needed clarity. 

South Park Coalition (Doc. #0160)

10.251 Thank you for your attention to this matter. The character of the nation’s aquatic 

resources, its wetlands and associated flora and fauna are best protected in the commons 

by the total inclusion of necessary and inherent rule and scientifically-based designation 

enumeration of all related and collateral natural factors. To omit “migratory birds” from 

the definition of “waters of the “United States” would be a serious oversight - see 

especially State of Missouri v. Holland 252 U.S 416 (1920) – Supreme Court of the 

United States: 

“...Wild birds are not in the possession of anyone; and possession is the 

beginning of ownership. The whole foundation of the State's rights is the presence 

within their jurisdiction of birds that yesterday had not arrived, tomorrow may be 

in another State and in a week a thousand miles away. If we are to be accurate we 

cannot put the case of the State upon higher ground than that the treaty deals with 

creatures that for the moment are within the state borders, that it must be carried 

out by officers of the United States within the same territory, and that but for the 

treaty the State would be free to regulate this subject itself.”

“...Here a national interest of very nearly the first magnitude is involved. It can 

be protected only by national action in concert with that of another power. The 

subject matter is only transitorily within the State and has no permanent habitat 

therein. But for the treaty and the statute there soon might be no birds for any 

powers to deal with. We see nothing in the Constitution that compels the 

Government to sit by while a food supply is cut off and the protectors of our 

forests and our crops are destroyed. It is not sufficient to rely upon the States. The 

reliance is vain, and were it otherwise, the question is whether the United States is 

forbidden to act. We are of opinion that the treaty and statute must be upheld.

Carey v. South Dakota, 250 U.s 118, 39 Sup. Ct. 403.” (p. 5)

Agency Response: In light of the Supreme Court's decision in SWANCC, the 

agencies do not define "waters of the United States" based on migratory birds. 

Technical Support Document, I.C.

Texas Conservative Coalition (Doc. #14528)

10.252 As discussed by the Supreme Court in Rapanos v. United States, the EPA’s authority to 

regulate “the waters of the United States” extends only to relatively permanent, standing, 

or continuously flowing bodies of water such as streams, oceans, rivers, and lakes. Its 

authority under the Act does not extend to channels where water flows intermittently or 

ephemerally, such as drainage channels for rainwater runoff. (p. 2)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

191

Agency Response: The rule is consistent with the statute and the caselaw, an. 

Technical Support Document, I.A., and C. 

Friends of the Rappahannock (Doc. #15864)

10.253 When passing the Clean Water Act in 1972, Congress made it clear that the scope of the

Clean Water Act was to be far-reaching. The Act's ambitious goal— "to restore and

maintain the chemical, physical and biological integrity of the Nation's water"382' 

required extensive federal authority over the "Nation's waters." The record of Congress' 

deliberation demonstrates that that Congress intended the Clean Water Act "be given the 

broadest possible constitutional interpretation unencumbered by agency determinations 

which have been made or may be made for administrative purposes." 383 Congress 

recognized that 'water moves in hydrologic cycles and it is essential that discharge of 

pollutants be controlled at the source." 384 Given Congress' clear intent that the Clean 

Water Act address pollution at its source and its recognition that waters are

interconnected, the scope of the proposed rule is well within Congressional intent and is

legal.385 The EPA and the Army Corps are entitled to deference in decisions about the 

scope of

Clean Water Act authority based on their expert ecological judgment about the role that

certain types and categories of waters play in the health and function of aquatic

systems,386 unless a particular interpretation "invokes the outer limits of Congress'

power."387 Where, as here, the proposed rule is based on copious scientific evidence and

the agencies' judgment about whether the science reveals a "significant nexus" between

various categories of waters and downstream navigable or interstate waters, the approach 

is a reasonable and lawful interpretation of the Clean Water Act. 388 (p. 2)

Agency Response: The agencies agree the rule is consistent with the statute, the 

caselaw, and the Constitution. Technical Support Document, I.A., and C. 

Common Sense Nebraska (Doc. #14607)

10.254 EPA issuance of the proposed rule is in excess of statutory jurisdiction, authority, or 

limitations because it unlawfully expands the scope of federal agency jurisdiction under 

the CWA.

Under the APA a Court shall set aside agency action which is “not in accordance with the 

law” or “in excess of statutory jurisdiction, authority or limitations.” See 5 U.S.C. 

§706(2)(A),(C). “[T]he judiciary, not the agency is the final authority on issue of 

statutory construction,” and will “reject any administrative constructions contrary to this 

clear congressional intent.” Massachusetts v. Dep’t of Transp., 93 F.3d 890,893 (D.C. 

 

382 33 U.S.C. § 1251(a).

383 Sen. Conf. Rep. No. 92-1236, 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Admin. News

3376 at 3822.

384 S. Rep. No. 414 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Admin. News at 3752-53.

385 See. Chevron U.S.A. v. NRDC, 467 U.S. 837, 842-843 (1984) (holding that if Congress' intent is clear, the

Court and the agency must give effect to Congress' unambiguously expressed intent).

386 United States v. Riverside Bayview Homes, 474 U.S. 121, 132-35 (,1985).

387 Solid Waste Agency of Northern Cook County v, Army Corp s of Engineers, 531 U.S. 159, 172 (2001).

388 Rapanos v. United States, 547 U.S. 715, 767 (2006) (Kennedy, J., concurring).
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Cir. 1996) (internal quotation marks and citations omitted). a. The proposed rule 

supersedes a 2003 Legal Memorandum and a 2008 Joint Guidance Memorandum which 

were limited to CWA § 404 determinations thereby wrongfully expanding the scope of 

federal agency jurisdiction under the CWA. The proposed rule represents the EPA and 

the U.S. Army Corps of Engineers (Corps) interpretation of the current jurisdictional 

reach of the CWA. The proposed rule will supersede a 2003 Joint Memorandum which 

provided clarifying guidance on the Supreme Court’s Solid Waste Agency of Northern 

Cook County v. US Army Corps of Engineers (SWANCC) and a 2008 Joint Guidance 

memo issued after another Supreme Court case of Rapanos v. United States (Rapanos), 

(collectively “Existing Guidance”). Both of those cases involved wetlands issues with the 

Corps under §404. As noted earlier, the proposed rule addresses the definition of "waters 

of the United States" for all CWA purposes. And yet, the model for the regulatory 

approach here is the Existing Guidance which was limited on its face to §404 

determinations. With backing of the Connectivity Report, the proposed rule would 

significantly expand the scope of categorical federal agency jurisdiction under the CWA. 

The proposal makes an aggressive interpretation of Justice Kennedy's "significant nexus" 

test for determining CWA jurisdiction under Rapanos. Justice Kennedy intended that in 

order to meet the significant nexus test, there needed to be some significance or 

importance to the individual water body's impact on navigable waters. It is not in keeping 

with that case-by-case need to determine the importance of the specific facts of potential 

impact to think that an entire area could be categorically lumped into jurisdiction. Land 

use features such as ditches, waterways, and dry creek beds which rarely carry water will 

now categorically be under federal jurisdiction. Isolated wetlands and other waters 

outside of these areas may still be subject to CWA jurisdiction after a Corps 

determination of significant nexus. The EPA states that the purpose and intent of this 

proposed rule is to provide clarity and certainty to the current analysis and decisionmaking under §404. In reality though, the proposed rule will dramatically and wrongfully 

expand the scope of federal jurisdiction beyond the understanding of the current, Existing 

Guidance. EPA should withdraw the proposed rule, fix the current bureaucratic 

nightmare of §404 permitting and reintroduce a rule that is in line with Supreme Court 

case law and appropriately limited on its face to §404 determinations. (p. 6)

Agency Response: While the Supreme Court's decisions arose in the context of 

Section 404, the Supreme Court did not hold that there is a scope of "waters of the 

United States" unique to Section 404. The rule is consistent with the statute, the 

caselaw, and the Constitution. Technical Support Document, I.A., and C. 

10.255 The proposed rule unlawfully expands the scope of federal agency jurisdiction under the 

CWA through the use of broad and ambiguous terminology; by improper application of 

the “significant nexus” test for determining CWA jurisdiction according to Rapanos v. 

United States, 547 U.S. 715 (2006); by usurping the cooperative federalism tenants laid 

out in the CWA; and through the illegal regulation of groundwater. Unlawful expansion 

of federal agency jurisdiction under CWA through the use of broad and ambiguous 

terminology.

As discussed in detail in Section I., there are countless terms and phrases within the 

proposed rule that are not adequately defined or defined at all. What this provides to EPA 

is practically limitless authority to assert jurisdiction over thousands, if not millions, of 
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193

new water features and land uses creating only more confusion for all Nebraskans. Two 

additional overly broad terms include “tributary” and “adjacent.”

One stated purpose of the proposed rule is to reduce the use of the Corps' Wetlands 

Delineation Manual of 1987 and its supplements. The Manual is the tool the agencies use 

to determine whether water bodies are subject to CWA jurisdiction on a case-by-case 

basis. Case-by-case determinations using the Manual are frequently difficult, time 

consuming, and bureaucratic. The more difficult determinations are those waters 

described as "other waters" in the EPA and Corps' regulations. The proposed rule 

attempts to solve this difficulty by determining, for the first time, that the following will 

always be jurisdictional:

• All "tributaries", including any water (wetlands, lakes, and ponds) that 

contribute flow, either directly or through another water, to downstream 

traditional navigable waters, interstate waters, or territorial waters.

• All waters "adjacent" to such tributaries. "Adjacent" is broadly defined to 

include all waters located within the "riparian area" or "floodplain" of otherwise 

jurisdictional waters, including waters with shallow subsurface hydrologic 

connection or confined surface hydrologic connection to jurisdictional water.

The proposed rule does codify existing policies and categorically exempt areas from 

federal CWA jurisdiction in a specific listing of the policies and areas. However, the net 

effect of the proposed rule is that smaller and more remote upstream bodies of water will 

fall with certainty within federal CWA jurisdiction.

Nebraska is comprised of over 77,000 square miles of area with over 92 percent of that 

area used for agricultural purposes. From west to east, the State moves from low 

precipitation high plains to higher precipitation grasslands in the east. There are an 

infinite number of scenarios that call for good judgment in determining whether or not a 

particular water body is or should be subject to federal CWA jurisdiction. This rule 

would impose a blanket jurisdictional determination over thousands of acres of private 

property. The effect would be to impose unnecessary property restrictions and uncertainty 

as to what that actually means to landowners.

Much of the cause for unlawful expansion of jurisdiction is due to the broad scope of 

definitions contained in the proposed rule. The definition of "tributary" is too broad and 

needs some element of permanent or consistent flow. As proposed, the definition is a land 

feature which has two banks, a bed and a high water mark. The land feature does not lose 

its tributary status if there are man-made breaks (bridges, culverts, etc.) so long as the bed 

and bank can be identified upstream and downstream of the break. And, a tributary can 

be natural, man-altered, or manmade and includes rivers, streams, lakes, impoundments, 

canals, and ditches (unless excluded).

In direct contradiction to this definition the proposed rule also states, a tributary need not 

even have two banks, a bed and a high water mark if the water feature contributes flow 

directly or through another water to a traditionally navigable water. (Proposed rule at 

22241). The definition also goes on to include isolated water features that might 

somehow be connected through groundwater to a traditionally navigable water. Lastly, 

EPA has entirely excluded any consideration of flow or impact to traditionally navigable 
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194

waters, by including in the definition of tributaries intermittent and ephemeral streams. 

(Proposed rule at 22206). Clearly the plain sense reading of the definition of tributary is 

virtually limitless in its jurisdictional application. 

There are many examples in Nebraska of waterways that have a bed and bank and a high 

water mark but only run during precipitation events. And, unless there is a significant 

amount of precipitation, many of those examples are waters that flow only a short 

distance before evaporating or seeping into the ground. Many rarely, if ever, have flow 

that actually reaches a flowing stream even though a topographic map may indicate that it 

does. This is especially true in the more arid western part of the state. Also, there are 

thousands of miles of "ditches" in Nebraska constructed either as part of public and 

private roadways or are on the land for various reasons to help direct water flow during 

storms or wet periods. To include these features as being subject to federal jurisdiction is 

unnecessary and will have little or no positive impact on water quality.

The Supreme Court has clearly articulated there is a limit to CWA jurisdictional 

authority. This limit is the commerce clause, the term navigable and a finding of 

“significance” in impact to traditionally navigable waters. See SWANCC v. Army Corps 

of Engineers, 531 U.S. 159 (2001). In SWANCC the Court pointed out the authority of the 

“We cannot agree that Congress’ separate definitional use of the phrase “waters of the 

United States” constitutes a basis for reading the term “navigable waters” out of the 

statute.” Id. at 172.

“[It] is one thing to give a word limited effect and quite another to give it no effect 

whatever. The term "navigable" has at least the import of showing us what Congress had 

in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that 

were or had been navigable in fact or which could reasonably be so made.” Id.

Furthermore, when making determinations of what waters are jurisdictional for purposes 

of the CWA outside the scope of traditionally navigable waters the Supreme Court has 

always indicated that not just any tenuous connection will suffice. “It is the significant 

nexus...that informed our reading of the CWA.” SWANCC v. Army Corps of Engineers, 

531 U.S. 159, 167 (2001). This ““significant nexus” [or degree of impact of a connection] 

to waters that are or were navigable in fact or that could reasonably be so made” is 

required. Rapanos v. Army Corps of Engineers, 547 U.S. 715, 759 (2006).

Not only would "tributaries" be categorically subject to federal CWA jurisdiction but also 

any "adjoining" waters will be included. Adjoining waters include "neighboring" waters 

to tributaries. Neighboring waters are those that are located within a "riparian area" or 

"floodplains" or waters with a surface or shallow subsurface connection. In Nebraska, 

there are many areas that are flat and the state has many miles of rivers and streams 

creating expansive flood prone areas. Therefore, many of Nebraska's rivers and streams 

have extensive riparian and floodplain areas. Looking at the plain meaning of these 

definitions, Nebraskans have deep concerns that many areas of the state will be 

categorically defined as jurisdictional waters. If enacted as proposed, the interpretation of 

these definitions will be immensely important. These definitions should be narrowed to 

require that there is water flow present in a tributary for a significant amount of time to 

trigger jurisdiction. Or, provide some test that allows for the field personnel to exclude 

tributaries that only rarely contribute to the water quality of the identified traditionally 
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195

navigable water. Nebraska can provide many examples of tributaries that, even at their 

glory, do not contribute to water quality impacts of any navigable water.

Again, this interpretation of “adjacent” runs afoul of the CWA and Supreme Court 

rulings which does not allow EPA to assert jurisdiction over every open water in a 

floodplain and riparian area if they are isolated and do not have a significant connection 

to traditionally navigable waters. Justice Kennedy in his concurring opinion in Rapanos 

stated “...the dissent would permit federal regulation whenever wetlands lie alongside a 

ditch or drain, however remote and insubstantial, that eventually may flow into traditional 

navigable waters. The deference owed to the Corps’ interpretation of the statutes does not 

extend so far.” Rapanos v. Army Corps of Engineers, 547 U.S. 715, 778 (2006). (p. 6-8)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., and C. The agencies' significant 

nexus determinations are reasonable and based on the science, the law, and the 

agencies' experience and technical expertise. Preamble III and IV, Technical 

Support Document, II and VI.

10.256 Unlawful expansion of federal agency jurisdiction under CWA by improper application 

of the “significant nexus” test for determining CWA jurisdiction according to Rapanos v. 

United States, 547 U.S. 715 (2006).

In Rapanos, the Supreme Court analyzed when “adjacent wetlands” may be jurisdictional 

under the CWA. See Rapanos v. United States, 547 U.S. 715 (2006). Justice Kennedy in 

his concurring opinion articulated at times agencies could “identify categories of 

tributaries that due to their volume of flow, their proximity to navigable waters, or other 

relevant considerations are significant enough that wetlands adjacent to them are likely, 

in the majority of cases to perform important functions for an aquatic system 

incorporating navigable waters.” Id. at 781. The entire analysis of “adjacency” in 

Supreme Court case law goes no further than wetlands adjacent to these major tributaries. 

However, EPA has illegally expanded their jurisdictional authority with the proposed rule 

by reading “wetlands” completely out of the “adjacency” and “significant nexus” analysis 

and is now claiming to assert not only “adjacent wetlands” automatically jurisdictional 

but that all “adjacent waters” are. (Proposed rule at 22269).

The literal interpretation of the proposed rule would be that a tributary (which is merely a 

discernible bed, bank and high water mark) and all of the adjoining riparian areas and 

floodplains would be under CWA jurisdiction. Read this way, which is the most direct 

reading, much of Nebraska would be categorically under federal jurisdiction with much 

of the rest left wondering if its "other waters" would pass the significant nexus test. This 

is because the proposed rule creates an additional determinant of jurisdiction. The term, 

"other water" refers to waters that cannot be considered "adjacent" to downstream 

jurisdictional waters and that are not tributaries of such waters. "Other waters" are found 

outside the riparian area and the floodplain, since waters within those areas are 

considered to be adjacent. As such, wetlands that are other waters typically would have 

"unidirectional flow". Fed Reg at 22246. Those isolated wetlands or land features would 

be viewed individually or collectively in a watershed to determine if they have 

"significant nexus" to traditional navigable waters. So, there would still be a Corps field 

determination of these features of the land to determine CWA jurisdiction. The Federal 
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196

Register discussion of the "significant nexus" test relies almost exclusively on science in 

its evaluation.

The Supreme Court significant nexus test went beyond pure science and also would ask, 

"so what?" In other words, science alone may show a connection but common sense 

should prevail when there is no likely impact on water quality. The recent §404(f)(l)(A) 

normal farming activity exemption interpretive rule did not help clear up uncertainty and, 

in fact, leads to more questions. "Normal farming" as an exemption to the CWA has 

always been interpreted broadly and the interpretive rule narrows this historical treatment 

and applies a prescriptive method of "normal farming" as defined by certain NRCS 

Standards. This prescriptive, intrusive approach to narrowing the CWA exemption is 

aligned with the attempt to categorically classify certain areas as jurisdictional. The 

cumulative effect is dictation by the agencies of land practices which exceeds authority 

granted to the agencies by Congress in the CWA.

The cumulative impact of the changed process and determinations under §404 will be to 

expand the federal CWA jurisdiction. Land use features such as ditches, waterways, and 

dry creek beds which rarely carry water will now categorically be under federal 

jurisdiction. Isolated wetlands and other waters outside of these areas may still be subject 

to CWA jurisdiction after a Corps determination of significant nexus. The EPA states that 

the purpose and intent of this proposed rule is to provide clarity and certainty to the 

current analysis and decision-making under §404. In my opinion, there will continue to 

be uncertainty in the §404 jurisdictional determination process caused by the new 

definitions.

Instead of the proposed rule, EPA and the Corps should either fix the current bureaucratic 

nightmare of §404 permitting or propose a rule that truly narrows down water bodies that 

should be protected by the CWA. In either case, the current proposal should be 

withdrawn. (p.9)

Agency Response: The rule is narrower in scope than the existing regulation and 

is consistent with the statute and the caselaw. Technical Support Document, I. A, B. 

and C. The agencies have made reasonable significant nexus determinations. 

Preamble, III and IV; Technical Support Document, II, IV, V and VI. The agencies 

have withdrawn the Section 404(f) interpretive rule. 

10.257 An equally important area of impact on Nebraska is a concern that the attempt to fix the 

§404 problem creates many more problems under other sections of the CWA. If enacted 

as proposed, the definition of "waters of the United States" would affect the scope of all 

provisions of the CWA that use the term. This would include the §402 National Pollutant 

Discharge Elimination System (NPDES) permit program; the §303 water quality 

standards and total maximum daily load programs; the §401 state water quality 

certification process; and the §311 oil spill program. As noted earlier, the Existing 

Guidance (the model for this rule) was limited on its face to §404 determinations and had 

no practical impact on the other sections listed above. By essentially overlaying the 

Existing Guidance (as modified by the proposed rule) on these other sections, EPA will 

create significant cost and confusion, increase unnecessary bureaucracy, infringe on state 

programs, and expose agricultural producers to new liability.
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197

There is currently a difference in use and application of the definition in the CWA of 

"waters of the United States" as it is utilized in various sections of the Act. The reason for 

this is easily explained. Other than the §404 program and the §311 oil spill program, the 

CWA is essentially administered by the states with delegated programs. All but a handful 

of states have CWA programs delegated to them. In Nebraska, the Nebraska Department 

of Environmental Quality (NDEQ) has been delegated all CWA programs other than 

§404 and §311 since the mid-1970s. In order to have an approved program, EPA must 

determine that the state's laws are consistent with the CWA. That would include an 

evaluation of the state equivalent definition of water bodies covered. In Nebraska, the

definition of "waters of the state" is found in Neb.Rev.Stat. §81-1502(21) which was 

reviewed and approved by EPA. The wording of that definition is not identical to the 

wording of the definition of "waters of the United States" in the CWA. In fact, the 

wording is quite different. Wisely, Congress allowed states to craft their programs to be 

the most fitting to the state so long as the provisions were at least as stringent as the 

federal counterpart. The concept was one of "cooperative federalism" in which the federal 

government sets the broad goals and individual states reach the goals in a manner most 

appropriate for its citizens and based on its physical characteristics. As a result, the 

NDEQ has administered the §401, §402 and §303 programs using its unique "waters of 

the state" definition for nearly forty years. The NDEQ has applied that definition to 

literally thousands of permitting decisions without ever once referring to the Existing 

Guidance. During those forty years, the NDEQ's decisions have been overseen by the 

EPA and have been in accordance with the CWA. For agriculture in Nebraska, there is an 

understanding of what a "water of the state" is and is not based on four decades of 

interpretation by NDEQ. The EPA in administering §311 does not utilize the Existing 

Guidance document itself but advises producers to decide if a spill could "reasonably be 

expected" to reach water (EPA SPCC Fact Sheet: Information for Farmers, January 

2014). However, the imposition of the proposed rule would create uncertainty, expansion 

of jurisdiction, and exposure to new liability for Nebraska producers. In addition, the 

federal encroachment of what is now a state delegated program runs counter to the 

concept of "cooperative federalism" which is a tenet of federal environmental programs. 

Currently, the §402 program most impacts Nebraska agriculture in permit requirements 

for certain livestock operations and pesticide applications on or near water. For livestock 

producers, the NDEQ first started regulating discharges to "waters of the state" in 1974. 

Thousands, if not tens of thousands, of livestock producers have been visited by the 

NDEQ since that time. The NDEQ's program is to observe an operation to determine if 

waste or runoff has the potential to impact waters of the state. If there is a potential to 

impact water quality then the producer must either change the operation to avoid the 

potential impact or control the waste and runoff such that it will not impact water quality. 

Many producers, especially small producers, have been able to modify their operation or 

construct mitigating landscape features (water diverting berms or waterways, for 

example) to avoid impacting waters of the state. Likewise, producers have been 

constructing livestock waste control facilities under state permits. These are state 

construction standards for engineered facilities to handle all waste and it is common to 

use land application of waste as part of the operation. All decisions in these programs 

have relied on the state definition of regulated water bodies for forty years. In addition, 

many producers have gone through the NPDES permitting process and are currently 
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198

operating under a General Permit or an Individual Permit. This regulatory structure has 

evolved at the state level in tandem with the federally delegated NPDES program since 

its inception. All determinations have been made under the state definition of regulated 

waters. If the proposed rule is adopted, the Nebraska regulatory scheme suddenly leaves 

the producer wondering if his or her operation is effectively permitted or exempted. This 

is because, with the broad categorical definition of tributaries and neighboring waters, it 

is possible that currently exempted operations may now be subject to federal CWA 

jurisdiction. What's worse is that a producer may have, in good faith, constructed a 

landscape feature to divert flow away from livestock operations and now those very 

features may themselves be a "tributary" or an "adjacent" water. This will cause 

confusion, increase costs and will expose producers to new liability to enforcement from 

the federal or state government or to citizen suits under the CWA. This federalization of a 

current state program also infringes states’ rights and runs counter to the concept of 

"cooperative federalism". In Nebraska, farmers and ranchers have rarely been subject to 

NPDES permits other than the livestock program (and the recent pesticide permits which 

will be discussed later). The expansion of the definition to categorically include 

tributaries and waters adjoining tributaries takes in many new types of waters and land 

features. It is an additional concern that the Interpretive Rule treatment of "normal 

farming" activities does not apply to sections other than §404. That creates a question 

mark and added confusion over what differences there would be between §404 and the 

rest of the Act as it relates to the farming exemptions. Many of the questions that have 

long ago been answered or understood will now be at issue again. For example, if a 

farmer or rancher incidentally deposits fertilizer into a ditch or water way we know that 

most likely we are not dealing with a "point source discharge to waters of the United 

States" (the test for a permit under §402) because the area has not been deemed 

jurisdictional and this incidental activity would be exempt under the current application 

of the Act. With the proposed change, this same incident could occur in a categorically 

determined jurisdictional area and not be considered "normal farming" activity under 

NRCS Standards. Does that mean that a §402 permit is required? This increased 

confusion and uncertainty is not necessary. Again, the Nebraska definition of waters of 

the state is in place and has been implemented for forty years in a rational fashion. There 

is no problem that needs to be fixed in Nebraska. The recent need to establish a process to 

obtain coverage for pesticide applications "on or near" water creates another point of 

potential turmoil if the proposed rule is adopted. The National Cotton Council of America 

v. EPA decision caused much confusion on how states would issue permits for 

application of pesticides on or near water bodies. The NDEQ developed and issued a 

General Permit with cooperation from Region VII. The General Permit is appropriate for 

Nebraska's varying conditions. It may not, however, cover all of the expansion of 

categorical federal jurisdiction and "other waters" as contemplated in the proposed rule. 

Nebraska agricultural producers are directly impacted by this issue and any change is 

unnecessary because the State has adequately addressed any concern here. In summary, 

an expansion of CWA jurisdiction and an overlay of §404 decision-making process to 

§402 does not make sense. The State of Nebraska has developed a surface water 

discharge permitting system that is now built on forty years of implementation. EPA 

should not try to fix what is not broken. The proposed rule will expose producers to 
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199

liability and uncertainty by drastically changing the NPDES program with an expanded 

federal definition. (p. 10-11)

Agency Response: As the agencies stated in the preamble to the proposed rule, the 

term “navigable waters” is used in a number of provisions of the CWA, including 

the section 402 National Pollutant Discharge Elimination System (NPDES) permit 

program, the section 404 permit program, the section 311 oil spill prevention and 

response program, the water quality standards and total maximum daily load 

programs under section 303, and the section 401 state water quality certification 

process. While there is only one CWA definition of “waters of the United States,” 

there may be other statutory factors that define the reach of a particular CWA 

program or provision.

The final rule and the preamble provide definitions and clarifications of the key 

terms that demarcate the boundaries of CWA jurisdiction and provide for increased 

clarity, certainty and consistent implementation. Preamble, IV, Technical Support 

Document, I.C., and General Compendium The rule is narrower in scope than the 

existing regulation and is consistent with the statute, caselaw and the Constitution. 

Technical Support Document, I. A, B. and C. The agencies have withdrawn the 

Section 404(f) interpretive rule. The National Cotton Council decision is outside the 

scope of the rule.

10.258 The NDEQ has also administered the §401 and §303 programs since delegation in the 

1970s. The impact on §401 will be an increase in the number of certifications that the 

State will need to issue because there will be more federal actions to trigger certification 

needs. This may add more bureaucracy, time, and red tape to the existing process. This 

will increase resource needs of state government and will potentially raise the NDEQ's 

budget. The §303 program will be impacted by the increased number of water bodies 

subject to water quality standards. The NDEQ has been monitoring and assessing water 

bodies for forty years based on its interpretation of the state definition of waters of the 

state. EPA has approved the state program and, thus, has approved the definition. The 

addition of more water bodies will add to the state burden without additional resources 

which will lead to the need for more state resources. In addition, the water bodies that are 

subject to state assessment will also need to be evaluated to determine if they meet an 

assigned beneficial use. If the beneficial use is not being met, the water body may be 

impaired and need to be listed on the §303(d) list of impaired water bodies. That would 

trigger the requirement that a total maximum daily load (TMDL) be prepared which lays 

out "reasonable assurances" to bring the water body out of impaired status. Additional 

TMDLs will put added burdens on producers. If EPA's expanded jurisdictional reach is 

realized under the propose rule, TMDLs may be written that include reasonable 

assurances that incorporate regulatory controls over newly defined CWA waters. Under 

the "other waters" definition, there could be entire watersheds that are subject to TMDLs 

with mandatory requirements to bring the isolated wetlands within it back into attainment 

with water quality standards. Nebraska agriculture should be concerned that this is an 

unwarranted reach of regulatory authority beyond the intent of the CWA or the holdings 

of the Supreme Court. The federal encroachment into the §303 process is another 

illustration of the erosion of cooperative federalism. The NDEQ has developed a 

successful model of a voluntary process whereby priority watersheds can be protected 
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200

using state, local, and federal resources to leverage private investment. There have been 

very successful efforts in Nebraska and around the country that are collaborative 

watershed projects using state, local, federal, and private (agricultural producers and land 

owner) resources. If these same efforts had been under a mandatory regulatory program, 

the results would have been much less successful. In fact, an unintended consequence of 

this proposed rule would be to create a disincentive for producers to install conservation 

measures at their operations. Why install conservation terraces if there is a question as to 

how that land feature will be viewed under the new rule? Why would a producer 

voluntarily try new conservation practices if they would raise the jurisdictional issue and 

potentially require a permit? Another significant concern of Nebraska agriculture should 

be the effect of the proposed rule on the §311 oil spill program. Due to the expanded 

jurisdiction to include tributaries and water adjoining tributaries and other waters, there 

will be more instances of the need to prepare a Spill Prevention, Control, and 

Countermeasures Plan (SPCC) plan. Currently, the EPA Fact Sheet advises producers to 

determine if a spill would "reasonably" reach water to decide if the operation needs a 

plan. With the blanket categories of jurisdictional waters that would be subject to CWA 

jurisdiction, that rule of thumb would surely change Many producers would have to 

assume that they would need a SPCC plan since the jurisdictional question would be so 

far reaching and unpredictable. This change will place an additional burden on producers 

and create an additional liability exposure without additional benefits to water quality. 

(p.10-12)

Agency Response: The agencies considered impacts on implementing programs. 

Preamble, V and economic analysis in the administrative record.

10.259 Unlawful expansion of federal agency jurisdiction through the illegal regulation of 

groundwater under the CWA. As discussed, the statutory definition of “waters of the 

United States” does not include groundwater and EPA itself recognizes that 

“groundwater, including groundwater drained through subsurface drainage systems” are 

not “waters of the United States.” (proposed rule at 22273-22274). We continue to also 

be concerned about the potential for groundwater sources to be treated] as "waters of the 

United States". EPA has commented that this isn't so and the proposed rule itself contains 

an exclusion for groundwater. However, the definition of "adjacent" and "neighboring" 

would include "waters with a shallow subsurface hydrologic connection or confined 

surface hydrologic connection" to jurisdictional water. There are many areas in Nebraska 

where there is a hydrologic connection of surface and ground water. In fact, there are 

entire river basins where this phenomenon exists. Are all riparian and floodplain areas 

with a hydrologic connection of ground and surface water now going to be subject to 

CWA jurisdiction? What are the limits of this language? The impact of this interpretation 

is critical for Nebraska. If the answers to the questions above are in the affirmative, then a 

whole new layer of types of water and types of CWA permits needed come into play. The 

proposed rule needs to be more explicit as to what subsurface connections are covered, if 

any. The CWA was not meant to cover groundwater and it should be excluded from 

jurisdictional coverage. (p.12-13)

Agency Response: The rule explicitly excludes groundwater from the definition of 

“waters of the United States.” The rule does not include a provision defining 

adjacency and neighboring based on shallow subsurface. Preamble IV. While the 
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201

agencies acknowledge that shallow subsurface flow may be an important factor in 

evaluating a water on a case-specific significant nexus determination this does not 

mean that shallow subsurface connections are themselves “waters of the United 

States.” Preamble IV. The rule is consistent with the statute. Technical Support 

Document, I. A.

Missouri and Associated Rivers Coalition (Doc. #15528)

10.260 Congress enacted the CWA as a means to exercise its traditional commerce power over 

navigation, and it is clear Congress intended to create a partnership between the Federal 

agencies and states to jointly protect the nation’s water resources. The proposed rule 

reaches well beyond what Congress intended and expands the scope of the CWA to 

isolated, non-navigable waters. Additionally, it is contrary to the Supreme Court ruling in 

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers

(SWANCC). The SWANCC Court noted that the word “navigable” in the CWA had been 

given limited effect, in the sense that the CWA could apply to wetlands and other waters 

that were not themselves navigable. But the Court went on to make clear that “limited 

effect” is not the same as “no effect whatever.” The proposed rule seeks to strip the term 

navigable of having any meaningful effect. In Rapanos v. United States the Supreme 

Court identified limits to Federal authority under the CWA. Although the meaning and 

intent of Rapanos have been the subject of extensive debate, one aspect of the case is 

certain: it limits Federal jurisdiction. The Agencies are now ignoring those limits as well 

as Supreme Court precedent. The multiple opinions in the Rapanos case and the tests put 

forth by the Justices provide a rather complex framework for determining the scope of 

CWA jurisdiction. Even so, the decision-making process arising from that framework is 

defensible. Over time and through continued application the determinations made 

thereunder are becoming increasingly consistent and repeatable. Having already strayed 

far from the initial intent of Congress, the Agencies are now disregarding the clear 

outcome of Rapanos by having put forth a proposed rule that would essentially remove 

the remaining limits to establishing Federal jurisdiction under the authority of the CWA. 

The claim by the Agencies that the proposed rule will only slightly (approximately 3%) 

expand jurisdiction is not based on an actual field application, but rather an internal 

review of existing records and the information contained therein. It is to be expected that 

data in existing records would be what was relevant under the existing rule, rather than 

that required for a determination under the proposed rule. Efforts to analyze application 

of the proposed rule have found that it will significantly expand jurisdiction, and in some 

areas the amount of jurisdictional waters (river miles and number of ponds) may more 

than double. This Federal overreach by the Agencies will usurp any meaningful 

authoritative role for the states and put in place an approach that can be used to exercise 

Federal control over any and all waters, including those that have been traditionally 

identified and regulated as “Waters of the State.” (p. 4)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute, caselaw and the Constitution. Technical Support 

Document, I.A., B., and C
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

202

Regulatory Environmental Group for Missouri (Doc. #16337.1)

10.261 The Proposed Rule relies too heavily on Justice Kennedy’s concurring opinion in 

Rapanos v. United States, 547 U.S. 715 (2006) and then impermissibly expands Justice 

Kennedy’s more cautious approach to determining what constitutes a Waters of the 

United States. 

Two tests for jurisdiction arose from the Rapanos decision. The first test comes from the 

plurality opinion authored by Justice Scalia which essentially holds that jurisdiction 

applies only to relatively permanent waters. The second test is drawn from the sole 

opinion of Justice Kennedy who wrote that jurisdiction stems from finding a “significant 

nexus” of waters having an ecological connection. The Proposed Rule overrides the 

Plurality test and expands the Kennedy test to the ultimate extent by equating any 

connectivity to significant ecological function, thereby proposing an unfettered and 

expansive view of federal authority. Such a parsing of Justice Kennedy’s analysis of 

“significant nexus” ignores his own caveat that a mere hydrologic connection does not 

bestow ecological significance to certain waters. In short, Kennedy’s test requires a 

caseby- case determination. Significant nexus is more than a speculative or insubstantial 

effect on the chemical, physical or biological integrity of a navigable or interstate water 

or territorial sea. As Justice Scalia points out in Rapanos, the significant nexus test is 

susceptible to the interpretation that anything that affects “waters of the U.S.” is in fact 

“waters of the U.S.” at 755. In so doing, the Proposed Rule in untethered from any 

rational tie to the language of the CWA and the constitutional underpinnings thereof. 

The CWA is premised on the federal government's authority to regulate commerce on 

“navigable waters.” The Supreme Court in prior cases has noted the expansion of the 

traditional term “navigable waters” but also has long insisted that the term must carry 

some of its original substance and cannot be read out of the CWA. Accordingly, the 

Court wrote: 

“... it is one thing to give a word limited effect and quite another to give it no 

effect whatever. The term ‘navigable’ has at least the import of showing us what 

Congress had in mind as its authority for enacting the CWA: its traditional 

jurisdiction over waters that were or had been navigable in fact or which could 

reasonably be so made.” Solid Waste Agency of Northern Cook County v. US 

Army Corps of Engineers (SWANCC), 531 U.S. 159, 172 (2001). 

In short, the Proposed Rule ignores the plain language of the CWA, prior decisions of the 

Supreme Court, and cherry picks language from Justice Kennedy’s concurring opinion in 

Rapanos to support the expansion of federal authority. 

The EPA should therefore withdraw the proposed rule and substantially revise it to 

correctly follow the Clean Water Act and the Supreme Court’s Rapanos decision. 

The Federal Agencies erroneously assumed that Justice Kennedy’ concurring opinion 

governs the Supreme Court’s interpretation of the Clean Water Act’s jurisdictional limits 

and method to determine jurisdiction classification of a water. No opinion in Rapanos

commanded a majority. Justice Kennedy agreed with four Justices to remand the case 

back to the lower court, but wrote a separate opinion. The Proposed Rule treats Justice 

Kennedy’s separate opinion as authority, when in fact, three appellate circuit courts have 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

203

held that both the Kennedy opinion and the Plurality opinion of Justice Scalia have 

precedential value. In a 1977 decision, the Supreme Court set out a standard to determine 

the precedential value where no opinion commanded a majority of justices. According to 

the Court: 

“When a fragmented Court decides a case and no single rationale explaining the 

result enjoys the assent of five Justices, the holding of the Court may be viewed as 

that position taken by those Members who concurred in the judgments on the 

narrowest grounds.” Marks v. United States, 330 U.S. 188, 192 (1977) (emphasis 

added). 

What constitutes the “narrowest ground” is not always easy to determine, but three 

appellate courts have held that Justice Kennedy’s concurrence is not the narrowest 

ground and therefore should not be treated as the only opinion that carries precedential 

value in Rapanos. (p. 2-4)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. All 

nine of the United States Courts of Appeals to have considered “the narrowest 

grounds” under Marks have stated that Justice Kennedy’s significant standard may 

be used to establish applicability of the CWA.

Michigan United Conservation Clubs (Doc. #16395)

10.262 When passing the Clean Water Act in 1972, Congress made it clear that the scope of the 

Clean Water Act was to be far-reaching. The Act’s ambitious goal—“to restore and 

maintain the chemical, physical and biological integrity of the Nation’s water”[1]—

required extensive federal authority over the “Nation’s waters.” The record of Congress’ 

deliberation demonstrates that that Congress intended the Clean Water Act “be given the 

broadest possible constitutional interpretation unencumbered by agency determinations 

which have been made or may be made for administrative purposes.”[2] Congress 

recognized that “water moves in hydrologic cycles and it is essential that discharge of 

pollutants be controlled at the source.”[3] Given Congress’ clear intent that the Clean 

Water Act address pollution at its source and its recognition that waters are 

interconnected, the scope of the proposed rule is well within Congressional intent and is 

legal.[4](p. 2)

Agency Response: The agencies agree that the rule is consistent with the statute, 

Supreme Court decisions, and the Constitution. Technical Support Document, I.A., 

B., and C. 

West Virginia Rivers Coalition (Doc. #17028)

10.263 The Proposed Rule is supported by legislative history. When passing the Clean Water Act 

in 1972, Congress made it clear that the scope of the Clean Water Act was to be farreaching. The Act's ambitious goal—"to restore and maintain the chemical, physical and 

biological integrity of the Nation's water"389 —required extensive federal authority over 

the "Nation's waters." The record of Congress' deliberation demonstrates that that 

 

389 33 U.S.C. § 1251(a).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

204

Congress intended the Clean Water Act "be given the broadest possible constitutional 

interpretation unencumbered by agency determinations which have been made or may be 

made for administrative purposes."390 Congress recognized that "water moves in 

hydrologic cycles and it is essential that discharge of pollutants be controlled at the 

source."391 Given Congress' clear intent that the Clean Water Act address pollution at its 

source and its recognition that waters are interconnected, the scope of the proposed rule is 

well within Congressional intent and is lega1.392 

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers are 

entitled to deference in decisions about the scope of Clean Water Act authority based on 

their expert ecological judgment about the role that certain kinds of waters play in the 

aquatic system,393 unless a particular interpretation "invokes the outer limits of Congress' 

power."394 Where, as here, the proposed rule is based on copious scientific evidence and 

the agencies' judgment about whether the science reveals a "significant nexus" between 

various categories of waters and downstream navigable or interstate waters, the approach 

is a reasonable and lawful interpretation of the Clean Water Act.395

Agency Response: The agencies agree that the rule is consistent with the statute, 

the caselaw, and the Constitution and that the agencies' significant nexus 

determinations are reasonable and based on the science, the law, and the agencies' 

experience and technical expertise. Preamble III and IV, Technical Support 

Document, I A, I.C. II and VI.

Greater Fort Bend Economic Development Council (Doc. #18009)

10.264 The proposed rulemaking and expanded definition and therefore regulation of Waters of 

the United States is a great distance from the statutory basis spelled out before the 

Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 

Engineers (SWANCC). This proposed rulemaking seemingly relies on Justice Kennedy's 

significant nexus test in Rapanos v. United States to expand statutory jurisdiction in this 

matter. Given SWANCC, we believe if the agency is going to interpret the meaning of 

significant nexus, it should be done narrowly and not broadly as is proposed. Finally, 

other associations in our region have commented in this matter and without reiteration, 

we fully support the points enumerated in their October 15, 2014 submission on behalf of 

the North Houston Association, The Woodlands' Development Company and West 

Houston Association. (p. 2) 

Agency Response: The rule is consistent with the statute and Supreme Court 

decisions. Technical Support Document, I.A., B., and C. 

 

390 Sen. Conf. Rep. No. 92-1236, 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Admin. News 3376 at 

3822.

391 S. Rep. No. 414 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Admin. News at 3752-53.

392 See Chevron USA. v. NRDC, 467 U.S. 837, 842-843 (1984) (holding that if Congress' intent is clear, the Court

and the agency must give effect to Congress' unambiguously expressed intent).

393 United States v. Riverside Bayview Homes, 474 U.S. 121, 132-35 (1985).

394 Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159, 172 (2001).

395 Rapanos v. United States, 547 U.S. 715, 767 (2006) (Kennedy, J., concurring).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

205

Mercatus Center, George Mason University (Doc. #12754)

10.265 The agencies present the proposed definition primarily as a means to determine over 

which waters the agencies have jurisdictions under the CWA. The ambiguity of the 

current understanding of “waters of the United States” under the CWA has led to a costly 

case-by-case system of jurisdictional determination. At times, these determinations have 

led to protracted litigation in cases such as Rapanos v. United States396 and Solid Waste 

Agency of North Cook County (SWANCC) v. US Army Corps of Engineers.

397 In these 

cases, the Supreme Court found that the agencies had expanded their jurisdiction beyond 

the original intent of the CWA.398

The proposed definitions appear to be an attempt by the agencies to reestablish 

jurisdiction over areas lost in the Rapanos and SWANCC cases through definitional 

reinterpretation. The result would extend the agencies’ reach beyond any rational 

application of the term “navigable waters” or “waters of the United States,” which is why 

the courts reduced their jurisdiction in the first place.

The Regulatory Impact Analysis (RIA) prepared by the agencies claims that the proposed 

rule would only increase de facto jurisdiction by three percent over the status quo

nationwide.399 The RIA, however, provides neither the methodology nor the reasoning 

behind this conclusion. We encourage the agencies to release their methodology for 

public scrutiny prior to any final decisions.

Environmental lawyer Joseph Koncelik notes that the definition of tributary in particular 

is so broad that “it is difficult to come up with a stream or wetland that would likely not 

fit in the definition...”

400 Furthermore, he notes that the rule includes a “catch-all 

provision” that allows the agencies to assert jurisdiction on a case-by-case basis to 

regulate streams and wetlands that might not meet the already expansive definition.401

This expands the agencies’ jurisdiction to an array of formations that share little in 

common with “navigable waters.” In combination with the uncertain meaning of 

“significant nexus” and the new definitions of “flood plain” and “riparian area,” the rule 

empowers the agencies to establish jurisdiction over virtually any water formation 

nationwide, saving for the clear exemptions delineated in the proposed rule. This 

functionally restores the agencies’ jurisdiction over waters judged outside the scope of 

the CWA by the SWANCC and Rapanos cases. (p. 3-4)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute, caselaw and the Constitution. Technical Support 

 

396 Rapanos v. United States, 547 U.S. 715 (2006).

397 Solid Waste Agency of Northern Cook City v. Army Corps of Engineers, 531 U.S. 159 (2001) (99-1178), 191 F.3d 

845, reversed.

398 SWANCC, 531 U.S. 159.

399 US Environmental Protection Agency and US Army Corps of Engineers, Economic Analysis of Proposed Revised 

Definition of Waters

of the United States, March 2014.

400 Jon Koncelik, "EPA and Corps Release Proposed Rule Defining 'Waters of the U.S.,"' Ohio Environmental Law 

Blog (blog), April 1, \ 0

2014, http:// www.ohioenvironment allawblog.com/ tags/navigable-waters ..

401 Ibid.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

206

Document, I.A., B., and C. Consistent with Justice Kennedy’s opinion, the rule is 

not based on the “any connection theory” but is instead based on the agencies’ 

careful examination of the science and the law to make a determination of 

significant nexus for specified waters and to provide that certain other waters may 

be jurisdictional where a case-specific determination has found a significant nexus. 

Preamble, III, and Technical Support Document, I.B, I.C. and II. The final rule and 

the preamble provide definitions and clarifications of the key terms that demarcate 

the boundaries of CWA jurisdiction and provide for increased clarity, certainty and 

consistent implementation. Preamble, IV, Technical Support Document, I.C., and 

General Compendium. 

George Washington University Regulatory Studies Center (Doc. #13563)

10.266 Finally, the proposed rule does not address the question of its application to waters "that 

were previously found to be non-jurisdictional, but that are re-evaluated and found to be 

jurisdictional," raising the issues of retroactivity and grandfathering.402 Even taking the 

Agencies conservative assessment in their Economic Analysis accompanying the 

proposed rule that roughly an additional 3 percent of waters would be subject to 

jurisdiction, including 17 percent of "other waters" due to all tributaries and adjacent 

wetlands being deemed jurisdictional403" it is a matter which needs further comment. 

The Agencies do not address the issues of retroactivity or "grandfathering," relative to 

waters previously nonjurisdictional but are reevaluated, and found to be jurisdictional 

under the proposed rule. The proposed rule makes many changes as to what is or is not 

jurisdictional under the CWA and would allow certain tributaries, adjacent waters or 

wetlands and “other waters” to be deemed jurisdictional on a case-specific basis going 

forward post promulgation. Even the Agencies’ very conservative assessment that only 

an additional 3 percent of waters would be found jurisdictional, including 17 percent of 

“other waters” indicates that the issue of retroactivity is a serious one.

According to the blue-ribbon legal committee providing advice to the state environmental 

commissioners, the Agencies have several options as to grandfathering “in order of the 

most restrictive to the least restrictive in exempting matters from the new regulations.”404

The options listed by the committee are cumulative, e.g., the third exemption includes the 

first and second. This is a pure policy call, but the most equitable approach would be to 

propose all seven options and seek public comment before any rule is finalized. The 

Agencies should then select the most reasonable option based on public comment with a 

view toward protecting regulated entities and citizens who previously relied on the 

absence of CWA jurisdiction to their detriment.

The seven options suggested by the blue-ribbon legal team are as follows:

a) “Only past fill activity is exempt from the new regulations.

 

402 ACOEL, at p. 46.

403 U.S Environmental Protection Agency and U.S. Army Corps of Engineers. Economic Analysis of Proposed 

Revised Definitions of the Waters of the United States, March 2014, p. 12. (For a critique of this analysis, see David

Suudig, Ph.D., Review of 2014 EPA Economic Analysis of Proposed Revised Definition of Waters of the United 

States ('I'he Brattle Group), May 15, 2014, prepared for 'l'he Waters Advocacy Coalition.)

404 ACOEL, at p. 51-52.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

207

b) All development associated with an authorized action is exempt from the new 

regulations for the term of the authorization but compliance is required for permit 

extensions and reauthorizations.

c) All development associated with authorized action is exempt from the new 

regulations for the term of the authorization and for permit extensions and 

reauthorizations.

d) All development associated with an application filed as of a particular date (for 

example April 21, 2014 the date of the proposed rule) is exempt from the new 

regulations.

e) All development associated with an approved JD [Jurisdictional Determination] is 

exempt from the new regulations for the period contained in the approval.

f) All development associated with a Preliminary JD is exempt from the new 

regulations, if applying these new rules to a particular project would result in 

substantial hardship to a permit applicant.

g) All development associated with a mitigation bank is exempt from the new 

regulations for the period of the banking agreement unless otherwise mutually 

agreed to by the banker and the Corps.”405

The new terms and definitions introduced by the Agencies in the subject rulemaking are 

abstract, open-ended and contingent, at least to some extent, on variable field conditions 

and subjective staff observations and judgment absent more quantitative or geographic

criteria or definition, say, of significant nexus. So it is necessary to protect those 

regulated entities and citizens who have acted in reliance on the previous stance of the 

Agencies toward jurisdiction. “Grandfathering,” in the circumstances, is equitable, fair 

and economically efficient.

The Agencies should address the retroactivity problem by including a “grandfather” 

provision in the proposed rule after proposing seven options offered by the blue-ribbon 

legal team advising state environmental commissioners and receiving public comment on 

them. (p. 9-10)

Agency Response: Under existing Corps’ regulations and guidance, Corps’ 

approved jurisdictional determinations generally are valid for five years. The 

preamble makes clear that the agencies will not reopen existing approved 

jurisdictional determinations unless requested to do so by the applicant. All 

jurisdictional determinations made after the effective date will be made consistent 

with this rule. The rule is narrower in scope than the existing rule. Technical 

Support Document, I.B. The rule is not vague and meets Constitutional due process 

requirements. Technical Support Document, I.C. The final rule and the preamble 

provide definitions and clarifications of the key terms that demarcate the 

boundaries of CWA jurisdiction and provide for increased clarity, certainty and 

consistent implementation. Preamble, IV, Technical Support Document, I.C., and 

General Compendium

 

405 Id. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

208

10.267 The Agencies have misconstrued the law by de-coupling the SWANCC decision from 

Justice Kennedy’s opinion in Rapanos. The Agencies should defer promulgation of the 

rule and seek public comment on the relationship of SWANCC to Rapanos and revise 

both the rule and Appendix B accordingly. (p. 17)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

American Legislative Exchange Council (Doc. #19468)

10.268 [T]he proposed rule appears to conflict with two Supreme Court rulings that both 

checked the federal government’s overly broad interpretation of the CWA. In Solid 

Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001), the 

court held that isolated waters and wetlands not adjacent to navigable waters were not 

subject to regulation under Section 404 of the CWA. In the court’s decision, Chief Justice 

William Rehnquist wrote: “[t]he term ‘navigable’ has...the import of showing us what 

Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction 

over waters that were or had been navigable in fact or which could reasonably be so 

made.” In Rapanos v. United States (2006), the court made clear that wetlands under 

federal jurisdiction must have some connection or nexus to “traditional navigable 

waters.” (p. 2)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C.

10.269 WHEREAS, the proposed rule provides almost unlimited CWA federal jurisdiction, 

impairs state authority and therefore contravenes congressional intent and is not 

consistent with three distinct rulings by the Supreme Court regarding the limits of federal 

jurisdiction; (p. 4)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

United States House of Representatives, Committee on Science, Space, and Technology (Doc. 

#16386)

10.270 What is your legal justification for aggregating the impacts of isolated waters or 

wetlands? Please provide a detailed legal rationale and any supporting examples or 

precedent. (p. 7)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule based on 

the agencies’ careful examination of the science and the law to make a 

determination of significant nexus for specified waters and to provide that certain 

other waters may be jurisdictional where a case-specific determination has found a 

significant nexus. Preamble, III, and Technical Support Document, I.B, I.C. and II.

10.271 Is the EPA’s use of non-public scientific data consistent with the agency’s Scientific 

Integrity Policy? Please provide a detailed legal rationale and any supporting examples or 

precedent. (p. 8)

Agency Response: See Science Compendium. The EPA’s use of non-public 

scientific data is consistent with the agency’s Scientific Integrity Policy. Non-public 

data can take a variety of forms, e.g., data claimed as confidential business 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

209

information, Personally Identifiable Information, or data owned by third parties 

who provide analyses to the EPA but deny the EPA access to the underlying data. 

The Scientific Integrity Policy promotes a culture of transparency. At the same time, 

it acknowledges the Privacy Act and other laws, regulations and policies that might 

limit some data disclosure. See Science Integrity Policy at 2. In particular, the 

Science Integrity Policy recognizes that the EPA often uses data and information 

generated by third parties to inform its decisions. See Science Integrity Policy at 2, 

n.2. The Policy neither forecloses their use nor compels their disclosure. Instead, the 

Policy focuses on the data’s quality, noting that, under the agency’s Information 

Quality Guidelines, the EPA must review and document the quality and soundness 

of this type of data prior to use. See Science Integrity Policy at 2, n.2. 

In the interests of transparency, the Policy also calls upon the EPA to use nonproprietary data and models “when feasible.” See Science Integrity Policy at 4. But 

even this encouragement recognizes feasibility as a limiting factor. Simply put, 

sometimes the EPA needs to use proprietary data and models to support its policy 

decisions, even though this information cannot be disclosed to the public. Nothing in 

the Scientific Integrity Policy prevents the EPA from doing so. 

Similarly, as part of its stakeholder outreach or collection of public comments, the 

EPA often obtains analyses relevant to its decision-making from trade associations, 

non-governmental organizations or other interested members of the public. But 

sometimes the stakeholders do not supply the underlying data. The EPA evaluates 

the quality of these analyses as it would any other information and makes both the 

analyses and its views available to the public. 

The EPA honors the Scientific Integrity Policy in its decision-making.

10.272 What Constitutional limits to federal authority under the CWA does the EPA recognize? 

Please provide a detailed legal rationale and any supporting examples or precedent. (p. 9)

Agency Response: The rule is consistent with the Constitution. Technical Support 

Document, I.C. 

10.273 The Agency appears to abandon the Commerce Clause based limitation to jurisdiction 

and attempt to create a new science-based limitation. Please provide a detailed legal 

rationale and any supporting examples or precedent. (p. 12)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Senate Committee on Environment and Public Works, et al. (Doc. #16564)

10.274 The proposed "Waters of the United States" rule is an end-run around Supreme Court 

decisions which have confirmed the constitutional and statutory limits to Clean Water 

Act jurisdiction. When Congress passed the Clean Water Act in 1972, it predicated 

federal jurisdiction on the presence of "navigable waters."406 Congress further defined 

"navigable waters" to mean "the waters of the United States, including territorial seas," 

 

406 In general, the Clean Water Act prohibits the unauthorized discharge of pollutants, and defines "discharge of a

pollutant" to mean "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

210

expressly referencing the former term in the statute's various regulatory programs.407 In 

so doing, Congress evidenced its desire that navigability would serve as a foundational 

concept for Clean Water Act jurisdiction. 

The Clean Water Act's legislative history illustrates Congress's intent to ground federal 

jurisdiction in navigability. Although "waters of the United States" provided a "new and 

broader definition" for the term "navigable waters," the purpose of this new definition 

was to align the statute with the understanding that "there is no requirement in the 

Constitution that the waterway must cross a State boundary in order to be within the 

interstate commerce power of the Federal Government."408 Under the new definition of 

"navigable waters" as "waters of the United States," navigability would remain critical to 

jurisdictional inquiries, but interstate concerns less so: 

“[I]t is enough that the waterway serves a link in the chain of commerce among the States 

as it flows in the various channels of transportation- highways, railroads, air traffic, radio 

and postal communications, waterways, et cetera. The "gist of the Federal test" is the 

waterway's use "as a highway," not whether it is "part of a navigable interstate or 

international commercial highway."409

Thus, Congress "was clear that the [Clean Water Act] was anchored by the concept of

navigability."410

The Supreme Court has confirmed that the term "navigable waters" constrains EPA's and 

the Corps' authority to regulate discharges into "waters of the United States." In Solid 

Waste Agency of Northern Cook County v. United States Army Corps of Engineers 

(SWANCC), the Court held that isolated, nonnavigable ponds were beyond the agencies' 

statutory authority under the Clean Water Act.411 And in Rapanos v. United States, a 

majority of the Court rejected the Corps' attempt to designate wetlands located near 

drainage ditches as "waters of the United States.',412 These cases underscored that "[t]he 

term 'navigable' has at least the import of showing ... 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."413

The proposed "waters of the United States" rule defies the Supreme Court's recognition 

of the statutory limits Congress placed upon the agencies. In fact, the proposed rule 

would reach the very waterbodies in SWANCC and Rapanos over which EPA and the 

Corps bad unlawfully asserted Clean Water Act jurisdiction.

For example, in SWANCC, the Corps had asserted jurisdiction over small ponds at an 

abandoned gravel pit. But as the Supreme Court explained, nothing in the Clean Water 

 

407 See 33 U.S.C. § 1362(7).

408 118 Cong.Rec. 33756-57 (1972) (statement of Rep. Dingell).

409 Id. (quoting Utah v. United States, 403 U.S. 9, 11 ( 1971 )) (other internal citation omitted).

410 The Clean Water Act Following the Recent Supreme Court Decisions in Solid Waste Agency of Northern Cook

County and Rapanos-Carabell: Hearing Before the S. Comm. on Environment and Public Works, 110th Cong. 44 

(2007) (statement of George J. Mannina, Jr.).

411 Solid Waste Agency of Northern Cook County v. USACE (SWANCC), 531 U.S. 159 (2001).

412 Rapanos v. United States, 547 U.S. 715 (2006).

413 SWANCC, 531 U.S. at 172.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

211

Act's text or the statute's legislative history suggested that the term "waters of the United 

States" included nonnavigable, isolated waterbodies like the ponds.414 The Court 

observed further that in order to uphold the Corps' interpretation, "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.”415 Accordingly, the Court 

held that the Corps exceeded its statutory authority in claiming that the isolated, 

nonnavigable ponds were jurisdictional.416

Remarkably, and notwithstanding SWANCC, the proposed "waters of the United States" 

rule purports to provide ample authority for EPA and the Corps to assert Clean Water Act 

jurisdiction over the isolated, nonnavigable waters at issue in the Court's decision. The 

proposed rule indicates that "waters with a shallow subsurface hydrologic connection" to 

another jurisdictional water are "adjacent" waters and thus "waters of the United States" 

per se.417 The SWANCC ponds and project site were connected to groundwater and 

located in an area with a documented groundwater connection to the Fox River.418

Therefore, applying the proposed rule's broad definition for "adjacent" waters, the 

SWANCC ponds and project site would automatically qualify as "waters of the United 

States" under the proposed rule. 

The proposed rule would also authorize EPA and the Corps to designate the ponds and 

project site as "waters of the United States" under the proposal's "other waters" provision. 

Under this provision, a waterbody may be considered a jurisdictional "other water" if 

"those waters alone, or in combination with other similarly situated waters ... located in 

the same region, have a significant nexus" to a TNW, interstate water, or territorial sea.419 

Because the proposed rule would authorize isolated, nonnavigable waterbodies to be 

"combin[ed] with other similarly situated waters in [a] region" in order to satisfy the 

proposal's "significant nexus" standard, it would be practically impossible for the 

SWANCC ponds and project site to escape the prospect of EPA or the Corps once again 

classifying them as "waters of the United States."420 

EPA and the Corps attempt to limit SWANCC to its discussion of the Migratory Bird 

Rule, appearing to recognize that the proposed rule would result in "waters of the United 

States" jurisdiction for the SWANCC ponds and project site. In the executive summary to 

the proposed rule, the agencies opine that SWANCC "held that the use of ' isolated' 

nonnavigable intrastate ponds by migratory birds was not by itself a sufficient basis for 

the exercise of Federal authority under the [Clean Water Act]."421 Similarly, in recent 

correspondence with members of the Senate Environment and Public Works Committee, 

EPA claims that the proposed rule "is consistent with [SWANCC] and precludes 

 

414 See id. at 167-169 & 168 n.3.

415 Id. at 168.

416 Id. at 174.

417 Proposed Rule, 79 Fed. Reg. at 22263.

418 See Solving the Problem of Polluted Transportation Infrastructure Stormwater Runoff: Hearing Before the 

Subcomm. of Water and Wildlife of the S. Comm. on Environment & Public Works, 113 Cong._ (2014) (response 

of J. G. Andre Monette to question for the record, on file with Senator David Vitter).

419 Proposed Rule, 79 Fed. Reg. at 22263.

420 Id.

421 Id. at 22 191. 
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establishing (Clean Water Act] protections for waters based solely on the presence of 

migratory birds."422 

These statements suggest that EPA and the Corps believe the Migratory Bird Rule was 

the only flaw in SWANCC, and that other arguments, theories, or information could have 

saved the day for the government. Yet a fair reading of the Court's decision belies the 

agencies' myopic viewpoint. The Court in SWANCC repeatedly emphasized that its 

concern was not with the Migratory Bird Rule as such, but the fact that application of the 

rule resulted in a "waters of the United States" designation over property that was 

categorically beyond the agency's statutory authority.423 The Court held that the Corps 

lacked authority over isolated, nonnavigable ponds because it "read the statute as 

written."424 The fact that the asserted jurisdiction had resulted from application of the 

Migratory Bird Rule was incidental and irrelevant to the Court's decision. 

The proposed rule's coverage of the remote wetlands at issue in Rapanos is no less 

disconcerting. In that case, the wetlands were near ditches and man-made drains, which 

in turn were located 11 to 20 miles from the nearest TNW. The Corps nonetheless 

claimed that the wetlands were "waters of the United States," and the Sixth Circuit agreed 

based on its conclusion that Clean Water Act jurisdiction could be "satisfied by the 

presence of a hydrologic connection" between a remote wetland and TNW.425

The Supreme Court rejected this broad theory of Clean Water Act jurisdiction. Writing 

for the plurality, Justice Scalia determined that "only those wetlands with a continuous 

surface connection to bodies that are 'waters of the United States' in their own right so 

that there is no demarcation between 'waters' and wetlands, are 'adjacent to ' such waters 

and covered by the [Clean Water Act]."426 In contrast, wetlands "with only an 

intermittent, physically remote hydro logic connection to 'waters of the United States'" 

were not jurisdictional under the plurality approach.427

Justice Kennedy likewise dismissed an interpretation of "waters of the United States" that 

would "permit federal regulation whenever wetlands lie alongside a ditch or drain, 

however remote and insubstantial, that eventually may flow into traditional navigable 

waters."428 In his concurring opinion, Justice Kennedy concluded that "[w]hen the Corps 

seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on adjacency 

to establishing its jurisdiction."429 But, Justice Kennedy continued, if a wetland is not 

adjacent to a TNW, "the Corps must establish a significant nexus on a case-by-case basis 

 

422 Letter from Kenneth J. Kopocis, Deputy Assistant Administrator, U.S. Environmental Protection Agency to Hon.

David Vitter (Oct. 29, 2014). 

423 See SWANCC, 531 U.S. at 168 ("In order to rule for respondents 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."), 174 ("[W]e find nothing approaching a clear statement from Congress that it intended § 404(a) to 

reach an abandoned sand and gravel pit such as we have here.").

424 Id. at 174.

425 United States v. Rapanos, 376 F.3d 629, 639 (6th Cir. 2004).

426 Rapanos v. United States, 547 U.S. 715, 742 (2006) (plurality opinion).

427 Id.

428 Rapanos v. United States, 547 U.S. at 778 (Kennedy, J., concurring).

429 Id. at 782.
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when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries."430 

The Justice remarked further 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.’” 431

Taken together, Justice Scalia's and Justice Kennedy's opinion squarely preclude EPA 

and the Corps from asserting categorical Clean Water Act jurisdiction over wetlands 

based on a mere hydrologic connection to a TNW. Yet the proposed "waters of the U.S." 

rule adopts precisely this approach: under the proposed rule, a "tributary" is jurisdictional 

per se, and includes wetlands "if they contribute flow, either directly or through another 

water" to a TNW, interstate water, or territorial seas.432 In Rapanos, there was no dispute 

that the wetlands contributed flow to a TNW, meaning that the wetlands at issue in that 

case would automatically become "waters of the U.S." under the proposed rule.433

Notably, although the proposed "waters of the U. S." rule relies heavily on Justice 

Kennedy's opinion in particular, EPA and the Corps have distorted his approach. For 

instance, Justice Kennedy suggested that the agencies "may choose to identify categories 

of tributaries that, due to their volume of flow[,] their proximity to navigable waters, or 

other relevant considerations, are significant enough that wetlands adjacent to them are 

likely ... to perform important functions for an aquatic systems incorporating navigable 

waters."434 In no way, however, does this suggestion imply that EPA and the Corps could 

identify wetlands themselves as tributaries, as they have done in the proposed rule.435 

Moreover, the tributary definition proposed by the agencies would sanction the federal 

regulation of "drains, ditches, and streams remote from any navigable-in-fact water and 

carrying only minor water volumes toward it," despite Justice Kennedy's warning against 

such a standard.436

The proposed "waters of the United States" rule also indicates that its "significant nexus" 

standard may be satisfied if a water alone or in combination with similarly situated waters 

"significantly affects the chemical, physical, or biological integrity" of a TNW, interstate 

water, or territorial sea.437 Yet Justice Kennedy's opinion makes clear that there must be a 

significant effect to the chemical, physical, and biological integrity of a downstream 

water in order for the significant nexus standard to be satisfied.438 The current proposal is 

far afield from even Justice Kennedy's tailored analysis. 

EPA and the Corps to proposal to assert "waters of the United States" jurisdiction over 

the types of waterbodies at issue in SWANCC and Rapanos is as astonishing as it is 

 

430 Id. 

431 Id. at 780.

432 Proposed Rule, 79 Fed. Reg. at 22262-22263.

433 See United States v. Rapanos, 376 F.3d at 642-643.

434 Rapanos v. United States, 547 U.S. at 780· 781 (Kennedy, J., concurring).

435 See Proposed Rule, 79 Fed. Reg. at 22263.

436 Rapanos, 547 U.S. at 781.

437 Proposed Rule, 79 Fed. Reg. at 22263.

438 See Rapanos, 547 U.S. at 780.
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alarming. Worse yet, it demonstrates that the agencies have not learned from the Supreme 

Court's direction that statutory limits contained in the Clean Water Act must be honored. 

EPA and the Corps should withdraw the proposed rule as recognition of the infringement 

upon federalism and liberty the rule would impose. (p. 9-13)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Michael Bamford, Director, The Property Which Water Occupies (Doc. #8610)

10.275 The Purpose of these Rules is that these broad interpretations of CWA by the EPA and 

ACOE resulted in the Supreme Court finding that these Federal agencies have exceeded 

the limits of jurisdictional authority. In place of defining jurisdictional limitations 

premised upon fulfilling the purpose of the CWA, the Rules again attempt to base 

jurisdiction on an ad hoc analysis from previous court rulings which held the agencies 

have discretion in interpretation of the CWA to include protecting upstream waters before 

reaching navigable waters. Judicial dicta on each site-specific issue does not replace the 

need for the EPA to present the legal basis for claiming ubiquitous jurisdiction over all 

the space water occupies, even space privately owned. Exempting activities like street 

drainage (which are difficult to resolve) or more popular activities (like recreational 

watercraft toilet flushing) indicates the Rules themselves set arbitrary and capricious 

standard as to when the CWA should be invoked. Exempting activities that would 

otherwise be a CWA violation highlights the subjective nature of invoking CWA 

jurisdiction. The Rules fail to define limits which avoid exceeding authority while still

meeting the statutory obligation. Only by basing jurisdiction on protecting the integrity of 

public/navigable waters, would the Rules avoid running afoul of the laws established to 

prevent interference with property rights and basic liberties. The presence of water alone 

establishes no basis for controlling use of property. (p. 11-12)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

10.1. TNWS, INTERSTATE WATERS, TERRITORIAL SEAS, IMPOUNDMENTS

Agency Summary Response:

The final rule makes no change to the agencies’ longstanding regulatory text for traditional 

navigable waters. The agencies disagree that the interpretation and guidance in the preamble to 

the proposed rule and in this section represents an expansion of the concept of traditional 

navigable waters. The interpretation and guidance is not an expansion from that given by the 

agencies in 2008. Further, while the 2008 attachment, the preamble to the proposed rule, and 

this section reflect the considerations the agencies while use when making traditional navigable 

waters determinations, when such a determination is part of a final agency action, if challenged, 

the federal courts will decide whether a particular water is a traditional navigable water for 

purposes of the Clean Water Act. See Technical Support Document, III.
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Specific Comments

National Association of State Departments of Agriculture (Doc. #15389)

10.276 NASDA concludes the proposed rule ignores the holding of the plurality opinion and 

inappropriately relies exclusively on Justice Kennedy’s opinion, selectively, and 

incorrectly, extrapolating provisions from Rapanos to support the proposed rule. We 

maintain that the Court held that a hydrologic connection alone is not enough to establish 

federal jurisdiction and the CWA does not extend jurisdiction to features distant from 

navigable waters and carrying only minor volumes of flow. The agencies inappropriately 

draw broad conclusions from Justice Kennedy’s concurring opinion in the proposed rule. 

The agencies’ proposal would improperly extend CWA jurisdiction far beyond agency 

authority and beyond the limits interpreted by the Supreme Court in SWANCC and 

Rapanos. The agencies must acknowledge that Congress and the Supreme Court clearly 

intend the CWA to have limits, and that states as co-regulators have environmental 

standards customized to the unique issues related to water quality regulation within their 

borders. The underlying question of WOTUS jurisdiction and the proposed rule is not so 

much a matter of science but of legal authority.439 “Navigable,” while not limited simply 

to navigable-in-fact waters, limits federal jurisdiction from including all or nearly all 

water bodies. In the SWANCC decision, the Court stated that “the word ‘navigable’ has at 

least the import of showing us what Congress had in mind as its authority for enacting the 

CWA: its traditional jurisdiction over waters that were or had been navigable in fact or 

which could reasonably be so made.”440 (p. 4)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B., and C.

Waters Advocacy Coalition (Doc. #17921.1)

10.277 The Proposed Rule’s interpretation of waters that are considered (a)(1) through (a)(3) 

waters is inconsistent with Rapanos and prior case law. Whether a water is a TNW, 

interstate water, or territorial sea ((a)(1) through (a)(3) water) is of fundamental 

importance because the proposed rule deems waters jurisdictional based on their 

relationships to these waters. The proposed rule’s broadening of the scope of waters that 

can be considered (a)(1) through (a)(3) waters has a domino effect, thereby broadening 

the scope of waters that are jurisdictional based on their relationship to (a)(1) through 

(a)(3) waters. (p. 99)

Agency Response: The final rule makes no change to the agencies’ longstanding 

regulatory text for traditional navigable waters. Technical Support Document, III.

Washington County Water Conservancy District (Doc. #15536)

10.278 SWANCC specifically held that CWA jurisdiction does not extend to “non-naviagble, 

isolated, intrastate waers.”In 2000, in the Solid Waste Agency of Cook County v. Army 

Corps of Engineers (SWANCC) case, the Supreme Court considered whether the CWA 

extended to an isolated pond located in anabandoned sand and gravel pit in northern 

 

439 Western States Water Council, letter to Gina McCarthy, EPA Administrator, November 5, 2013.

440 531 U.S. 159, 172 (2001).
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216

Illinois.441 A majority of the Court, including Justice Kennedy, explicitly rejected the 

Agencies’ assertion of jurisdiction over “nonnavigable, isolated, intrastate waters” like 

the pond at issue in SWANCC.

442 The Court observed that the Army Corps’ 1974 

regulations limited “navigable waters” to “those waters of the United States which are 

subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or 

may be in the future susceptible for use for purposes of interstate or foreign commerce,” 

and found “no persuasive evidence that the [Army] Corps mistook Congress’ intent” 

when promulgating these regulations in 1974.443

While the Court in SWANCC specifically concluded that the Army Corps’ “Migratory 

Bird Rule” was not supported by the CWA, its holding rejected any interpretation of the 

CWA that included jurisdiction over areas such as “nonnavigable, isolated, intrastate 

waters.” 444 In particular, the Court expressly held that CWA jurisdiction does not extend 

to non-wetland ponds that are not adjacent to traditional navigable waters.445 The Court’s 

broad statements regarding such isolated waters provided the central rationale for the 

result in SWANCC, and therefore cannot be treated by the Agencies as mere dicta.446

Instead, the SWANCC Court’s statements regarding isolated waters are part of its holding. 

As discussed below, the Agencies’ Proposed Rule relies on a misinterpretation of 

SWANCC that fails to recognize the Court’s broad holding regarding isolated waters.447

(p. 5-6)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.

10.1.1. Traditional Navigable Waters (TNWs)

Agency Summary Response

The final rule makes no change to the agencies’ longstanding regulatory text for traditional 

navigable waters. The agencies disagree that the interpretation and guidance in the preamble to 

the proposed rule and in this section represents an expansion of the concept of traditional 

navigable waters. The interpretation and guidance is not an expansion from that given by the 

agencies in 2008. Further, while the 2008 attachment, the preamble to the proposed rule, and the 

Technical Support Document reflect the considerations the agencies while use when making 

traditional navigable waters determinations, when such a determination is part of a final agency 

action, if challenged, the federal courts will decide whether a particular water is a traditional 

navigable water for purposes of the Clean Water Act. See Technical Support Document, III.

 

441 SWANCC, 531 U.S. at 162

442 Id. at 168

443 Id.

444 Id.

445 Id.

446 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996) (“When an opinion issues for the Court, it is not 

only the result but also those portions of the opinion necessary to that result by which we are bound.”).

447 Proposed Rule, 79 Fed. Reg. at 22,191 (describing SWANCC’s holding as follows: “the use of ‘isolated’ 

nonnavigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of Federal 

regulatory authority”).
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Specific Comments

District 5, Siskiyou County, Yreka, CA (Doc. #3099)

10.279 It is clear from the legal history that the United States derives its regulatory power from 

the Commerce Clause – specifically the power to prescribe the national rule by which 

navigation is to be conducted among the states. Over the years, this Constitutional power 

expanded, being interpreted to recognize the federal role of regulation over navigation on 

rivers that were “navigable in fact” or could be rendered navigable as a regular public 

highway for commercial transport, capable of accessing destinations in another state. 

Federal power then grew to recognize the regulation of discharges, such as sediment, that 

could obstruct navigation capacity on a navigable stream. To expand regulation into nonnavigable streams deviates from any conceivable foundation in Constitutional authority 

or jurisdiction, violates the 10th Amendment, and moves into the area of pure 

Administrative will and dictate. 

In the legal history, it is helpful to recognize that precedent evolved in three different areas -

for three different purposes: 

 For the purpose of determining early jurisdiction where "admiralty" or "maritime" 

law had application; 

 For the purpose of determining "sovereign lands" of common law States at the time 

of admission to statehood, where private land and littoral rights were subordinated to 

the common public trust; or "private rivers" of the States where private land and 

littoral rights were "vested" under patent, not subject to public trust and required just 

compensation for "takings"; and 

 For the purpose of determining federal jurisdiction under the Commerce Clause upon 

which various Acts of Congress have been based (Such as the "Rivers and Harbors 

Appropriation Act," the "Federal Water Power Act," the "Clean Water Act" and the 

"Safe Drinking Water Act."). (p. 1)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B., and C. The final rule makes 

no change to the agencies’ longstanding regulatory text for traditional navigable 

waters. Technical Support Document, III.

10.280 Article III, Section 2, Clause 1 of the Constitution of the United States declares that "The 

judicial power shall extend... to all cases of admiralty and maritime jurisdiction..." 

In England the word "maritime" referred to cases arising upon the high seas, while 

"admiralty" referred to those arising upon the "arms" of the sea, defined as "Royal 

Rivers" or navigable waters affected by the ebb and flow of the tides. "Admiralty" and 

"maritime" jurisdiction traditionally comprises two types of cases: (1) those involving 

acts, (prize cases, torts, injuries, and crimes,) and (2) those generally involving shipping 

contracts and transactions. In the first category, jurisdiction is determined by the locality 

of the act, while in the second category, subject matter is the primary determinative 

factor. 
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218

In the Judiciary Act of 1789, 1 Stat.77, ch. 20, s. 11, Congress essentially defined 

"navigable waters of the United States" as those which were navigable from the sea by 

ships with the capacity to carry 10 or more tons: 

In the Act, the federal district courts were given exclusive original cognizance] "of all 

civil causes of admiralty and maritime jurisdiction, including all seizures under laws of 

impost, navigation or trade of the United States, where the seizures are made, on waters 

which are navigable from the sea by vessels of ten or more tons burthen, within their 

respective districts as well as upon the high seas; saving to suitors, in all cases, the right 

of a common law remedy, where the common law is competent to give it;..." 

Through early cases, [DeLovio v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass. 1815) 

(Justice Story); The Seneca, 21 Fed. Cas. 1801 (No. 12670) C.C.E.D.Pa. 1829) (Justice 

Washington,)] the court broadened its interpretation of admiralty and maritime 

jurisdiction from that of the English law, to that of maritime law based in the Law of 

Nations, respected by maritime courts of all nations and adopted by most of Europe. By 

1848, the Court had stated in New Jersey Steam Navigation Co. v. Merchants' Bank of 

Boston, 47 U.S (6 How.) 334, 86:

"...whatever may have been the doubt, originally, as to the true construction of the grant, 

whether it had reference to the jurisdiction in England, or to the more enlarged one that 

existed in other maritime countries, the question has become settled by legislative and 

judicial interpretation, which ought not now to be disturbed."[See Waring v. Clarke, 46 

U.S (5 How.) 441 (1847)] (p. 1-2)

Agency Response: The final rule makes no change to the agencies’ longstanding 

regulatory text for traditional navigable waters. While the 2008 attachment, the 

preamble to the proposed rule, and the Technical Support Document reflect the 

considerations the agencies while use when making traditional navigable waters 

determinations, when such a determination is part of a final agency action, if 

challenged, the federal courts will decide whether a particular water is a traditional 

navigable water for purposes of the Clean Water Act. See Technical Support 

Document, III.

10.281 In other early cases, the superior federal power of Congress to license vessels and 

promulgate rules regarding their operation on navigable waters of the United States was 

established upon the basis of the "Commerce Clause" of the Constitution of the United 

States: 

Article I, Section 8, Clause 3 of the Constitution of the United States declares [Congress 

shall have the power] "To regulate commerce with foreign nations, and among the 

several states, and with the Indian tribes." 

In Gibbons v. Ogden, 22 U.S 1 (1824), it was established that the word "commerce" 

included "navigation." The power to "regulate," in the Commerce Clause, was the power 

"to prescribe the rule by which commerce [navigation] is to be governed." Chief Justice 

Marshall gives examples of such "rules" as: the granting of license, ("permission, or 

authority") to conduct a particular maritime trade - such as "coasting" or fishing, subject 

to certain duties, (prescribed by maritime law or those pertaining to the safety and 

comfort of passengers.) 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

219

Justice Bradley, in The Lottawanna, 88 U.S (21 Wall), stated that the maritime law 

referenced by the Constitution was intended "to [be] a system of law coextensive with, 

and operating uniformly in, the whole country. It certainly could not have been the 

intention to place the rules and limits of maritime law under the disposal and regulation 

of the several States, as that would have defeated the uniformity and consistency at which 

the Constitution aimed on all subjects of a commercial character affecting the intercourse 

of the States with each other or with foreign states." 

Although the question of "admiralty" jurisdiction itself was later determined to rest upon 

the "admiralty grant" of Article III, Section 2, Clause 1 of the Constitution of the United 

States, combined with the so-called "second prong" of the "necessary and proper clause," 

early determinations rested jurisdictional authority upon the Commerce Clause. (p. 2-3)

Agency Response: The final rule makes no change to the agencies’ longstanding 

regulatory text for traditional navigable waters. While the 2008 attachment, the 

preamble to the proposed rule, and the Technical Support Document reflect the 

considerations the agencies while use when making traditional navigable waters 

determinations, when such a determination is part of a final agency action, if 

challenged, the federal courts will decide whether a particular water is a traditional 

navigable water for purposes of the Clean Water Act. See Technical Support 

Document, III.

10.282 Federal powers under the Commerce Clause were initially determined to apply only to 

the "navigable waters of the United States," which were differentiated from navigable 

waters that were solely internal to the States. 

Chief Justice Marshall, in Gibbons v. Ogden, 22 U.S 1 (1824), first stated:

"...in regulating commerce with foreign nations, the power of Congress does not 

stop at the jurisdictional lines of the several States. It would be a very useless 

power, if it could not pass those lines. The commerce of the United States with 

foreign nations, is that of the whole United States. Every district has a right to 

participate in it. The deep streams which penetrate our country in every direction, 

pass through the interior of almost every State in the Union, and furnish the 

means of exercising this right. If Congress has the power to regulate it, that power 

must be exercised whenever the subject exists. If it exists within the States, if a 

foreign voyage may commence or terminate at a port within a State, then the 

power of Congress may be exercised within a State. 

"This principle is, if possible, still more clear, when applied to commerce 'among the 

several States.' They either join each other, in which case they are separated by a 

mathematical line, or they are remote from each other, in which case other States lie 

between them. What is commerce 'among' them; and how is it to be conducted? Can a 

trading expedition between two adjoining States, commence and terminate outside of 

each? And if the trading intercourse be between two States remote from each other, must 

it not commence in one, terminate in the other, and probably pass through a third?..." 

This was rephrased as a foundational definition by Justice Field in The Daniel Ball, 77 

U.S 557 (1870): 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

220

"...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. If we apply this test to Grand River, the 

conclusion follows that it must be regarded as a navigable water of the United 

States. From the conceded facts in the case the stream is capable of bearing a 

steamer of one hundred and twenty-three tons burden, laden with merchandise 

and passengers, as far as Grand Rapids, a distance of forty miles from its mouth in 

Lake Michigan. And by its junction with the lake it forms a continued highway 

for commerce, both with other States and with foreign countries, and is thus 

brought under the direct control of Congress in the exercise of its commercial 

power." 

Justice Shiras reviewing prior cases defining "navigable waters of the United States" in 

Levoy v. U S, 177 U.S 621 (1900) concluded: 

"...It is a safe inference from these and other cases to the same effect which might 

be cited, that the term, 'navigable waters of the United States,' has reference to 

commerce of a substantial and permanent character to be conducted thereon. The 

power of Congress to regulate such waters is not expressly granted in the 

Constitution, but is a power incidental to the express 'power to regulate commerce 

with foreign nations, and among the several states, and with the Indian tribes;' and 

with reference to which the observation was made by Chief Justice Marshall, 

shall, that 'it is not intended to say that these words comprehend that commerce 

which is completely internal, which is carried on between man and man in a state, 

or between different parts of the same state, and which does not extend to or 

affect other states.' Gibbons v. Ogden, 9 Wheat. 194, 6 L. ed. 69. 

"While, therefore, it may not be easy for a court to define the size and character of a 

stream which would place it within the category of 'navigable waters of the United 

States,' or to define what traffic shall constitute 'commerce among the states,' so as to 

make such questions sheer matters of law, yet, in construing the legislation involved in 

the case before us, we may be permitted to see that it was not the intention of Congress to 

interfere with or prevent the exercise by the state of Louisiana of its power to reclaim 

swamp and overflowed lands by regulating and controlling the current of small streams 

not used habitually as arteries of interstate commerce." 

"The trial judge instructed the jury as follows: 

'What is a navigable water of the United States? It is a navigable water which, 

either of itself, or in connection with other water, permits a continuous journey to 

another state. If a stream is navigable, and from that stream you can make a 

journey by water, by boat, by one of the principal methods used in ordinary 

commerce, to another state from the state in which you start on that journey that is 

a navigable water of the United States. It is so called in contradistinction to waters 

which arise and come to an end within the boundaries of the state. . . . But, if from 

the water in one state you can travel by water continuously to another state, and 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

221

the water is a navigable water, then it is a navigable stream of the United States. . 

. . If it was navigable, and connected with waters that permitted a journey to 

another state, then it is a navigable water of the United States...' 

"If these instructions were correct, then there is scarcely a creek or stream in the entire 

country which is not a navigable water of the United States. Nearly all the streams on 

which a skiff or small lugger can float discharge themselves into other streams or waters 

flowing into a river which traverses more than one state, and the mere capacity to pass in 

a boat of any size, however small, from one stream or rivulet to another, the jury is

informed, is sufficient to constitute a navigable water of the United States. 

"Such a view would extend the paramount jurisdiction of the United States over all the 

flowing waters in the states, and would subject the officers and agents of a state, engaged 

in constructing levees to restrain overflowing rivers within their banks, or in regulating 

the channels of small streams for the purposes of internal commerce, to fine and 

imprisonment, unless permission be first obtained from the Secretary of War. If such 

were the necessary construction of the statutes here involved, their validity might well be 

questioned. But we do not so understand the legislation of Congress. When it is 

remembered that the source of the power of the general government to act at all in this 

matter arise out of its power to regulate commerce with foreign countries and among the 

states, it is obvious that what the Constitution and the acts of Congress have in view is the 

promotion and protection of commerce in its international and interstate aspect, and a 

practical construction must be put on these enactments as intended for such large and 

important purposes." 

In Escanaba & Lake Michigan Transp. Co, v. City of Chicago, 107 U.S 678 (1883), 

Justice Field stated: 

"The power vested in the general government to regulate interstate and foreign 

commerce involves the control of the waters of the United States which are 

navigable in fact, so far as it may be necessary to insure their free navigation, 

when by themselves or their connection with other waters they form a continuous 

channel for commerce among the states or with foreign countries. Such is the case 

with the Chicago river and its branches..." 

Justice Lurton in U.S. v. Chandler-Dunbar Water Power Co., 229 U.S 53 (1913) quoting 

Gilman v. Philadelphia, 3 Wall. 713, 724, 18 L. ed. 96, 99: 

"Commerce includes navigation. The power to regulate commerce comprehends 

the control for that purpose, and to the extent necessary, of all the navigable 

waters of the United States which are accessible from a state other than those in 

which they lie. For this purpose they are the public property of the nation, and 

subject to all the requisite legislation by Congress. This necessarily includes the 

power to keep them open and free from any obstructions to their navigation, 

interposed by the states or otherwise; to remove such obstructions when they 

exist; and to provide, by such sanctions as they may deem proper, against the 

occurrence of the evil and for the punishment of offenders [admiralty law]..." 

In Economy Light & Power Co. v. U.S, 256 U.S 113 (1921), Justice Pitney stated: 
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222

"We concur in the opinion of the Circuit Court of Appeals that a river having 

actual navigable capacity in its natural state and capable of carrying commerce 

among the states is within the power of Congress to preserve for purposes of 

future transportation, even though it be not at present used for such commerce, 

and be incapable of such use according to present methods, either by reason of 

changed conditions or because of artificial obstructions ... Improvements in the 

methods of water transportation or increased cost in other methods of 

transportation may restore the usefulness of this stream; since it is a natural 

interstate waterway, it is within the power of Congress to improve it at the public 

expense; and it is not difficult to believe that many other streams are in like 

condition and require only the exertion of federal control to make them again 

important avenues of commerce among the states...." 

In the 1940 case of United States v. Appalachian Electric Power Co., 31 U.S 377, the 

Court, guided by a definition of "navigable waters" in the Federal Water Power Act 

which included waters that in an "improved condition" would be "suitable for use," 

turned from the "natural" condition standard to include rivers that had the potential to be 

artificially made navigable as navigable for the purpose of federal control under the 

Commerce Clause. Stated Justice Reed: 

"To appraise the evidence of navigability on the natural condition only of the 

waterway is erroneous. Its availability for navigation must also be considered. 

'Natural or ordinary conditions' refers to volume of water, the gradients and the 

regularity of the flow. A waterway, otherwise suitable for navigation, is not 

barred from that classification merely because artificial aids must make the 

highway suitable for use before commercial navigation may be undertaken. 

Congress has recognized this in section 3 of the Water Power Act by defining 

'navigable waters' as those 'which either in their natural or improved condition' are 

used or suitable for use. The district court is quite right in saying there are obvious 

limits to such improvements as affecting navigability. These limits are necessarily 

a matter of degree. There must be a balance between cost and need at a time when 

the improvement would be useful. When once found to be navigable, a waterway 

remains so..." (p. 3-6)

Agency Response: The final rule makes no change to the agencies’ longstanding 

regulatory text for traditional navigable waters. While the 2008 attachment, the 

preamble to the proposed rule, and the Technical Support Document reflect the 

considerations the agencies while use when making traditional navigable waters 

determinations, when such a determination is part of a final agency action, if 

challenged, the federal courts will decide whether a particular water is a traditional 

navigable water for purposes of the Clean Water Act. See Technical Support 

Document, III.

10.283 Although the law of 1789 essentially defined "navigable waters," (where admiralty law 

was to be made applicable,) as those "waters which are navigable from the sea by vessels 

of ten or more tons burthen," much confusion arose over the actual navigable capacity of 

many inland American waterways. In The Steamboat Thomas Jefferson, 23 U.S (10 

Wheat.) 428, (1825), Justice Story adopted the traditional restrictive English rule, 
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223

confining admiralty jurisdiction to the high seas and upon rivers influenced by the ebb 

and flow of the tide. 

However, in 5 Stat. 726 (1845) Congress formally extended admiralty jurisdiction over 

the Great Lakes and connecting waters. In 1851, Chief Justice Taney in The Genessee 

Chief v. Fitzhugh, 53 U.S (12 How.) 443, officially overturned the tidal ebb and flow 

requirement laid down in The Thomas Jefferson. Taney's ruling established the basis for 

subsequent judicial extension of admiralty jurisdiction to be applicable to all waters 

determined to be "navigable in fact." 

The foundational standard was given by Justice Field in The Daniel Ball, stated: 

"...The doctrine of the common law as to the navigability of waters has no 

application in this country. Here the ebb and flow of the tide do not constitute the 

usual test, as in England, or any test at all of the navigability of waters. There no 

waters are navigable in fact, or at least to any considerable extent, which are not 

subject to the tide, and from this circumstance tide water and navigable water 

there signify substantially the same thing. But in this country the case is widely 

different. Some of our rivers are as navigable for many hundreds of miles above 

as they are below the limits of tide water, and some of them are navigable for 

great distances by large vessels, which are not even affected by the tide at any 

point during their entire length. A different test must, therefore, be applied to 

determine the navigability of our rivers, and that is found in their navigable 

capacity. 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 for commerce, 

over which trade and travel are or may be conducted in the customary modes of 

trade and travel on water..." 

Justice Shiras reviewing prior cases defining "navigable waters of the United States" in 

Levoy v. U S, 177 U.S 621 (1900) cited another foundational case of The Montello, 20 

Wall. 441, sub nom. United States v. The Montello, 22 L. Ed. 394::

'The capability of use by the public for purposes of transportation and commerce 

affords the true criterion of the navigability of a river rather than the extent and 

manner of that use. If it be capable in its natural state of being used for purposes 

of commerce, no matter in what mode the commerce may be conducted, it is 

navigable in fact, and becomes in law a public river or highway. Vessels of any 

kind that can float upon the water, whether propelled by animal power, by the 

wind, or by the agency of steam, are, or may become, the mode by which a vast 

commerce can be conducted, and it would be a mischievous rule that would 

exclude either in determining the navigability of a river.' 

Justice Brewer in U.S. v. Rio Grande Dam & Irrigation Co., 174 U.s 690 (1899) clarified 

that navigational use of only a minor commercial value to trade and agriculture would not 

qualify a river to be designated as "navigable in fact": 

"...Examining the affidavits and other evidence introduced in this case, it is clear 

to us that the Rio Grande is not navigable within the limits of the territory of New 

Mexico. The mere fact that logs, poles, and rafts are floated down a stream 
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224

occasionally and in times of high water does not make it a navigable river. It was 

said in The Montello, 20 Wall. 430, 439, 'that 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 for commerce, over which trade and travel are or may be 

conducted in the customary modes of trade and travel on water.' And again: 'It is 

not, however, as Chief Justice Shaw said (Rowe v. Bridge Corp., 21 Pick. 344), 

“every small creek in which a fishing skiff or gunning canoe can be made to float 

at high water which is deemed navigable, but, in order to give it the character of a 

navigable stream, it must be generally and commonly useful to some purpose of 

trade or agriculture." 

Justice Shiras reviewing prior cases defining 'navigable waters of the United States' in 

Levoy v. U.S, cited the decision in Egan v. Hart, 165 U.S 188, 41 L. ed. 680, 17 Sup. Ct 

Rep. 300, to the effect that shallow seasonal water bodies without channels were 

categorized non-navigable, even though they could be artificially modified to become 

navigable: 

"The [Louisiana] trial judge, as to the contention that Bayou Pierre was a navigable 

stream, said: 

From Grande Ecore, where it (Bayou Pierre) enters Red river, to a point some 

miles below its junction with Tonre's Bayou,-a stream flowing out of the river,-

Bayou Pierre has been frequently navigated by steamboats. But from the point of 

junction to the dam in question it has never been navigated, and is unnavigable. 

Between these two points it is nothing but a highwater outlet, going dry every 

summer at many places, choked with rafts, and filled with sand, reefs, etc. It has 

no channel; in various localities it spreads out into shallow lakes and over a wide 

expanse of country, and is susceptible of being made navigable just as a ditch 

could be if it were dug deep and wide enough and kept supplied with a sufficiency 

of water.'

“And accordingly it was found by the trial court that Bayou Pierre was not a navigable 

water of the United States. Its judgment was affirmed by the supreme court of Louisiana, 

and the case was brought to this court and the judgment of the court below affirmed. Egan 

v. Hart, 165 U.S. 188, 41L.ed.680, 17 Sup. Ct. Rep. 300. 

Justice Pitney in U.S v. Cress, 243 U.S. 316 (1917), clarified the term “ordinary condition,” 

by a determination that to be considered a "public navigable river," the river must be 

"navigable in fact" in its natural state: 

"In Kentucky, and in other states that have rejected the common-law test of tidal 

flow and adopted the test of navigability in fact...numerous cases have arisen 

where it has been necessary to draw the line between public and private right in 

waters alleged to be navigable; and by an unbroken current of authorities it has 

become well established that the test of navigability in fact is to be applied to the 

stream in its natural condition, not as artificially raised by dams or similar 

structures; that the public right is to be measured by the capacity of the stream for 

valuable public use in its natural condition; that riparian owners have a right to the 

enjoyment of the natural flow without burden or hindrance imposed by artificial 
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225

means, and no public easement beyond the natural one can arise without grant or 

dedication save by condemnation, with appropriate compensation for the private 

right....We have found no case to the contrary...." 

"This court has followed the same line of distinction. That the test of navigability in fact 

should be applied to streams in their natural condition was in effect held in The Daniel 

Ball, 10 Wall. 557, 19 L. ed. 999...The point was set forth more clearly in The Montello,

20 Wall. 430, 22 L. ed. 391, where the question was whether Fox river, in the state of 

Wisconsin, was a navigable water of the United States within the meaning of the acts of 

Congress. There were rapids and falls in the river, but the obstructions caused by them 

had been removed by artificial means so as to furnish uninterrupted water communication 

for steam vessels of considerable capacity. It was argued that although the river might 

now be considered a highway for commerce conducted in the ordinary modes, it was not 

so in its natural state, and therefore was not a navigable water of the United States within 

the purview of The Daniel Ball decision. The court, accepting navigability in the natural 

state of the river as the proper test, proceeded to show that, even before the improvements 

resulting in an unbroken navigation were undertaken, a large and successful interstate 

commerce had been carried on through this river by means of Durham boats, which were 

vessels from 70 to 100 feet in length, with 12 feet beam, and drawing, when loaded, from 

2 to 2 1/2 feet of water. The court, by Mr. Justice Davis, declared that it would be a 

narrow rule to hold that, in this country, unless a river was capable of being navigated by 

steam or sail vessels, it could not be treated as a public highway. 'The capability of use by 

the public for purposes of transportation and commerce affords the true criterion of the 

navigability of a river, rather than the extent and manner of that use. If it be capable in its 

natural state of being used for purposes of commerce, no matter in what mode the 

commerce may be conducted, it is navigable in fact, and becomes in law a public river or 

highway....' 

Justice Van Devanter in the State of Oklahoma v. State of Texas, 258 U.S 574 (1922), 

clarified that "exceptional" use for navigation confined to "irregular and short periods of 

temporary high water" did not meet the requirements for designation as "navigable": 

"While the evidence relating to the part of the river in the eastern half of the state 

is not so conclusive against navigability as that relating to the western section, we 

think it establishes that trade and travel neither do nor can move over that part of 

the river, in its natural and ordinary condition, according to the modes of trade 

and travel customary on water; in other words, that it is neither used, nor 

susceptible of being used, in its natural and ordinary condition as a highway for 

commerce. Its characteristics are such that its use for transportation has been and 

must be exceptional, and confined to the irregular and short periods of temporary 

high water. A greater capacity for practical and beneficial use in commerce is 

essential to establish navigability..." 

In United States v. State of Utah, 283 U.S 64 (1931) Justice Hughes provides a 

comprehensive summary of the basic meaning of "navigable in fact" as defined by the 

Court: 

"...The test of navigability has frequently been stated by this Court. In The Daniel 

Ball, 10 Wall. 557, 563, the Court said: 'Those rivers must be regarded as public 
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226

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 for commerce, over which trade and travel are or may be conducted 

in the customary modes of trade and travel on water.' In The Montello, 20 Wall. 

430, 441, 442, it was pointed out that 'the true test of the navigability of a stream 

does not depend on the mode by which commerce is, or may be, conducted, nor 

the difficulties attending navigation,' and that 'it would be a narrow rule to hold 

that in this country, unless a river was capable of being navigated by steam or sail 

vessels, it could not be treated as a public highway.' The principles thus laid down 

have recently been restated in United States v. Holt State Bank, 270 U.S 49, 56, 

47, S. Ct. 197, 199, where the Court said: 

'The rule long since approved by this court in applying the Constitution and laws of the 

United States is that streams or lakes which are navigable in fact must be regarded as 

navigable in law; that they are navigable in fact when they are used, or are susceptible of 

being used, in their natural and ordinary condition, as highways for commerce, over 

which trade and travel are or may be conducted in the customary modes of trade and 

travel on water; and further that navigability does not depend on the particular mode in 

which such use is or may be had-whether by steamboats, sailing vessels or flatboats-nor 

on an absence of occasional difficulties in navigation, but on the fact, if it be a fact, that 

the stream in its natural and ordinary condition affords a channel for useful commerce.' ... 

"The question of that susceptibility in the ordinary condition of the rivers, rather than of 

the mere manner or extent of actual use, is the crucial question. The government insists 

that the uses of the rivers have been more of a private nature than of a public, commercial 

sort. But, assuming this to be the fact, it cannot be regarded as controlling when the rivers 

are shown to be capable of commercial use. The extent of existing commerce is not the 

test. The evidence of the actual use of streams, and especially of extensive and continued 

use for commercial purposes may be most persuasive, but, where conditions of 

exploration and settlement explain the infrequency or limited nature of such use, the 

susceptibility to use as a highway of commerce may still be satisfactorily proved. As the 

Court said, in Packer v. Bird: 137 U.S. 661, 667, 11 S. Ct. 210, 211, 'It is, indeed, the 

susceptibility to use as highways of commerce which gives sanction to the public right of 

control over navigation upon them, and consequently to the exclusion of private 

ownership, either of the waters or the soils under them.' In Economy Light & Power 

Company v. United States, 256 U.S. 113, 122, 123 S., 41 S. Ct. 409, 412, the Court quoted 

with approval the statement in The Montello, supra, that 'the capability of use by the 

public for purposes of transportation and commerce affords the true criterion of the 

navigability of a river, rather than the extent and manner of that use.' (p. 6-10)

Agency Response: The final rule makes no change to the agencies’ longstanding 

regulatory text for traditional navigable waters. While the 2008 attachment, the 

preamble to the proposed rule, and the Technical Support Document reflect the 

considerations the agencies while use when making traditional navigable waters 

determinations, when such a determination is part of a final agency action, if 

challenged, the federal courts will decide whether a particular water is a traditional 

navigable water for purposes of the Clean Water Act. See Technical Support 

Document, III.
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227

Offices of the Attorney Generals of Oklahoma, West Virginia and Nebraska (Doc. #7988)

10.284 The Proposed Rule involves the central issue of defining the Agencies’ jurisdictional 

reach under the CWA: what constitutes “navigable waters,” or “waters of the United 

States.” “For a century prior to the CWA, [the Supreme Court] had interpreted the phrase 

‘navigable waters of the United States’ in the Act’s predecessor statutes to refer to 

interstate waters that are ‘navigable in fact’ or readily susceptible of being rendered so.” 

Rapanos, 547 U.S at 723 (plurality opinion) (quoting The Daniel Ball, 10 Wall. 557, 563 

(1871)). Accordingly, after Congress enacted the CWA, the Corps “initially adopted this 

traditional judicial definition for the Act’s term ‘navigable waters.’” Id. (citing 39 Fed. 

Reg. 12119, codified at 33 CFR §209.120(d)(1). After a district court ruled this 

definition was too narrow, the Corps went to the opposite extreme, issuing regulations 

that sought to define “waters of the United States” as extending to the limits of Congress’ 

authority under the Commerce Clause. Id. at 724 (citing 40 Fed. Reg. 31,324-31,325 

(1975); 42 Fed. Reg. 37,144 & n.2 (1977)). 

While the Supreme Court in 1985 upheld a portion of those regulations to include 

wetlands that “actually abut[ted] on” traditional navigable waters, United States v. 

Riverside Bayview Homes, Inc., 474 U. S. 121, 135 (1985), the Court has since issued 

two significant opinions rejecting the Agencies’ overbroad assertions of CWA authority:

In Solid Waste Agency of Northern Cook County. v. Army Corps of Engineers, 531 U. S. 

159 (2001) (SWANCC), the Supreme Court examined the Corps’ asserted jurisdiction 

over any waters “[w]hich are or would be used as habitat” by migratory birds. The Court 

held that this exceeded the Corps’ CWA authority because the CWA did not reach 

“nonnavigable, isolated, intrastate waters” such as seasonal ponds. Id. at 171. The Court 

explained that its holding was supported by the doctrine that “[w]here an administrative 

interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear 

indication that Congress intended that result,” Id. at 172. adding that this concern is 

particularly important here because an overbroad interpretation of the CWA would 

“alter[] the federal-state framework by permitting federal encroachment upon a 

traditional state power,” Id. At 173. The Court explained that extending the Corps’ CWA 

jurisdiction to isolated, seasonal ponds would raise “significant constitutional questions” 

regarding Congress’ constitutional authority and that there is “nothing approaching a 

clear statement from Congress” that it had sought to invoke the outermost limits on that 

authority. Id. at 174. To the contrary, Congress specifically chose to “‘recognize, 

preserve, and protect the primary responsibilities and rights of States....to plan the 

development and use...of land and water resources...’” Id. (quoting 33 U. S. C. § 

1251(b)). (p. 3-4)

Agency Response: The rule is consistent with the caselaw and the Constitution. 

Technical Support Document, I.C.

10.285 Then, in Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court further 

narrowed the Agencies’ regulatory authority under the Act. Rapanos involved the Corps’ 

attempt to assert CWA jurisdiction over several wetlands adjacent to nonnavigable 

tributaries of core waters. The Court’s majority consisted of two opinions: 

First, Justice Scalia wrote a plurality opinion on behalf of four Justices rejecting the 

Corps’ expansive interpretation of “waters of the United States.” The plurality first 
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explained that “[i]n applying the definition of [‘waters of the United States’] to 

‘ephemeral streams,’ ‘wet meadows,’ storm sewers and culverts, ‘directional sheet flow 

during storm events,’ drain tiles, manmade drainage ditches, and dry arroyos in the 

middle of the desert, the Corps has stretched the term ‘waters of the United States’ 

beyond parody.” Id. at 734. The plurality then held that ‘‘waters of the United States’’ 

covers only ‘‘relatively permanent, standing or continuously flowing bodies of water’’ 

and secondary waters, which have a “continuous surface connection” to these relatively 

permanent waters. See Id. at 739-42. In contrast, “[w]etlands with only an intermittent, 

physically remote hydrologic connection to ‘waters of the United States’ . . . lack the 

necessary connection to covered waters.” Id. at 742. 

Second, Justice Kennedy also rejected the Corps’ interpretation, explaining that CWA

jurisdiction was only appropriate where the waters involved are “waters that are 

navigable in fact or that could reasonably be so made” or secondary waters that have a 

“significant nexus” to in-fact navigable waters. Id at 759. Writing only for himself, 

Justice Kennedy articulated that a “significant nexus” exists only where the wetlands, 

“alone or in combination with similarly situated lands in the region,” “significantly affect 

the chemical, physical, and biological integrity of other covered waters understood as 

navigable in the traditional sense.” Id. at 780. Justice Kennedy explained that the 

Agencies’ overbroad approach is impermissible because it “would permit federal 

regulation whenever wetlands lie alongside a ditch or drain, however remote and 

insubstantial, that eventually may flow into traditional navigable waters.” Id. at 778. 

Justice Kennedy added that an interpretation that permitted the Agencies to assert 

jurisdiction over a “wetlands (however remote)” or “a continuously flowing stream 

(however small)” would similarly fall outside of the CWA’s reach. Id. at 776-77 (p. 4)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.

10.286 The Proposed Rule declares that all geographically-related “adjacent” waters are always 

and per se covered by the CWA. Id. § 230.3(s)(6). The Proposed Rule defines “adjacent” 

waters as—among other features—those waters “within the riparian area or floodplain 

of” core waters, impoundments, or tributaries. Id. § 230.3(u)(l)-(2). “Riparian area” and 

“floodplain” are broad, poorly defined concepts that sweep up large portions of water, 

wetlands, and lands usually dry for most of the year. Id. § 230.3(u)(3)-(4).

Even for waters that escape the Agencies’ capacious per se categories, the Proposed Rule 

provides that such waters are covered by the CWA on a “case-by-case basis,” so long as a 

particular water “in combination with other similarly situated waters, including wetlands, 

located in the same region, have a significant nexus to a” core water. The Rule defines 

this inquiry as whether these “similarly situated waters” “significantly affect[] the 

chemical, physical, or biological integrity” of a core water. Id. § 230.3(s)(7). The Rule 

defines this inquiry as whether these "similarly situated waters" "significantly affect[] the 

chemical, physical, or biological integrity" of a core water. Id. § 230.3(u)(7).448

 

448 The Proposed Rule also includes several very narrow exceptions regarding waters that the Agencies have deemed 

never to have a "significant nexus" to core waters. Id. § 230.3(t).
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229

The sum total of these provisions is that the Proposed Rule would place virtually every 

river, creek, stream, along with vast amounts of neighboring lands, under the Agencies’ 

CWA jurisdiction. Many of these features are dry the vast majority of the time and are 

already in use by farmers, developers, or homeowners. (p. 5-6)

Agency Response: In response to comments, the rule has made changes to the 

definition of “adjacent waters” and “neighboring,” see Preamble, IV.G, and the rule 

establish limits on the case-specific significant analyses, see Preamble IV.I. 

Ephemeral waters may be tributaries as defined under the rule. Preamble IV.F, III, 

Technical Support Document, VI.

Texas Commission on Environmental Quality (Doc. #14279.1)

10.287 In SWANCC, the Court concluded that the presence of migratory birds was not sufficient 

to provide the USACE with jurisdiction over an isolated, non-navigable, intrastate water 

under the CWA. The TCEQ believes that EPA has not demonstrated a need for these 

water bodies to be under federal jurisdiction, nor have EPA and the USACE 

demonstrated how the proposed rule is consistent with SWANCC. 

The CWA defines the term "navigable waters" as "the waters of the United States, 

including the territorial seas." In Rapanos, Justice Scalia stated that waters of the United 

States must be "relatively permanent, standing or continuously flowing bodies of water." 

In addition, he stated there must be a "continuous surface connection" between wetlands 

and waters of the United States to trigger EPA/USACE jurisdiction over the wetlands. 

The TCEQ believes the connection between water bodies must be natural and not the 

result of pumping the water from one water body to another. In Rapanos, Justice Scalia 

noted that if a non-navigable tributary does not have a "relatively permanent, standing, or 

continuous" flow and a "continuous surface connection" to a navigable water body, there 

is no federal jurisdiction over the tributary. The Scalia test, rather than the Kennedy test, 

would best preserve the Congress's express policy to "recognize, preserve, and protect the 

primary responsibilities and rights of States ... to plan the development and use ... of land 

and water resources" in Section 101(b) of the CWA, especially if the test is applied to all 

non-navigable waters, by providing states with the ability to regulate water quality within 

its boundaries. Therefore, the TCEQ believes the Scalia test should be used by EPA and 

the USACE to clarify the definition of waters of the United States and that the connection 

between water bodies must be natural and not the result of pumping the water from one 

water body to another. As discussed earlier, the most objective and certain path forward 

is to follow the test set by Justice Scalia's plurality opinion rather than the "significant 

nexus" test set by Justice Kennedy's concurring opinion. Therefore, TCEQ requests that 

the EPA/USACE follow the Scalia test in defining waters of the United States, require 

that the connection between water bodies be natural and not the result of pumping the 

water from one water body to another, and apply it not only to wetlands but also to other 

non-navigable waterbodies. (p. 3-5)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C. Neither the agencies nor the courts have interpreted “waters of the 

U.S.” to include only “natural” waters or “natural” connections. 
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230

Consolidated Drainage District #1, Mississippi County, MO (Doc. #6254)

10.288 The idea that the body of water is actually navigable is key here for constitutional 

reasons. Neither the EPA nor the USACE have jurisdiction over non-navigable bodies of 

water under the Constitution. That federal jurisprudence has extended their jurisdiction to 

include wetlands adjacent to and part of the watershed of navigable bodies of water is one 

that we recognize (though we do not completely agree with it). Yet the fact that the 

navigable bodies of water must actually be navigable is highly important to maintain in 

the law. Clearly Justice Anthony Kennedy thought so in the Rapanos case. He explained 

that USACE had a burden to show that there was an ecological and hydrological 

connection between the land and an actually navigable body of water. Such an approach 

respects the need of various local governments and the states to regulate land within its 

boundaries, while also protecting a private property owner who may be quite vulnerable 

financially if he or she has to fight federal overreach or an aggressive federal agency. 

By placing this burden on USACE, Justice Kennedy appears to have desired to make it 

incumbent upon the regulating agency to prove the necessity of regulation, rather than 

burdening individual property owners with the need to demonstrate the lack of that 

necessity. This means regulation is absolutely possible provided the agency can 

demonstrate its necessity. Again, the burden, under this standard, is on the regulatory 

agency. This, in our view, comports with the theory of the takings clause litigation that 

Rapanos as well as SWANCC are both a part. They support the view that governmental 

regulation of land, while at times necessary for the public good, must not overburden 

individual property owners without due process and just compensation. If the agency can 

show that the connection exists, then they can regulate the land; but if the agency cannot 

show that clearly and persuade a judge, then the agency must change its direction. (p. 3)

Agency Response: The rule is consistent with the caselaw and the Constitution. 

Technical Support Document, I.C.

Jefferson Mining District (Doc. #15706)

10.289 As a matter of law, there is a limit to an agency’s authority. Extent of delegation therefore 

is an important consideration and though the Council of Environmental Quality, 

i.e.,Environmental Protection Agency; EPA, and the Army. Corps of Engineers, ACOE

Agency, evades the land, rather sailing to claim the point at which waters and 

subsequently their authority ends, the proposal, upon the apparent suggestion of the 

Supreme Court, "to choose some point", intends the point be so large as to encompass 

every drop of water conceivably "connected” no matter what other law or constraint may

demand upon the subject matter.

Under the law, as are all -disposed property, water bodies are distinguished according to 

their use. The important distinction in the case of "navigable water v which are, "waters 

of the United States", is these are used for business or transportation; i.e., commerce, 

purposes, whether in aid of or for navigation, are public, and are forever free.. The U.S

Supreme Court has held that the Commerce Clause (Article 1, Section 8) gives the 

federal government authority to regulate interstate commerce. (p. 2)

Agency Response: The rule is consistent with the statute and the caselaw and the 

Constitution. Technical Support Document, I.A. and C.
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231

10.290 That "the purposes of the proposed rule are to ensure protection of our nation’s aquatic 

resources" by some undisclosed mandate, and for the sake of crediting to Agency, at 

least, an implied notice, such as, maybe, the North American Free Trade Agreement, 

NAFTA, is not sufficient authority to expand any Constitutionally disposed jurisdiction 

beyond that of declared navigable, or of commerce, designation of a particular water 

body. In this regard, the distinctions called "Upstream" or "Downstream" or artificial 

deceptions. The definition being jurisdictional is limited by Constitution and subject to 

other constraints, any "significant nexus" will be limited to the commerce nature affected 

and not otherwise pre-disposed or conditioned by other obligations, such as soil and 

water disposal.

Jurisdictionally speaking then, there are simply navigable waters and non-navigable 

waters identified for the purpose of determining federal jurisdiction, subject matter areas 

determined by the State if in question; not federal Agency. 

The new rule proposal, as well, essentially, 'unnaturally mistreats "upstream" waters of a 

natural topography as a point source for a purpose, or as scheme and artifice, which is 

contrary to law and contrary to the fact It is at least arbitrary and 'capricious, rather 

irrational to differentiate upstream from downstream where non-navigable natural water 

body meets the navigable without regard of the requirement for the existence of a 

different facility or "point source" making "addition". The important element is 

identifying whether one surface area and substance is disposed to different jurisdictional 

classification or use,' such as patent land or those treated as patent, including water. The 

primary focus upon any relation of the water by mere connection is misplaced. The 

lawful delineations determined by disposal are for purposes of establishing underlying 

jurisdiction and authority. Data, science, the CWA, and administrative case law, or any 

connectivity report cannot expand any lawful jurisdiction of an agency, change the Law, 

the extent of an authority over a subject matter or alter obligations fulfilled by Act of 

Congress- pursuant to other Obligation, such as any State Enabling Act, Constitution, or 

as these are fulfilled in part by the General Mining Law or water and other land disposal 

laws.

Critically, the proposed rule attempts to expand/clarify regulatory authority, to 

differentiate “upstream" from "downstream" for purposes of unlawful unification, but in 

doing so acknowledges in the distinction the jurisdictional boundary of which neither the 

EPA nor the ACOE can alter by term rule change, or encroach upon. The so-called, 

“upstream” the natural and lawful sense is simply nonnavigable, disposed, such as patent 

land or those treated as patent, including water, and irretrievably outside of federal 

agency jurisdiction as a matter of settled law. The proposed definition, also, appears to 

eliminate recognition of lawfully disposed non-polluting nonpoint sources, to trespass 

upon them. 

Furthermore, to encroach "Upstream", as a pre-determined rule, will be to come in 

conflict with the exhausted Power of Congress and its obligations; The Constitutional, 

Property, Commercial, and Fiduciary limitation, to unlawfully infringe upon 

congressional fulfillment of land and water disposal to local public or private possession, 

insulting various grant Acts of Congress to producers, Production, Relation, obligation, 

and conveyed lawful production the land is disposed to and under exclusive state 

jurisdiction, such as patent land or those treated as patent, including water, or that of 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

232

Jefferson Mining District, interfering in a wholesale way with the very economic vitality 

of the entirety of each affected state: Belying Agency certificate, declaring no economic 

effect is a fraud. 

The very distinction between the area claimed under the jurisdiction of Agency as 

"downstream", the navigable water, and that which is not under the jurisdiction, 

"upstream", of which is the subject matter of Enabling or Admissions Acts obligations or 

other Act of Congress, admits to the limit of the authority over which Congress, let alone 

the agency, cannot encroach and shows that the proposal has no basis in law, is a waste of 

time, resources, a misappropriation of the government fisc.

Whether by Act of Congress or further described by international agreement, Agency did 

not show where any can encroach upon the disposal obligations of Congress, whether or 

not fulfilled in the Mining Law Act of 1872, amending the Act of July 26, 1866, or-other

Acts of Congress, by whatever excuse, scheme or artifice, nor show authority to ignore 

the constraints placed upon the EPA, if constitutionally legitimate, or the ACOE, or 

through the National Environmental Protection Act, nor, ignore any Burdens thereunder 

with respect to such things as the balance-favoring productive needs of man's 

environment prevailing the lesser identified environment; Firmly recognizing the 

constitutional and other Obligations of Congress, and its intent, such as, and not limited 

to soil and water disposal, "upstream" and off-limits to the agency.

If Agency now claims jurisdiction over all of the waters "connected upstream”, then 

what was it Congress granted or conveyed for appropriations in Acts of Congress 

predating any agency? Acts of Congress expressing no reservation or acknowledgment 

to regulatory or administrative oversight of privately or publicly conveyed exclusively 

held property. (p. 2-4)

Agency Response: The rule is consistent with the statute and the caselaw and the 

Constitution. Technical Support Document, I.A. and C.

Waters Advocacy Coalition (Doc. #17921.1)

10.291 The Proposed Rule provides for expanded assertions of jurisdiction that are beyond the 

limits of the Commerce Clause. Although the Supreme Court has found on two separate 

occasions that the agencies’ broad assertions of CWA jurisdiction stretched the outer 

limits of the Commerce Clause, the proposed rule again asserts expansive jurisdiction 

that is well beyond the commerce authority Congress exercised in enacting the CWA. 

Even EPA and the Corps acknowledge in the preamble to the proposed rule that 

“constitutional concerns...led the Supreme Court to decline to defer to agency 

regulations in SWANCC and Rapanos.” 79 Fed. Reg. at 22,259. 

The SWANCC Court held that although the term “navigable waters” is to be interpreted 

broadly, the term “navigable” has meaning and cannot be read out of the statute. 

SWANCC, 531 U.S. at 172. The word “navigable,” the Court found “has at least the 

import of showing us what Congress had in mind as its authority for enacting the CWA: 

its traditional jurisdiction over waters that were or had been navigable in fact or which 

could reasonably be so made.” Id. at 172 (citing United States v. Appalachian Elec. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

233

Power Co., 311 U.S. 377, 407-408 (1940)). In light of Congress’s intent to exercise its 

traditional “commerce power over navigation,” Id. at 168 n.3449 the Corps’ assertion of 

jurisdiction over sand and gravel pits based on their use by migratory birds raised 

“significant constitutional questions,” SWANCC, 531 U.S. at 174. As such, the Court held 

that extending CWA jurisdiction to isolated, non-navigable waters like those at issue in 

SWANCC “is a far cry, indeed, from the ‘navigable waters’ and ‘waters of the United 

States’ to which the statute by its terms extends.” Id. Similarly, the Supreme Court in 

Rapanos found that the agencies’ assertion of jurisdiction under the “any connection” 

theory over wetlands that were not adjacent to traditional navigable waters “stretch[ed] 

the outer limits of Congress’s commerce power.” Rapanos, 547 U.S. at 738 (plurality). 

Therefore, according to the Supreme Court, the Constitution allows for the CWA to reach 

more than “navigable-in-fact” waters, but asserting jurisdiction over an area based on a 

mere connection to a non-navigable water raises serious constitutional concerns.450

The proposed rule extends jurisdiction so far that it extends well beyond the commerce 

power over navigation that Congress exercised in enacting the CWA. With the proposed 

rule, the agencies are attempting to assert authority even broader than the authority they 

claimed under the sweeping jurisdictional theories that were struck down in SWANCC

and Rapanos. The proposed rule provides for jurisdiction over non-navigable features, 

such as isolated wetlands, ephemeral drainages, and isolated ponds, that lack any 

meaningful connection to navigable waters and that have previously been nonjurisdictional. Like the features at issue in SWANCC and Rapanos, these features are a far 

cry from the “navigable waters” over which Congress sought to exercise its commerce 

power. The proposed rule wholly ignores the limits recognized by the Supreme Court, 

and once again the agencies’ expansive jurisdictional interpretations run afoul of the 

limits of Congress’s commerce power over navigation. (p. 15-16)

Agency Response: The rule is consistent with the statute and the caselaw and the 

Constitution. Technical Support Document, I.A. and C.

10.292 Contrary to the ELI study relied on by the Agencies, states have many regulatory 

mechanisms to protect non-CWA waters. The agencies have claimed this rule is needed 

to broaden the definition of “waters of the United States” because the States cannot be 

relied upon to “fill the gap” in CWA coverage that would result from faithful 

 

449 The Supreme Court has divided Congress’s commerce power into three broad categories, the power to regulate 

(1) “channels of interstate commerce,” (2) the “instrumentalities of commerce,” (3) activities that “substantially 

affect interstate commerce.” United States v. Lopez, 514 U.S. 549, 558-59 (1995). The SWANCC decision squarely 

forecloses the argument that the CWA authorizes regulation of certain marginal waters or wetlands based on the 

“substantial effects” that activities in those areas may have on interstate commerce. 531 U.S. at 173. Rather, the 

power over navigable waters is an aspect of the authority to regulate the channels of interstate commerce. Gibbs v. 

Babbitt, 214 F.3d 483, 490-91 (4th Cir. 2001) (including “navigable rivers, lakes, and canals” among the channels of 

commerce).

450 Professor Jonathan Adler, a prominent constitutional scholar, has noted that, by defining “navigable waters” to 

“include all waters and wetlands irrespective of their navigability or relationship to interstate commerce,... the 

federal government may have asserted regulatory authority beyond that authorized by the Commerce Clause.” See, 

Constitutional Considerations: State vs. Federal Environmental Policy Implementation, Hearing before the House 

Subcomm. on Environment and the Economy (Testimony of Jonathan H. Adler) at 11 (July 11, 2014), available at 

http://docs.house.gov/meetings/IF/IF18/20140711/102452/HHRG-113-IF18-Wstate-AdlerJ-20140711.pdf. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

234

interpretation of SWANCC and Rapanos.451 In support of this assertion, they cite a study 

published in May 2013 by the Environmental Law Institute (“ELI”) that concludes that 

“State laws imposing limitations on the authority of state agencies to protect aquatic 

resources are commonplace . . . [, and] the prevalence of these state constraints across the 

country, together with the reality that only half of all states already protect waters more 

broadly than is required by federal law, suggest that states are not currently ‘filling the 

gap’ left by U.S. Supreme Court rulings . . ., and face significant obstacles to doing 

so.”452 The agencies’ reliance on this concern over “filling the gap” in CWA coverage 

essentially functions as an admission that the proposed rule increases jurisdiction and 

seeks to take on a role previously considered to be solely within the authority of the 

States. 

Tellingly, the agencies touted this gap in coverage as a primary reason the rule is needed 

during their roll out of the proposed rule,453 but it is not discussed in the rule itself nor in 

the preamble. That the agencies do not mention State constraints or the ELI Study in the 

proposed rule suggests that it is not an important justification – if it were, the 

Administrative Procedure Act (“APA”) would require the agencies to identify this as a 

basis for the rule. Indeed, the agencies’ claims that the proposed rule does not expand 

jurisdiction would suggest that there are few gaps in coverage that need to be filled by the 

federal agencies. 

Based on the ELI Study, EPA expresses concern that “36 states have legal limitations on 

their ability to fully protect waters that are not covered by the Clean Water Act.”454 But, 

as discussed in more detail in Exhibit 4, there are a number of problems with ELI’s study 

and EPA’s conclusion.455

First, as its title indicates, the ELI Study looks at regulation of water beyond the scope of 

the CWA, and therefore the study cannot be used to justify the agencies expanding their 

authority under the Act. A State’s legal authority to protect the waters within the State’s 

jurisdiction is virtually unfettered. More importantly, how and to what degree a State 

chooses to regulate waters within the State has no relation whatsoever to the question of 

 

451 EPA, Waters of the United States Proposed Rule Website, http://www2.epa.gov/uswaters (last visited Oct. 29, 

2014); EPA, Transcript for the Watershed Academy Webcast Series: Waters of the U.S. Proposed Rule at 7 (Apr. 7, 

2014) (“Watershed Academy Webcast Transcript”), http://water.epa.gov/learn/training/wacademy/upload/040714-

wous-transcript.pdf. 

452 Environmental Law Institute, State Constraints: State-Imposed Limitations on the Authority of Agencies to 

Regulate Waters Beyond the Scope of the Federal Clean Water Act, at 2 (May 2013), available at 

http://www.eli.org/research-report/state-constraints-state-imposed-limitations-authority-agencies-regulate-waters

(“ELI Study”).

453 See, e.g., Watershed Academy Webcast Transcript at 7; EPA, Press Release, “EPA and Army Corps of Engineers 

Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water 

Act Expanded by Proposal (Mar. 25, 2014), 

http://yosemite.epa.gov/opa/admpress.nsf/3881d73f4d4aaa0b85257359003f5348/ae90dedd9595a02485257ca60055

7e30 (“The proposed rule also helps states and tribes – according to a study by the Environmental Law Institute, 36 

states have legal limitations on their ability to fully protect waters that aren’t covered by the Clean Water Act.”).

454 EPA, Waters of the United States Proposed Rule Website, http://www2.epa.gov/uswaters (last visited Oct. 29, 

2014).

455 See State Practitioner Review of ELI Study, Exhibit 4.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

235

federal jurisdiction.456 State jurisdiction is solely at the discretion of the State legislature 

and can be broad or more limited; federal jurisdiction is derived from the U.S. 

Constitution and is limited. The breadth of federal jurisdiction is not a creature of State 

decision making, be it limited or broad. Indeed, “non-CWA” waters are simply that: 

waters that fall beyond the scope of authority granted Congress and EPA under the 

Constitution. What EPA may allege is a “failure” of State decision-making may well be a 

conscious decision by State authorities to use their authority in a manner best suited for 

the needs and benefits of their own citizens. The fact that EPA disagrees with a State’s 

decision on “non-CWA” waters bears no relationship whatsoever to the question of 

federal jurisdiction and cannot be used to boot-strap an imagined federal authority where 

the Constitution has provided none.

Second, the results of the Study do not support ELI’s conclusions. To the contrary, they 

indicate that whether a “constraint” exists under State law has little bearing on whether 

the State regulates waters that are not regulated by the CWA.457 Indeed, roughly half of 

the States in each category (constraint or no constraint) regulate non-CWA waters. Id.

458

Third, most of the laws characterized as “constraints” in the Study do not prohibit or limit 

regulation. The “qualified” stringency provisions claimed to limit water quality laws in 

23 States – which ELI admits “stop[] short of creating a bar to state agency action,” ELI 

Study at 1 – are nothing more than procedural requirements common to administrative 

practice, such as notice and- comment rulemaking requirements.459 As noted by West 

Virginia practitioner Robert McLusky, contrary to the ELI Study’s characterization, these 

provisions are not “burdens,” they are “legitimate legislative check[s]” on State 

agencies.460 And many of the other cited provisions are very narrow, focusing on State-

 

456 Often, States’ “waters of the State” definitions incorporate the federal definition of “waters of the United States” 

as a subset of the term “waters of the State.” See, e.g., Fla. Stat. s. 403.031(13) (Solely for purposes of implementing 

the NPDES program in Florida, “waters of the state also include navigable waters or waters of the contiguous zone 

as used in s. 502 of the Clean Water Act, as amended, 33 U.S.C. §§ 1251 et seq., as in existence on January 1, 1993, 

except for those navigable waters seaward of the boundaries of the state set forth in s. 1, Art. II of the State 

Constitution.”). Thus, what is interpreted as a “water of the United States” is automatically also considered a “water 

of the State,” in addition to other waters covered by the more expansive state term. See Frank Matthews and Susan 

Stephens, ELI Report: State Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate 

Waters Beyond the Scope of the Federal Clean Water Act: Florida, at 3-4 (May 12, 2014), Exhibit 4, Attachment D.

457 ELI’s data indicate a near-even split among States that regulate non-CWA waters and those that do not, 

regardless of whether a “constraint” exists under State law. Of the 36 jurisdictions ELI characterizes as having 

constraints, 17 (47%) regulate non-CWA waters and 19 (53%) do not. See ELI Study at 2, 34-35. And of the 15 

States without constraints, eight (53%) regulate non-CWA waters and seven (47%) do not. Id.

458 For instance, the ELI Study identifies Pennsylvania as a State where a constraint exists, citing a generally 

applicable executive order requiring justification before promulgating regulations that exceed federal standards. 

However, the ELI Study ignores that Pennsylvania’s Clean Streams Law, which was enacted long before the 

executive order, unambiguously requires regulation of all “waters of the Commonwealth,” broadly defined to 

include all surface and groundwater, both artificial and natural, without exception. See Craig P. Wilson, Tad J. 

Macfarlan, Response to ELI Report on State Constraints: The Scope of Regulated Waters in Pennsylvania, at 4 (June 

4, 2014), Exhibit 4, Attachment I.

459 These provisions include such things as notice-and-comment rulemaking, written justifications of the need for 

regulation, findings regarding the need to address particular issues, and reports to state legislature. See ELI Study at 

13-14. Also, in many instances, these so called “constraints” are irrelevant because expansion of the State program 

is not necessary to reach non-CWA waters. See, e.g., Exhibit 4, Attachment I at 4.

460 See Robert G. McLusky, Jackson Kelly, ELI Report on State Constraints: State Imposed Limitations on
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236

specific concerns. They are not across-the-board prohibitions against regulating more 

broadly than the CWA. For example, Oregon focuses on effluent limitations for nonpoint 

source pollutants from forest operations, Virginia addresses treatment levels for sewage 

treatment works, Colorado addresses agricultural irrigation flows, and Minnesota has a 

provision that would come into effect should Minnesota assume section 404 permitting 

authority. ELI Study at 12, n.27. 

Fourth, some of the restrictions cited by ELI do not actually restrict State regulation 

under State law, but merely limit what the State can do when it is exercising federal 

authority under the CWA.461 It is hardly surprising that when a State elects to take over 

the NPDES program, it would also decide that its program should not outrun the CWA 

unless certain conditions are met.

Fifth, ELI’s “property-based” limitations462 do nothing to limit the ability of State 

agencies to act – they simply “create additional processes for an agency to follow when a 

proposed regulation is likely to affect private property rights,”463 and require State 

agencies to compensate property owners in the event that regulation results in a physical 

or regulatory464 taking. ELI Study at 20-21. 

Sixth, ELI simply misrepresents data from some States: some States counted in ELI’s 

study as not regulating non-CWA waters actually do regulate non-CWA waters.465 

Finally, and most importantly, ELI misunderstands many of the State laws it references. 

State experts who have examined ELI’s “State Profiles” (contained in the ELI Study’s 

Appendix 2) have identified serious errors in ELI’s assessments of their States’ laws. See 

Exhibit 4.466 Indeed, the ELI Study shows a fundamental misunderstanding of State 

 

the Authority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water Act – West Virginia, at 

1 (June 3, 2014), Exhibit 4, Attachment K.

461 See, e.g., ELI Study at 169 (The North Dakota Department of Health “is prohibited from adopting a rule for 

purposes of administering a program under the federal Clean Water Act that is ‘more stringent than corresponding 

federal regulations which address the same circumstances,’ or for which there is no corresponding federal 

regulation—unless the [state] satisfies additional requirements.”) (describing N.D. Cent. Code § 23-01-04.1 (1)-(3), 

(5)) (emphasis added); id. at 213 (Utah has a similar law).

462 These limitations “are an outgrowth of ‘takings’ law,” which is “based on the Takings Clause of the Fifth 

Amendment of the U.S. Constitution.” ELI Study at 20.

463 As noted by Charles M. Carvell, “During my 26 years as an Assistant Attorney General for the State of North 

Dakota, . . . I don’t recall an instance in which a state agency refrained from rule-making due to processes and 

procedures imposed by the legislature. . . . I am unaware of any instance in which an agency backed away from 

rulemaking because it was required to conduct a takings assessment.” Charles M. Carvell, Proposed Federal Rule 

Defining “Waters of the United States” – Comments on the Environmental Law Institute’s Interpretation of North 

Dakota Law, at 2 (Sept. 2, 2104), Exhibit 4, Attachment G.

464 As ELI acknowledges, “most regulation does not meet the threshold constitutional standards that would require 

compensation under principles of takings law.” ELI Study at 20.

465 ELI lists 26 States as having “no” coverage of non-CWA waters, but acknowledges in a footnote that “[e]ven for 

states [categorized as not regulating non-CWA waters], the state may still provide protection in coastal areas that

could be construed as regulating waters more broadly than the federal [CWA].” ELI Study at 8-9, Table 1 & n.3. 

Thus, by ELI’s own admission, at least, nine of the States in ELI’s “no” columns may, in fact, cover non- CWA 

waters (Alabama, Alaska, Delaware, Georgia, Hawaii, Louisiana, Mississippi, South Carolina, and Texas).

466 For example, the ELI Study states that Arizona State law does not cover non-CWA waters, but this is simply 

incorrect. Arizona’s statute defines “waters of the State” much more broadly and includes groundwater. Moreover, 

the Arizona Department of Environmental Quality has the authority to set enforceable water quality
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

237

regulation. The Pennsylvania Department of Environmental Protection’s (“PDEP”) 

comments on the proposed rule explain, “[o]ne of DEP’s significant concerns with this 

rulemaking is EPA’s unfamiliarity with existing state law programs reflected by its 

reliance on the ELI study . . . .”467 PDEP notes that the ELI Study characterizes 

Pennsylvania as one State program where protection of water resources are lacking, and 

PDEP states that “[t]his characterization and assertion by EPA is completely erroneous 

and reflects a lack of due diligence and coordination with the states.”468

For all these reasons, the ELI Study cannot be relied upon to draw legitimate conclusions 

about whether States are constrained from regulating non-CWA waters. In fact, States 

have primary authority to regulate water resources. If States have chosen not to regulate 

non-CWA waters, it is not necessarily because they are prevented by law. Rather, in 

many cases, the States have determined that certain non-CWA waters and features do not 

require regulation. In sum, the agencies cannot rely on false claims that States are limited 

in their ability to protect non- CWA waters to justify a rulemaking that captures such an 

expansive scope of “waters of the United States.” (p. 17-21)

Agency Response: The rule reflects the judgment of the agencies in balancing the 

science, the agencies’ expertise, and the regulatory goals of providing clarity to the 

public while protecting the environment and public health, consistent with the 

statute and the Supreme Court opinions. See Preamble, III and IV. Under section 

510 of the CWA, unless expressly stated, nothing in the CWA precludes or denies 

the right of any state or tribe to establish more protective standards or limits than 

the CWA. State law does not, however, constrain the scope of the statute, and thus 

the strengths or weaknesses of the referenced study with respect to State authority is 

not relevant to the rule.

10.293 The Proposed Rule has no bounds and is tantamount to the broad theories of jurisdiction 

rejected by the Supreme Court in SWANCC and Rapanos. The agencies claim that the 

proposed rule does not broaden the historical coverage of the CWA.469 But, as discussed 

above, the “historical coverage” has twice been determined by the Supreme Court to be 

overbroad. In SWANCC, the Supreme Court rejected the agencies’ attempts to assert 

jurisdiction over an abandoned sand and gravel pit based on the theory that the isolated 

pond was used by migratory birds. (This theory was known as the Migratory Bird Rule.) 

 

standards for protecting the broader category of “waters of the State.” Robert D. Anderson, General Comments on 

the Environmental Law Institute’s State Constraints: State-Imposed Limitations on the Authority of Agencies to 

Regulate Waters Beyond the Scope of the Federal Clean Water Act, at 1-2 (Sept. 29, 2014), Exhibit 4, Attachment 

A. Likewise, the ELI Study presents Florida’s coverage of non-CWA waters as much more limited than it is. It does 

not acknowledge that Florida regulates far more waters, and far more activities in those waters, than does the CWA. 

Moreover, ELI scarcely mentions Florida’s Environmental Resources Permitting (ERP) program. By contrast, a 

report issued by ELI in 2006 praised the ERP program for its “comprehensive wetland protection strategy.” The 

State’s wetland program has expanded since the 2006 report was issued. See Exhibit 4, Attachment D at 7-8.

467 PDEP, Comments on Proposed Rulemaking: Definition of “Waters of the United States” Under the Clean Water 

Act, Docket No. EPA-HQ-OW-2011-0880-7985, at 2 (Oct. 8, 2014). 

468 Id.

469 See, e.g., EPA, Questions and Answers About Waters of the U.S. (July 2014), 

http://www2.epa.gov/sites/production/files/2014-07/documents/questions_and_answers_about_wotus_0.pdf. (“EPA 

WOTUS Questions and Answers”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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SWANCC, 531 U.S. at 174. And in Rapanos, five Justices rejected the agencies’ attempts 

to assert jurisdiction over wetlands not adjacent to navigable waters based on the theory 

that CWA jurisdiction extends to any non-navigable water that has a “mere hydrologic 

connection” to navigable waters. Rapanos, 547 U.S. at 739-40. The proposed rule allows 

for sweeping jurisdiction based on connections as tenuous as the Migratory Bird Rule 

that was rejected in SWANCC, and essentially amounts to the “any connection” theory 

that was rejected in Rapanos. Thus, the agencies’ assertions that they are not “changing” 

anything or “expanding” jurisdiction are impossible to support. In the Appendix to these 

comments, we provide a more detailed legal analysis of the proposed rule’s specific 

categories of regulation and explain how they are inconsistent with SWANCC and 

Rapanos. 

Essentially, under this proposed rule, the agencies’ authority to assert jurisdiction is 

limitless. It will most certainly reach features like the remote waterbodies that troubled 

Justice Kennedy in Rapanos that are “little more related to navigable-in-fact waters than 

were the isolated ponds held to fall beyond the Act’s scope in SWANCC.” Rapanos, 547 

U.S. at 781-82 (Kennedy, J., concurring). The proposed rule would apply the “waters of 

the United States” definition to a whole host of features that are remote from TNWs and 

carry minor water volumes, including ephemeral drainages, storm sewers and culverts, 

directional sheet flow during storm events, drain tiles, manmade drainage ditches, and 

arroyos, all of which the Rapanos Court made clear are beyond the scope of federal 

jurisdiction. Id. at 734 (plurality); id. at 781 (Kennedy, J., concurring). Once again, the 

term “waters of the United States” “cannot bear the expansive meaning” the agencies 

would give it. Id. at 731 (plurality).

It is well settled that Congress – and only Congress – has the power to override U.S. 

Supreme Court statutory interpretation decisions.470 Indeed, Congress has frequently 

overridden, or attempted to override, Supreme Court statutory interpretation decisions 

because it disagreed with the Court’s reading of the relevant statute.471 The Rapanos

plurality made clear that this was a possible option, stating that it “would expect a clearer 

statement from Congress to authorize an agency theory of jurisdiction that presses the 

envelope of constitutional validity.” Rapanos, 547 U.S. at 738 (citations omitted). Indeed, 

in the wake of Rapanos, the agencies and others were pushing Congress to delete the 

term “navigable” from the CWA because they recognized it was limiting. In 2008, 

Representative Jim Oberstar introduced a bill, H.R. 2421, that would have done just that, 

but Congress rejected it. In 2010, when asked if, in the absence of new legislation, EPA 

and the Corps could regulate all waters, as opposed to just those deemed “navigable,” 

Oberstar noted that if regulators could, “they would have done so.” He further noted, 

“EPA and the Army Corps and the Department of Agriculture and CEQ [the White 

House Council on Environmental Quality] all are constrained by the Supreme Court 

 

470 See W. Eskridge, Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L. J. 331 (1991), 

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4816&context=fss_papers ; Lane v. Pena, 518 U.S. 

187, 198-199 (1996) (recognizing Congressional response to statutory interpretation decision); Rivers v. Roadway 

Exp., Inc., 511 U.S. 298, 304-305, n.5 (recognizing Congress’s power to “alter the rule of law established in one of 

[the U.S. Supreme Court’s] cases.”)

471 A recent example includes Congress’s overriding the Court’s decision in Ledbetter v. Goodyear Tire and Rubber 

Co., 550 U.S. 618 (2007), by enacting the Lilly Ledbetter Fair Pay Act of 2009.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

239

decision...”

472 However, in the eight years since Rapanos was decided, Congress has 

declined to expand the definition of “water of the United States.”473

Additionally, the Supreme Court has made clear that “[w]hen an agency claims to 

discover in a long-extant statute an unheralded power to regulate ‘a significant portion of 

the American economy,’ [the Court] typically greet[s] the announcement with a measure 

of skepticism.” Utility Air Regulatory Group v. E.P.A., 134 S. Ct. 2427, 2444 (2014) 

(citations and quotations omitted). Again, the Court points to Congress, stating that it 

“expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast 

economic and political significance.” Id. (citations and quotations omitted). 

Accordingly, for the foregoing reasons and those stated elsewhere in these comments, the 

proposed rule impermissibly attempts to expand jurisdiction beyond the agencies’ 

statutory authority under the CWA. (p. 22-24)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution and is narrower in scope than the existing regulation. Technical 

Support Document, I.A, B. and C.

10.294 The agencies claim that the proposed rule does not change the scope of what is 

jurisdictional today.474 But in fact the proposed rule is a substantial expansion from 

current practice and from appropriate application of the SWANCC and Rapanos

decisions. Furthermore, the agencies’ claim is somewhat meaningless because CWA 

jurisdiction has been a moving and inconsistent concept for years. For decades, 

proceeding largely case-by-case and often through guidance, the agencies have “stretched 

the term ‘waters of the United States’ beyond parody.” Rapanos, 547 U.S. at 734 

(plurality). Guidance documents have been unclear and inconsistently applied, leading to 

varied interpretations by regulatory offices within a single State and even between 

regulatory staff in the same office.475 At the same time, as the agencies have eschewed 

notice and comment rulemaking, regulated parties generally have been unable to 

challenge the agencies’ overreaching. And when regulated parties have attempted to 

challenge agency guidance or case-by-case jurisdictional claims in court, the agencies 

have wrongfully persuaded he lower courts that such jurisdictional claims are 

unreviewable. “Guidance” is argued by the agencies to be non-binding and immune from 

review476 (although courts have disagreed with that position477), and case-by-case claims 

 

472 Paul Quinlan, Oberstar bearish on strengthening Clean Water Act, E&E Reporter (Nov. 16, 2010), available at 

http://www.eenews.net/eenewspm/stories/1059942202. 

473 In fact, on September 9, 2014, the House of Representatives passed H.R. 5078, legislation that would prevent 

EPA from implementing the proposed rule on the grounds that it is a regulatory overreach of EPA. While the bill’s 

chances of passage in the Senate are uncertain, and the White House has threatened to veto the bill, it makes clear 

that Congress itself is acting to prevent the proposed rule’s enactment on jurisdictional grounds.

474 See EPA WOTUS Questions and Answers.

475 See, e.g., U. S. General Accounting Office, Corps of Engineers Needs to Evaluate Its District Office Practices in 

Determining Jurisdiction, GAO No. 04-297 at 26 (Feb. 2004) (“GAO No. 04-297”). 

476 See, e.g., Nat’l Mining Ass’n v. Jackson, 758 F.3d 243 (D.C. Cir. 2014).

477 See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020-21 (D.C. Cir. 2000) (holding that a guidance 

document reflecting a settled agency position was final because it had legal consequences for those subject to 

regulation and the regulators). See also, e.g., New Hope Power Co. v. U.S. Army Corps of Eng’rs, 746 F. Supp. 2d 

1272, 1283-84 (S.D. Fla. 2010).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

240

are characterized by the agencies as “preliminary” and likewise immune.478 In this way, 

the agencies have attempted to insulate themselves from judicial oversight as they slowly 

recaptured many of the remote features that were held to be beyond the reach of the 

CWA by the SWANCC and Rapanos decisions. 

But “an agency may not insulate itself from correction merely because it has not been 

corrected soon enough, for a longstanding error is still an error.” Summit Petroleum v. 

EPA, 690 F.3d 733,746 (6th Cir. 2012). In Summit Petroleum, the U.S. Court of Appeals 

for the Sixth Circuit vacated EPA’s unreasonable interpretation of “adjacency” for 

purposes of determining whether multiple facilities could be aggregated as a single 

source for Clean Air Act permitting. Id. Although EPA pointed to previous guidance 

documents supporting its interpretation, the court declined to defer to EPA’s 

interpretations. Id. Similarly, here, the fact that the agencies are currently asserting broad 

jurisdiction well beyond the limits recognized by the Supreme Court does not provide 

legal justification for the inclusion of such a sweeping interpretation of “waters of the 

United States” in the proposed rule. (p. 24-25)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution and is narrower in scope than the existing regulation. Technical 

Support Document, I.A, B. and C. The statement that the proposed rule (and the 

final rule) is narrower than the existing rule was to provide the public with context 

to comment on the proposal, rather than provide a “legal justification” for the rule.

10.295 The Proposed Rule incorrectly applies only Justice Kennedy’s Rapanos opinion and 

ignores SWANCC and the Rapanos plurality decisions. The proposed rule (and preamble) 

ignores SWANCC and misinterprets Rapanos in several key respects, consequently sows 

confusion instead of providing clarity, and sets forth a “waters of the United States” 

definition that does not comport with a true reading of the case law. Fundamentally, the 

agencies’ proposed rule fails to adhere to the appropriate legal standard because the rule 

incorrectly applies only Justice Kennedy’s Rapanos opinion and completely ignores the 

plurality decision. To comply with Supreme Court and common law precedent, the 

proposed rule should only find jurisdiction where both the plurality’s and Justice 

Kennedy’s standards are satisfied.

Under Marks v. United States, “[w]hen a fragmented Court decides a case and no single 

rationale explaining the result enjoys the assent of five Justices, the holding of the Court 

may be viewed as that position taken by those Members who concurred in the judgment 

on the narrowest grounds.” 430 U.S. 188, 193 (1977) (internal quotations omitted) 

(emphasis added). The Marks Court’s reference to “the holding” and “that position” 

taken by the concurring Justices clearly reinforces the principle that a plurality decision, 

like all other Supreme Court decisions, must be read to produce a single holding on the 

point of law at issue in the case. 

Supreme Court precedent and basic common law principles require that the agencies 

identify a single holding from Rapanos. Id. That holding is the readily identifiable 

 

478 See, e.g., Belle Co. v. U.S. Army Corps of Eng’rs, 761 F.3d 383 (5th Cir. 2014) (denying review of an approved 

jurisdictional determination); Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 593 (9th Cir. 

2008) (same). We think these cases are wrongly decided and reserve our rights to challenge all these points.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

241

common logic of the plurality and Justice Kennedy that was “necessary” and “pivotal” to 

the decision in the case.479 The judgment of the Rapanos Court, by a 5 to 4 vote, 

announced by Justice Scalia and with which Justice Kennedy concurred, was to “vacate 

the judgments” against Rapanos and Carabell, and remand for further proceedings. The 

plurality opinion and Justice Kennedy’s opinion rejected the Corps’ assertion that the 

CWA regulates any non-navigable water that has “any hydrological connection” to 

navigable waters. Although Rapanos was decided by a plurality of four Justices and a 

separate concurring Justice, those Justices agreed on a common framework and provided 

several limiting principles that restrain the agencies’ jurisdiction under the CWA. This is 

the holding that is the narrowest, and under Marks is the holding the agencies must 

follow.480

To faithfully implement the single holding of Rapanos, which is the restriction of CWA 

jurisdiction based on limiting principles articulated by both the plurality and Justice 

Kennedy, only those waters that would meet both the plurality and Justice Kennedy tests 

can be deemed jurisdictional. The single holding from Rapanos is the plurality’s and the 

concurrence’s common reasoning on the boundaries of CWA jurisdiction. Although the 

plurality and Justice Kennedy did not agree on the specific tests for CWA jurisdiction, 

both found that the Corps had gone too far in its “any connection” theory, and both 

articulated principles that were intended to limit CWA jurisdiction. 

Both the plurality and Justice Kennedy’s opinion start from a common understanding of 

TNWs – i.e., the waters that were subject to regulation under the Rivers and Harbors Act 

(“RHA”) prior to the passage of the CWA. See Rapanos, 547 U.S. at 731 (plurality), 767 

(Kennedy, J., concurring). Both further agreed that “Congress intended to regulate at least 

some waters that are not navigable in the traditional sense,” id. at 767 (Kennedy, J., 

concurring), 731 (plurality), but that “the qualifier ‘navigable’ is not devoid of 

significance,” id. at 731 (plurality), and must be given “some meaning,” id. at 779 

(Kennedy, J., concurring). 

With respect to tributaries, both opinions would allow jurisdiction over certain non 

navigable tributaries, but both the plurality and Justice Kennedy were concerned about 

far reaching jurisdiction over features distant from navigable waters and carrying only 

minor volumes of flow. Justice Kennedy criticized the agencies’ “existing standard” 

which “deems a water a tributary if it feeds into a traditional navigable water (or a 

tributary thereof) and possesses an ordinary high water mark” because it “leave[s] wide 

room for regulation of drains, ditches, and streams remote from any navigable-in-fact 

water and carrying only minor water volumes toward it.” Id. at 781 (Kennedy, J., 

concurring). Similarly, the plurality criticized the agencies for extending jurisdiction to 

“‘ephemeral streams’, ‘wet meadows’, storm sewers and culverts, ‘directional sheet flow 

during storm events’, drain tiles, man-made drainage ditches, and dry arroyos in the 

middle of the desert.” Id. at 734 (plurality). Both opinions agreed that the Corps had gone 

 

479 See Black’s Law Dictionary 849 (10th ed. 2004) (defining “holding” as “a court’s determination of a matter of 

law pivotal to its decision”); see also United States v. Garcia, 413 F.3d 201, 232 n. 2 (2d Cir. 2005) (Calabresi, J., 

concurring) (defining a holding as “what is necessary to a decision”).

480 Our comments on the 2008 Rapanos Guidance provide an extensive Marks analysis and discuss the single 

holding of Rapanos at length. See AFBF Comments on 2008 Rapanos Guidance, Exhibit 2 at 10-22.
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242

too far in its assertion of jurisdiction over tributaries and that “mere adjacency to a 

tributary” is insufficient. Id. at 786 (Kennedy, J., concurring). 

With respect to wetlands, both opinions would require the agencies to demonstrate a 

meaningful relationship between non-abutting wetlands and TNWs for those nonabutting wetlands to be jurisdictional. Both the plurality and Justice Kennedy agreed that 

a mere hydrological connection between a wetland and a TNW is not sufficient to 

establish jurisdiction. See id. at 732 (plurality), 784 (Kennedy, J., concurring). Beyond 

this starting point, the plurality found that only wetlands with “a continuous surface 

connection” to waters of the United States, “making it difficult to determine where the 

‘water’ ends and the ‘wetland’ begins,” are covered by the Act. Id. at 742 (emphasis in 

original). By contrast, Justice Kennedy would require that there be a “significant nexus” 

such that wetlands “significantly affect the chemical, physical and biological integrity of 

other covered waters more readily understood as ‘navigable.’” Id. at 779, 780. Wetlands 

with “speculative or insubstantial” effects on water quality do not satisfy this standard. 

Id. at 780. Again, the combined impact of these limiting principles is that the agencies 

must demonstrate that wetlands have a meaningful relationship with TNWs to be 

jurisdictional. 

In sum, five Justices agreed that a mere hydrologic connection is not enough to establish 

jurisdiction under the CWA, that the CWA does not extend to features distant from 

navigable waters and carrying only minor volumes of flow, and that there must be a 

meaningful relationship between non-abutting wetlands and TNWs for those nonabutting wetlands to be jurisdictional. Under Marks and basic common law principles, 

this framework represents the single holding of Rapanos that the agencies are legally 

bound to follow. 

Thus, in light of Marks, only those waters that would be jurisdictional under elements 

common to both the plurality and Kennedy opinions are jurisdictional under Rapanos. To 

implement the holding of the Rapanos Court, only those waters that would meet both the 

plurality and Kennedy tests can be deemed jurisdictional. Waters that meet only one or 

the other test are not jurisdictional “waters of the United States.” The proposed rule does 

not faithfully implement Rapanos because it is not based on determining which waters 

would meet both tests

The agencies cannot rely solely on Justice Kennedy’s significant nexus standard as the 

governing holding of Rapanos. Throughout the proposed rule, the agencies rely only on 

their misinterpretation of Justice Kennedy’s “significant nexus” standard. They ignore all 

limits on CWA jurisdiction that Justice Kennedy and the plurality agreed upon, and pay 

no attention whatsoever to the plurality’s “relatively permanent waters” or “continuous 

surface connection” standards. This proposed rule signals a shift from the agencies’ 

previous interpretations of Rapanos. In both the Rapanos Guidance481 and the Draft 2011 

Guidance, the agencies found jurisdiction if either the plurality’s or Justice Kennedy’s 

standards was satisfied. As we noted in comments on those guidance documents and have 

 

481 EPA and U.S. Army Corps of Eng’rs, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s 

Decision in Rapanos v. United States & Carabell v. United States, (Dec. 2, 2008) (“Rapanos Guidance”). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

243

reiterated here, the “either/or” approach is not true to Marks.

482

 Now, the agencies have 

shifted from an “either/or” approach to a “Kennedy only” approach (using an approach 

that itself is flawed) without any explanation of why they now view the significant nexus 

test as controlling.483

But the agencies cannot pick and choose which Supreme Court opinion they like best. 

Marks precludes reading Rapanos in a manner that produces multiple and potentially 

inconsistent holdings and instead seeks a single holding reconciling the views of the 

Members of the Court who concurred in the judgment. See Marks, 430 U.S. at 193. The 

four-Justice Rapanos plurality rejected the “significant nexus” test. Rapanos, 547 U.S. at 

755. There is no good reason to select one concurring opinion as the single “winner” 

when four of the five Justices who issued the Court’s decision rejected that opinion’s 

approach. Under Marks and common law practices, the agencies cannot wholly ignore 

the plurality and treat Justice Kennedy’s opinion as the sole controlling holding of 

Rapanos. 

Nor can the agencies rely on dissenting Justices to support the proposed rule’s adoption 

of only Justice Kennedy’s significant nexus standard. Without acknowledging that the 

rule is based only on Justice Kennedy’s standard, the preamble notes that the four 

dissenting Justices in Rapanos would have upheld CWA jurisdiction for “all tributaries 

and wetlands that satisfy either the plurality’s standard or that of Justice Kennedy.” 79 

Fed. Reg. at 22,192. The opinions of the dissenting Justices, however, are irrelevant. 

Only those opinions that “concur in the judgments” count toward determining the 

“holding of the Court.”484 The dissenting Justices did not concur in the judgment, and 

therefore the agencies cannot head-count across all of the opinions to come up with a 

majority. 

Rather, as directed by Marks, the agencies must find a single holding based on the 

common elements of the plurality’s and Justice Kennedy’s opinions. Although finding 

the common ground between the plurality and concurring opinions is more complicated 

 

482 Interpreting Rapanos as supporting jurisdiction if either the plurality or Justice Kennedy’s test is satisfied results 

in the Supreme Court’s decision being interpreted as having two inconsistent holdings. Marks cannot be interpreted 

as allowing cases such as Rapanos to have multiple holdings, as evidenced by its use of the phrases “the holding” 

and “that position.” See AFBF Comments on Rapanos Guidance at 16-18.

483 The preamble does not explain why the agencies are relying solely on Justice Kennedy’s standard. They do not 

claim that the significant nexus standard is the “narrowest” ground from Rapanos or that they are following the 

reasoning of any particular circuit court decisions. Rather, without explanation, the agencies create a new 

jurisdictional standard without relying on or abiding by the Rapanos plurality opinion. This is hardly reasoned 

decisionmaking.

484 See United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007) (“Dissenters, by definition, have not joined 

the Court’s decision. . . . Marks does not direct lower courts interpreting fractured Supreme Court decisions to 

consider the positions of those who dissented. . . . It would be inconsistent with Marks to allow the dissenting 

Rapanos Justices to carry the day. . . .”); King v. Palmer, 950 F.2d 771, 783 (D.C. Cir. 1991) (“[W]e do not think we 

are free to combine a dissent with a concurrence to form a Marks majority.”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

244

than simply adopting wholesale one opinion or the other, this is what Marks requires.485 

Chief Justice Roberts recognized that it would be complicated to apply the holding of 

Rapanos, noting that “[l]ower courts and regulated entities will now have to feel their 

way on a case-by-case basis.” Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring). 

In sum, the agencies may not ignore the Rapanos plurality and rely solely on Justice 

Kennedy’s opinion. To be true to Marks, the agencies can only find jurisdiction where 

both the plurality’s and Justice Kennedy’s tests are satisfied. (p. 25-29)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.

10.296 The agencies cannot rely solely on Justice Kennedy’s significant nexus standard as the 

governing holding of Rapanos. Yet the proposed rule relies heavily on the agencies’ 

misinterpretation of Justice Kennedy’s significant nexus standard, citing to Justice 

Kennedy’s opinion 99 times, and holding it up as the controlling rule of law. The 

proposed rule categorically determines that all “tributaries” and “adjacent waters” have a 

significant nexus to (a)(1) through (a)(3) waters (TNWs, interstate waters, and territorial 

seas), and are therefore jurisdictional “waters of the United States.” 79 Fed. Reg. at 

22,204-05, 22,209-10. It also provides that, on a case-by-case basis, “other waters” will 

be jurisdictional if, when aggregated with all other waters in a watershed, the other waters 

have a significant nexus to an (a)(1) through (a)(3) water. Id. at 22,212. It is improper for 

the proposed rule to rely solely on Justice Kennedy’s opinion, but the proposed rule fails 

to apply even its hallmark test correctly. The proposed rule’s construction is problematic 

because it misconstrues and misapplies the significant nexus standard, resulting in much 

broader assertions of jurisdiction than Justice Kennedy’s Rapanos opinion allows.

The proposed rule states that although Justice Kennedy’s significant nexus standard 

involved wetlands, “it is reasonable to utilize the same standard” for non-wetland waters. 

 

485 Indeed, the complicated nature of this inquiry is likely why the Circuit Courts of Appeals are not uniform as to 

the controlling standard for “waters of the United States” under Rapanos. The crux of the circuit split is how one 

defines “narrower.” In Memoirs v. Massachusetts, 383 U.S. 413 (1966), the case interpreted by the Marks Court, the 

narrowest judgment is clear because it is a subset of the other two positions. In Memoirs, a plurality found that a 

particular book was not obscene. Id. at 421. Two concurring Justices also found the book was not obscene, but 

would have gone further regarding absolute First Amendment protections. Id. Thus, Marks held that the plurality 

opinion was based on the narrowest grounds and therefore constituted the holding of the Court and provided the 

governing standard. Marks, 430 U.S. at 194. Identifying the narrowest reasoning is not as straightforward with 

Rapanos because the two opinions do not create a nice, clear subset of jurisdictional waters – the concurring 

rationales do not fit within each other like Russian dolls. See United States v. Johnson, 467 F.3d 56, 64 (1st Cir. 

2006); Joseph M. Cacace, Plurality Decisions in the Supreme Court of the United States: A Reexamination of the 

Marks Doctrine After Rapanos v. United States, 41 Suffolk U. L. Rev. 97, 98 (2007). Instead the plurality’s and 

Justice Kennedy’s opinions overlap in some cases and would lead to opposite results in other cases. Some courts 

argue that Justice Kennedy’s is the narrower decision because it reins in federal authority less (e.g., United States v. 

Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006)), while others suggest that the plurality could be the narrower 

decision because it is most restrictive of government authority and avoids the expansion of the Commerce Clause 

(e.g., Johnson, 467 F.3d at 63). These circuit courts miss the mark, however. Marks does not require that we 

determine which opinion is narrowest. It requires determining the narrowest “position” taken by those members who 

concurred in the judgments. Marks, 430 U.S. at 193. Because the legal standards set by the two opinions create 

overlapping universes of jurisdictional waters, there is a clear narrow judgment that received the “assent of five 

Justices” in Rapanos. And that single holding is the framework discussed in section II.G.2.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

245

79 Fed. Reg. at 22,204; see also 22,209, 22,212. But the agencies do not explain why it is 

reasonable to extend the application of the significant nexus test to tributaries and nonwetland waters that may not be serving the same functions for those TNWs that wetlands 

are. Indeed, as we have noted in the past,486 the plain language of Justice Kennedy’s 

concurrence and later case law interpreting the significant nexus standard demonstrate 

that the standard cannot be applied to non-wetlands as the agencies have done here.

Justice Kennedy’s significant nexus standard has its origins in United States v. Riverside 

Bayview Homes, 474 U.S. 121 (1985). The Riverside Bayview Homes Court upheld the 

Corps’ jurisdiction over wetlands abutting on navigable-in-fact waterways. 474 U.S. at 

121. As later characterized by the SWANCC Court, “It was the significant nexus between 

the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside 

Bayview Homes.” SWANCC, 531 U.S. at 167. In his concurring opinion, Justice Kennedy 

adopted this language as the standard for determining whether wetlands adjacent to 

nonnavigable tributaries are jurisdictional. It is clear from his language that wetlands 

were the sole focus of his inquiry. Justice Kennedy explained, “[W]etlands possess the 

requisite nexus...if the wetlands, either alone or in combination with similarly situated 

lands in the region, significantly affect the chemical, physical, and biological integrity of 

other covered waters...” Rapanos, 547 U.S. at 780 (emphasis added). Justice Kennedy 

instructed the agencies to apply a case-by-case significant nexus analysis when they 

“seek[] to regulate wetlands based on adjacency to nonnavigable tributaries.” Id. at 782.

The U.S. Court of Appeals for the Ninth Circuit has squarely rejected the application of 

the significant nexus test to non-wetland waters, explaining that “Rapanos, like Riverside 

Bayview, concerned the scope of the Corps’ authority to regulate adjacent wetlands . . . . 

No Justice, even in dictum, addressed the question whether all waterbodies with a 

significant nexus to navigable waters are covered by the Act.” See San Francisco 

Baykeeper v. Cargill Salt Division, 481 F.3d 700, 707 (9th Cir. 2007) (rejecting 

Baykeeper’s argument that the Supreme Court has held that the CWA protects all 

waterbodies with a significant nexus to navigable waters). Thus, it is unreasonable for the 

agencies to extend Justice Kennedy’s significant nexus test to tributaries, adjacent nonwetlands, and other waters because it results in the assertion of jurisdiction beyond what 

both Justice Kennedy and the plurality intended and is unsupported by judicial precedent. 

The proposed rule’s aggregation approach is inconsistent with Justice Kennedy’s opinion 

and results in overly broad assertions of jurisdiction. Under the proposed rule, the 

agencies intend to aggregate “other waters” for purposes of assessing significant nexus. 

That is, to determine whether one water is jurisdictional, the agencies can aggregate all 

“similarly situated” waters within a watershed and look at whether all of those waters, 

taken together, have a significant nexus with (a)(1) through (a)(3) waters. 79 Fed. Reg. at 

22,212. The agencies will deem waters to be “similarly situated” if they “perform similar 

functions” and are located “sufficiently close together.” Id. at 22,213. Again, the agencies 

may not rely on Justice Kennedy’s significant nexus standard as the governing holding of 

Rapanos. But this broad aggregation standard goes well beyond what Justice Kennedy 

 

486 See WAC Comments on the 2011 Draft Guidance, Exhibit 1 at 42-44; AFBF Comments on 2008 Rapanos

Guidance, Exhibit 2 at 34. 
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authorized and will allow for assertions of jurisdiction over remote features with tenuous 

connections to (a)(1) through (a)(3) waters.487

In his concurrence, Justice Kennedy rejected the agencies’ assertion of jurisdiction over 

non-navigable waters based on “a mere hydrologic connection” to navigable waters. 

Rapanos, 547 U.S. at 784. He repeatedly cautioned that “remote,” “insubstantial,” 

“speculative,” or “minor” flows are insufficient to establish a significant nexus. Id. at 

778-79. In application of the significant nexus standard to the wetlands at issue in 

Rapanos and Carabell, Justice Kennedy did not aggregate wetlands in the same 

watershed, nor did he take the position that lower courts should determine jurisdiction 

over the wetlands at issue by aggregating impacts of all the wetlands surrounding the 

wetlands at issue. Rather, he focused on use of an individual significant nexus test and 

examination of the distance, quantity, and regularity of flow for each wetland at issue. Id. 

at 784-87. (p. 29-31)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.

10.297 The Proposed Rule, with its expansive, vague, and unclear provisions, fails under the 

“void for vagueness” doctrine. There are specific constitutional due process prohibitions 

on adoption of an expansive, vague, and unclear standard that will determine potential 

liability in civil and criminal enforcement actions, as the proposed rule here would under 

the CWA. Additionally, such an expansive and vague definition will open the floodgates 

to “bounty hunter” citizen suits under the CWA, burdening the regulated community and 

the courts with wasteful and unnecessary litigation. This will also produce inconsistent 

results in lower courts until the jurisdictional limits are, once again, addressed by the 

Supreme Court. 

As stated by the Supreme Court, “[a] fundamental principle in our legal system is that 

laws which regulate persons or entities must give fair notice of conduct that is forbidden 

or required.” F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). “This 

requirement of clarity in regulation is essential to the protections provided by the Due 

Process Clause of the Fifth Amendment . . . [, and i]t requires the invalidation of laws 

that are impermissibly vague.” Id.; see also United States v. Williams, 553 U.S. 285, 304 

(2008). This doctrine is often referred to as the “void for vagueness” doctrine. The void 

for vagueness doctrine addresses two important due process concerns: “first, that 

regulated parties should know what is required of them so they may act accordingly; 

second, precision and guidance are necessary so that those enforcing the law do not act in 

an arbitrary or discriminatory way.” Id.; see also Grayned v. City of Rockford, 408 U.S. 

104 (1972). 

Here, the proposed rule is a clear example of a statute that fails under the void for 

vagueness doctrine. The CWA provides for both civil and criminal enforcement for 

alleged violation of permits, unpermitted discharges, and other alleged violations of 

CWA requirements. See 33 U.S.C. § 1319. The definition and scope of “waters of the 

United States” is a critical element in the Act and a factor in determining the scope of

 

487 See WAC Comments on 2011 Draft Guidance, Exhibit 1 at 44.
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regulated activity and potential liability. As such, the jurisdictional limits must be defined 

in such a way as to “give fair notice of conduct that is forbidden or required.” F.C.C., 132 

S. Ct. at 2317. Yet the proposed rule allows for sweeping jurisdiction based on tenuous 

connections, catch-all categories, and direct and indirect impacts, all of which leave a 

potentially liable person or entity in the dark as to what actions may or may not be 

subject to CWA enforcement. Such vague and ambiguous language fails to meet 

constitutional standards for enforcement actions. (p. 94)

Agency Response: The Supreme Court has found that the phrase “waters of the 

United States” is ambiguous and therefore the agencies have authority to interpret 

it. The Supreme Court has never found that the phrase “waters of the United 

States” is void for vagueness. The final rule is also not vague, clearly identifying 

waters that are jurisdictional, waters that are not jurisdictional, and a limited set of 

waters for which case-specific significant nexus analyses will be performed. 

Preamble, IV.

10.298 The Proposed Rule’s definition of Traditional Navigable Waters is Inconsistent with the 

definition relied on by the Justices in Rapanos. The proposed rule’s (a)(1) provision 

covers “[a]ll 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.” 79 Fed. Reg. at 22,262. These (a)(1) waters are 

commonly referred to as TNWs. Although the proposed rule would not change the 

regulatory text for TNWs from the existing regulations, the agencies’ interpretation of the 

scope of waters that are considered TNWs broadly expands the concept of TNWs and is 

inconsistent with the definition relied on by the Rapanos plurality and Justice Kennedy’s 

concurrence. The agencies’ misinterpretation of TNWs was addressed in detail in our 

comments on the 2011 Draft Guidance.488

In Rapanos, both the plurality and Justice Kennedy based their jurisdictional tests on 

what they referred to, respectively, as “traditional interstate navigable waters” and 

“navigable waters in the traditional sense.”489 The waters to which the plurality and 

Justice Kennedy are referring are unmistakably clear from the cases they cite to describe 

them – The Daniel Ball v. United States, 77 U.S. 557 (1870), and United States v. 

Appalachian Elec. Power Co., 311 U.S. 377 (1940). These cases are cornerstones in a 

canon of well-established cases that define TNWs as waters that: (1) are navigable-in-fact 

(or capable of being rendered so) and (2) together with other waters, form waterborne 

highways used to transport commercial goods in interstate or foreign commerce. See The 

Daniel Ball, 77 U.S. at 563. 

The proposed rule acknowledges the origins of the well-understood TNW definition, but 

vastly expands the idea by providing that a water will be considered an (a)(1) water, inter 

alia, if “a Federal court has determined that the water body is ‘navigable-in-fact’ under 

 

488 See WAC Comments on 2011 Draft Guidance, Exhibit 1 at 25-34.

489 Rapanos, 547 U.S. at 742 (plurality) (establishing that a wetland is covered by the CWA requires a showing 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) . . .”); id. at 779 (Kennedy, J., concurring) (“the Corps’ jurisdiction over 

wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters 

in the traditional sense.”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

248

Federal law for any purpose.” 79 Fed. Reg. at 22,255.490 It also provides for a water to be 

considered a TNW if it is “currently being used for commercial navigation, including 

commercial waterborne recreation (for example, boat rentals, guided fishing trips, or 

water ski tournaments).” 79 Fed. Reg. at 22,200. As the Supreme Court has explained, 

however, “any reliance upon judicial precedent” on the subject of navigability “must be 

predicated upon careful appraisal of the purpose for which the concept of ‘navigability’ 

was invoked in a particular case.” Kaiser Aetna v. United States, 444 U.S. 164, 171 

(1979); see also PPL Montana LLC v. Montana, 132 S. Ct. 1215, 1228 (2012) (noting 

that “the test for navigability is not applied in the same way in the[] distinct types of 

cases”). 

That a water is deemed a “navigable water” by a federal court for purposes of title, 

admiralty, or the RHA does not mean that it meets the two-part standard of a traditional 

navigable water. Indeed, a water can be a “navigable water” for purposes of the RHA, for 

example, but not be a CWA jurisdictional water. See United States v. Milner, 583 F.3d 

1174, 1196 (9th Cir. 2009) (finding jurisdiction under the RHA, but not the CWA, noting 

“the RHA's concern with preventing obstructions, on the one hand, and the CWA’s focus 

on discharges into water, on the other. Since the two laws serve different purposes, their 

regulatory powers will diverge in some circumstances, as is the case here.”). Likewise, 

treating a waterbody as a TNW simply because a canoe or kayak can float on it is an 

impermissible expansion of the traditional navigable waters definition relied on by the 

Rapanos Court. Thus, the agencies’ interpretation of what can be considered a TNW to 

be regulated under paragraph (a)(1) of the proposed rule should be limited to the 

traditional scope as relied upon in Rapanos and cannot be based on navigability 

determinations for other purposes or recreational use. (p. 99-100)

Agency Response: The final rule makes no change to the agencies’ longstanding 

regulatory text for traditional navigable waters. While the 2008 attachment, the 

preamble to the proposed rule, and the Technical Support Document reflect the 

considerations the agencies while use when making traditional navigable waters 

determinations, when such a determination is part of a final agency action, if 

challenged, the federal courts will decide whether a particular water is a traditional 

navigable water for purposes of the Clean Water Act. See Technical Support 

Document, III.

Texas Association of Builders (Doc. #16516)

10.299 The proposed rule creates many areas of concern for our Association and industry. First, 

the proposed rule does not follow established law by ignoring the intent of Congress and 

recent Supreme Court rulings. The Clean Water Act was enacted as a means for Congress 

to exercise its traditional commerce power over navigation. The proposal's attempt to 

 

490 As examples, the agencies provide citations to several cases arising in non-CWA contexts, including FPL Energy 

Me. Hydro LLC v. FERC, 287 F.3d 1151 (D.C. Cir. 2002) (stream met broad definition of “navigable waters” under 

Federal Power Act where canoe could be successfully navigated downstream); Alaska v. Ahtna, 891 F.3d 1401 (9th 

Cir. 1989) (river used for commercial fishing found to be navigable for purposes of “equal footing doctrine” ). 

Although the waters at issue in these cases satisfied the navigability standard in their particular contexts, they would 

not necessarily satisfy The Daniel Ball and RHA standards and therefore may not be traditional navigable waters 

under the CWA.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

249

expand the CWA's reach to isolated, non-navigable waters, among others, is a far cry 

from the navigable waters the statute intended to cover. In addition to ignoring this intent 

of Congress, the proposed rule fails to adhere to clear Supreme Court Holdings. In both 

Solid Waste Agency of Northern Cook County v. US. Army Corps of Engineers

("SWANCC"),491 and Rapanos v. United States & Carabell v. United States

("Rapanos"),492 the Supreme Court made it clear that there are limits to federal authority 

under the CWA. By proposing to expand coverage to include areas that are rarely wet or 

exhibit characteristics of regular flooding or flow, the Agencies are plainly ignoring these 

limits and Supreme Court precedent. (p. 1-2)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Barrick Gold of North America (Doc. # 16914)

10.300 In the past, the agencies justified their broad jurisdictional reach in part based on the 

Supreme Court’s holding in United States v. Riverside Bayview Homes, Inc., 474 U.S. 

121 (1985), which affirmed Clean Water Act jurisdiction over wetlands adjacent to or 

abutting traditional navigable waters. The Court recognized that Congress intended with 

the passage of the 1972 Act “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. at 133. The Court reasoned that the “Act’s 

definition of ‘navigable waters’ as ‘the waters of the United States’ makes it clear that the 

term ‘navigable’ as used in the Act is of limited import” in interpreting the jurisdictional 

reach of the statute. For nearly 20 years after the Court’s decision in Riverside Bayview 

Homes the agencies extended the definition of “waters of the United States” to cover 

waters more and more remote from traditional navigable waters. 

That era ended in 2001, when the Supreme Court rejected the notion of unfettered Clean 

Water Act jurisdiction based on the Commerce Clause. The Court invalidated the Corps’ 

“migratory bird rule,” which (among other things) extended Clean Water Act jurisdiction 

to isolated wetlands used by migratory birds. In so doing, the Court revisited its Riverside 

Bayview Homes comment about the “limited” import of the word navigable, signaling a 

change in direction for the Court’s views about Clean Water Act jurisdiction: 

We thus decline respondents’ invitation to take what they see as the next 

ineluctable step after Riverside Bayview Homes: holding that isolated ponds, some 

only seasonal, wholly located within two Illinois counties, fall under §404(a)’s 

definition of “navigable waters” because they serve as habitat for migratory birds. 

As counsel for respondents conceded at oral argument, such a ruling would 

assume that “the use of the word navigable in the statute . . . does not have any 

independent significance.” Tr. of Oral Arg. 28. We cannot agree that Congress’ 

separate definitional use of the phrase “waters of the United States” constitutes a 

basis for reading the term “navigable waters” out of the statute. We said in 

Riverside Bayview Homes that the word “navigable” in the statute was of “limited 

effect” and went on to hold that §404(a) extended to nonnavigable wetlands 

 

491 Solid Waste Agency of Northern Cook County v. U.S Army Corps of Engineers, 531 U.S 159 (2001). 

492 Rapanos v. United States, 547 U.S 715 (2006). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

250

adjacent to open waters. But it is one thing to give a word limited effect and quite 

another to give it no effect whatever. The term “navigable” has at least the import 

of showing us what Congress had in mind as its authority for enacting the CWA: 

its traditional jurisdiction over waters that were or had been navigable in fact or 

which could reasonably be so made. 531 U.S. at 171-72. 

The Court found that a permissible definition of “waters of the United States” avoids “the 

significant constitutional and federalism questions raised” by a definition extending the 

scope of jurisdiction to the limits of Congress’ Commerce Clause authority. Id. at 174. 

The Court noted that “[w]here an administrative interpretation of a statute invokes the 

outer limits of Congress’ power, we require a clear indication that Congress intended that 

result.” Id. at 172. The Court found no evidence of such a clear intent from Congress in 

passing the Clean Water Act, and thus determined that an interpretation of “waters of the 

United States” that pushed the definition to the limits of Congress’ Commerce Clause 

Authority was not allowed. Id. at 173-174. In effect, the Court held that the scope of 

“waters of the United States” is narrower than the limits of Congress’ Commerce Clause 

Authority.

The Court’s 2006 decision in Rapanos also rejected the Corps’ expansive jurisdiction, but 

did so in a plurality opinion (authored by Justice Scalia on behalf of himself and three 

other justices) and a concurring opinion authored by Justice Kennedy, along with two 

separate 8 dissenting opinions. The plurality and Justice Kennedy agreed that the Corps’ 

assertion of jurisdiction was too broad, but could not agree on a standard for analyzing 

the appropriate boundaries of Clean Water Act jurisdiction. Courts hearing Clean Water 

Act cases after Rapanos have failed to come up with a consistent view of Clean Water 

Act jurisdiction or the appropriate way to apply the plurality decision.493

However, the plurality and Justice Kennedy were able to agree on one thing in Rapanos –

that the Court’s prior decision in SWANCC remains good law. See e.g. 547 U.S. at 727 

and 759. Accordingly, the Supreme Court has provided the agencies with guidance that is 

clear enough regarding the scope of Clean Water Act jurisdiction: the authority is broader 

than traditional navigable-in-fact waters, but also must be narrower than the limits of 

Congress’ authority to regulate under the Commerce Clause. Put another way, the 

boundary between land and water must be drawn somewhere between wetlands 

physically abutting a traditional navigable water and isolated, intrastate ponds whose only 

 

493 Since the Court’s decisions in Rapanos were issued in 2006, Circuit Courts have been divided over its 

precedential effect. Several Circuits have adopted a standard acknowledging jurisdiction if either the plurality’s 

“surface connection” standard or Kennedy’s significant nexus standard is met. Other Circuits have held that only 

Justice Kennedy’s significant nexus standard should be applied. See e.g. U.S. v. Gerke Excavating, Inc., 464 F.3d 

723, 724 (7th Cir. 2006). Still others have deftly avoided having to pick a standard. See U.S. v. Cundiff, 555 F.3d 

200 (6th Cir. 2009). Both the plurality and Justice Kennedy made clear that nothing in their opinions in Rapanos, or 

the standards for assessing jurisdiction they asserted, modified the clear limits on jurisdiction established in 

SWANCC. See 547 U.S. at 748 and 781-82. Accordingly, in assessing whether the plurality or Kennedy’s 

concurrence should control, care should be taken not to construe either standard so as to stretch the jurisdictional 

boundaries previously established. When viewed in this light it becomes clear that the plurality decision is 

“narrower” because it is “less doctrinally sweeping.” Cundiff, 555 F.3d at 209. While Barrick considers this debate 

important, rather than setting out this discussion here, Barrick refers to the comments of the NMA and WAC on this 

issue.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

251

connection to traditional navigable waters is their use by migratory birds. The proposed 

rule is legally unsustainable because it does not limit itself to a definition of “waters of 

the United States” that respects those boundaries. (p. 7-9)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B. and C.

10.301 The Agencies’ significant nexus test is inconsistent with Supreme Court precedent. The 

term “significant nexus” originated in the Court’s SWANCC opinion, where the Court 

used the term to characterize why it recognized Clean Water Act jurisdiction over 

wetlands adjacent to traditionally navigable waters in Riverside Bayview Homes. 531 

U.S. at 167. The term took on greater significance only after Rapanos, where Justice 

Kennedy based his concurring opinion on it, effectively describing it as a test that can be 

used to define the boundaries of Clean Water Act jurisdiction. 547 U.S. at 759.494 

However, Justice Kennedy also described limiting factors and offered observations that 

must be taken into account. First, he criticized the dissenting justices for ignoring the 

Clean Water Act’s text, which grants jurisdiction over the “navigable waters.” 547 U.S. 

at 778. Justice Kennedy emphasized that in defining jurisdiction, the words “navigable 

waters” must be given some effect. Id. Second, Justice Kennedy stipulated that the effects 

on navigable waters must be more than “speculative or insubstantial” to be considered 

“significant” for Clean Water Act jurisdictional purposes. 547 U.S. at 780. Third, Justice 

Kennedy criticized the Corps’ then-existing rules asserting jurisdiction over wetlands 

adjacent to tributaries – however remote and insubstantial – as extending the “significant 

nexus” concept too far, and rejected those rules as a basis for deciding the Rapanos case. 

547 U.S. at 781-82. And most importantly, Justice Kennedy implicitly criticized the 

Corps’ pre-Rapanos standard for including all tributaries as jurisdictional, observing that 

it left “wide room for regulation of drains, ditches, and streams remote from any 

navigable-in-fact water and carrying only minor water volumes towards it....” 547 U.S. 

at 781. 

The agencies acknowledge some of this context in the rule preamble, but abandon it in 

practice in the text of the proposed rule. Nowhere to be found is any recognition of 

Justice Kennedy’s criticism of jurisdiction asserted over water bodies that are remote 

from any navigable water. Instead, the agencies propose definitions of tributaries, 

adjacent waters, and other waters that have no objective or absolute geographic limit on 

what can be deemed a “water of the United States.” Rather than using a test that is based 

on or resembles the Kennedy test, the agencies rely on the study conducted by EPA’s 

Office of Research and Development, which the agencies refer to as “the Connectivity 

Report” to support these overreaching definitions in the proposed rule.495 (p. 13-14)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B. and C. The rule reflects the 

judgment of the agencies in balancing the science, the agencies’ expertise, and the 

 

494 Justice Scalia, writing for the plurality, harshly criticized Justice Kennedy’s focus on “significant nexus” as 

ignoring the Clean Water Act’s text. 547 U.S. at 755. 

495 U.S. Environmental Protection Agency, Connectivity of Streams and Wetlands to Downstream Waters: a Review 

and Synthesis of the Scientific Evidence (Washington, D.C: U.S. Environmental Protection Agency, 2013).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

252

regulatory goals of providing clarity to the public while protecting the environment 

and public health, consistent with the statute and the Supreme Court opinions. See 

Preamble, III and IV, Technical Support Document, II and VI. 

Oregon Cattlemen’s Association (Doc. #5273.1)

10.302 The jurisdictional scope of the CWA is limited to “navigable waters,” defined in the 

CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C . § 

1362(7).

Long before the CWA was enacted, the Supreme Court interpreted the phrase “navigable 

waters of the United States” as it was used in statutes preceding the CWA to refer to 

waters that are “navigable in fact” or readily susceptible of being rendered so. See 

Rapanos v. United States, 547 U.S. 715, 723 (2006) (citing The Daniel Ball, 77 U.S. 557, 

563 (1870); United States v. Appalachian Elec. Power Co., 311 U.S. 377, 406 (1940)).

Following the passage of the CWA, the Corps adopted an agency definition of “navigable 

waters” which echoed this idea that “navigable waters” means waters that are navigable 

in fact and have the capability of being used for the transportation of goods in interstate 

commerce. 33 C.F.R. pts. 209.l 20(d)( I), 203.230(e)( I).

Subsequent Supreme Court interpretations of the meaning of the term “navigable waters” 

have held that the deliberate inclusion of the word “navigable” in the CWA is useful to 

the Court in that it is indicative of what Congress believed to be the scope of its own 

authority in enacting the CWA, and therefore the intended scope of waters that would fall 

under CWA jurisdiction. Solid Waste Agency of N. Cook Cnty. v. U.S Army Corps of 

Engineers, 531 U.S. 159, 172 (2001) (SWANCC) (citing Riverside Bayview Homes, Inc., 

474 U.S. 121, 134, 1(1985)). (p. 1-2)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B. and C. 

10.303 The Supreme Court has also found that Congress intended the scope of its authority in 

enacting the CWA to extend to “its traditional jurisdiction over waters that were or had 

been navigable in fact or which could reasonably be so made.” Id. (citing Appalachian 

Electric, 311 U.S. at 407-408).

In Riverside Bayview, the Supreme Court stated that the phrase “the waters of the United 

States” as it is used in the CWA refers primarily to “rivers, streams, and other 

hydrographic features more conventionally identifiable as ‘waters’.” Riverside Bayview. 

This interpretation echoes the prior Supreme Court decisions in The Daniel Ball, in which 

the Court referred to the terms “waters” and “rivers” interchangeably, and Appalachian 

Electric, in which the Court consistently referred to “navigable waters” as “waterways.” 

The Daniel Ball, 77 U.S. at 563; Appalachian Electric, 311 U.S. at 407-409; See 

Rapanos, 547 U.S. at 734.

The Court further clarified its belief that “the waters of the United States” connotes the 

presence of some hydrographic features conventionally identifiable as “waters” in both 

Riverside Bayview and SWANCC by repeatedly referring to the “navigable waters” 

covered by the CWA as “open waters.” Riverside Bayview, 474 U.S. at 132 and n. 8, 134; 

SWANCC, 531 U.S. at 167, 172.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

253

While the Agencies do have some authority in enacting regulations interpreting what 

Congress meant by “the waters of the United States,” the Agencies’ interpretation must 

be “based on a permissible construction of the statute.” Chevron U.S.A. Inc. v. National 

Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). The Agencies’ proposal to 

expand the scope of waters to include waters which are not “waters” in the conventional 

sense, but merely “significantly affect” such conventionally-identifiable waters is not a 

permissible construction of the CWA. (p. 2)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B. and C. 

Montana Wool Growers Association, (Doc. #5843.1)

10.304 MWGA is concerned that the Agencies try to do too much with an oversimplified simple

definition. The Proposed Rule would rewrite the CWA (and constitutional limits on 

federal authority) through the definition of navigable waters. As explained in the 

following sections, the CWA does not contemplate the broad spectrum of regulation 

provided for under the Proposed Rule. Further, the Proposed Rule's definition of 

"navigable waters" is contradictory to statutory language in the CWA, parallel statutes in 

Title 33, case law, and to the Constitution of the United States. The CWA contemplates 

the end result (improving water quality in navigable waters), but does not contemplate the 

means. (p. 1-2)

Agency Response: The rule is consistent with the statute, the caselaw, and the 

Constitution. Technical Support Document, I.A., B. and C. 

10.305 Title 33 of the United States Code, "Navigation and Navigable Waters," contains the 

CWA, as added in 1972 and amended in 1977, and the Rivers and Harbors Act of 1899, 

among other statutes. The Rivers and Harbors Act and the CWA both use the phrase 

"navigable waters of the U.S." or "navigable waters of the United States" throughout their 

statutes. "Navigable waters of the United States" is defined in 33 C.F.R. Part 329 for 

purposes of the Rivers and Harbors Act as "those waters that are subject to the ebb and 

flow of the tide and/or are presently used, or have been used in the past, or may be 

susceptible for use to transport interstate or foreign commerce." 33 C.F.R. 329.4 The

Agencies agree "navigable waters," as used in Title 33, means navigable-in-fact or 

capable of being made navigable-in-fact. 79 Fed. Reg. at 22252-53.

The agencies aver "navigable waters" holds a different meaning in the CWA because the 

CWA has a broader objective. However, neither the CWA nor other statutes in Title 33 

indicate a statute's objectives should be considered in determining the meaning of 

"navigable waters." In fact, Title 33 contains an introductory chapter named "Navigable 

Waters Generally" which indicates the phrase "navigable waters" is used consistently 

throughout the title. Further, the Corps originally defined "navigable waters" the same in 

regulations for the Rivers and Harbors Act and the CWA. As explained in Solid Waste 

Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Corps 

expanded the rule without explanation in 1977. 531 U.S. 159, 168 (2001). (p. 4)

Agency Response: The agencies do not agree that “navigable waters," as used in 

the CWA means navigable-in-fact or capable of being made navigable-in-fact, nor 

do they agree that “navigable waters of the United States” in the Rivers in Harbor 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

254

Act means the same thing as “navigable waters” in the CWA. No Justice of the 

Supreme Court has ever held the CWA to be so limited. The rule is consistent with 

the statute, caselaw and Constitution. Technical Support Document, I.A. and C.

Maury County Farm Bureau (Doc. #9728)

10.306 Congress has spoken through the Clean Water Act. We certainly don't agree with all of 

the act, but it clearly limits federal jurisdiction to "Navigable Waters". The Supreme 

Court has repeatedly ruled that the wording of the CWA puts significant limits on the 

jurisdiction of the federal government. It is well past time for the EPA to listen to 

Congress and the Supreme Court, rather than issuing a rule that is clearly intended to 

circumvent the limits properly placed on them. This rule should be scrapped and work 

should begin on a new rule that limits federal jurisdiction in accordance with the CWA 

and the decisions of the Supreme Court. (p. 2)

Agency Response: The rule is consistent with the statute, caselaw and 

Constitution. Technical Support Document, I.A. and C.

Kansas Agricultural Alliance (Doc. #14424)

10.307 The proposed WOTUS rule exceeds the authority of the agencies granted by Congress 

under the CWA and violates the Commerce Clause of the U.S. Constitution. The basis of 

the CWA is to give the federal government limited authority to control pollution in water 

bodies that cross state lines and are subject to or effect commerce, and reserve the 

balance of pollution control authority to the states. This is embodied in section 101 of the 

CWA: “It is the policy of the Congress to recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the 

development and use . . . of land and water resources . . . .”4 Through its proposed rule the 

agencies have completely eviscerated the concept of federalism integrated into the CWA 

because its rule purports to regulate anything that is wet.(p. 2)

Agency Response: The rule is consistent with the statute, caselaw and

Constitution. Technical Support Document, I.A. and C.

National Corn Growers Association (Doc. #14968)

10.308 Jurisdictional determinations must be grounded meaningfully in navigability--Our views 

of the law go back to the foundational CWA premise, that jurisdictional waters be tied in 

a clear, direct, substantive and non-speculative fashion to navigation and navigability. 

Other non-navigable waters are of course jurisdictional under the CWA, but it is through 

their close, direct and substantial hydrological contribution to these navigable waters that 

they can be considered as part of a navigable system and therefore WOTUS. While the 

chemical, physical and biological effects of these other, non-navigable waters on 

downstream waters can and should be taken into account, the courts have made it clear 

that the term “navigable” in these jurisdictional determinations must be given real 

meaning. It is our view, in light of the three applicable Supreme Court decisions on this 

subject, that this proposed rule claims or could be claiming jurisdiction over features and 

waters that are so remote, and with such limited flowing water in them that they cannot in 

any way be considered as making a significant contribution to the navigability of the 

TNW. (p.18-19)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

255

Agency Response: The rule reflects the judgment of the agencies that certain 

waters significantly affect the chemical, physical, or biological integrity of 

traditional navigable waters, interstate waters, or the territorial seas. The agencies 

disagree with the commenter that under the statute or caselaw “waters of the United 

States” must make a significant contribution to navigability of a traditional 

navigable water. The agencies balance 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 statute and the Supreme Court opinions. See 

Preamble, III and IV, Technical Support Document, II and VI. 

Union Pacific Railroad Company (Doc. # 15254)

10.309 The Proposed Rule is Contrary to Controlling Supreme Court Precedent Interpreting the 

Limitations on CWA Jurisdiction The Agencies claim that “the scope of regulatory 

jurisdiction in this proposed rule is narrower than that under existing regulations.” 496 In 

making this claim, they acknowledge that narrower jurisdiction is required by the 

Supreme Court’s decisions in Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of 

Eng’rs, 531 U.S. 159, 169-174 (2001) (“SWANCC”) and Rapanos v. United States, 547 

U.S. 715 (2006) (“Rapanos”).497 They also contend that the Proposed Rule is consistent 

with SWANCC and Rapanos,498 yet the Agencies have admitted elsewhere that the 

Proposed Rule expands CWA jurisdiction to take federal control of waters and features 

within the authority of the States. 499 Indeed, these purported “gaps” in State regulation 

were used by the Agencies to attempt to justify the need for the Proposed Rule. The 

Agencies cannot have it both ways, claiming on the one hand that the Proposed Rule is 

narrower, consistent with SWANCC and Rapanos, while admitting on the other hand that 

it expands CWA jurisdiction to fill purported gaps in State regulation. The Agencies’ 

position that the Proposed Rule is consistent with the jurisdictional limitations of 

SWANCC and Rapanos requires a tortured reading of both of these controlling Supreme 

Court decisions. Additionally, the Agencies’ position is neither a correct interpretation of 

Justice Kennedy’s concurring opinion in Rapanos nor a correct application of the 

standards by which the plurality and concurring opinions must be interpreted in Supreme 

Court jurisprudence. In Rapanos, five Justices of the United States Supreme Court held 

that the Agencies had overreached in the breadth and interpretation of their definition of 

“waters of the United States.” Justice Scalia’s plurality opinion took the Agencies to task 

for their expansive interpretation of navigable waters, finding their assertions of 

jurisdiction to be “beyond parody.” Id., 547 U.S. at 734. The plurality opinion held that 

“waters of the United States” means “only those relatively permanent, standing or 

 

496 See 79 Fed. Reg. at 22,189.

497 Id.

498 See, e.g., 79 Fed. Reg. at 22,192, 22,200, 22,210.

499 See, e.g., http://www2.epa.gov/uswaters (Proposed Rule “[h]elps states to protect their waters”) (Oct. 1, 2014); 

EPA Watershed Academy Webcast (Apr. 7, 2014), http://water.epa.gov/learn/training/wacademy/upload/040714-

wous-transcript.pdf; EPA, Press Release, “EPA and Army Corps of Engineers Clarify Protection for Nation’s 

Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by 

Proposal(Mar. 25, 2014),

http://yosemite.epa.gov/opa/admpress.nsf/3881d73f4d4aaa0b85257359003f5348/ae90dedd9595a02485257ca60055

5. See 79 Fed. Reg. at 22,189. 6 Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

256

continuously flowing bodies of water ‘forming geographic features’ that are described in 

ordinary parlance as ‘streams..., oceans, rivers, [and] lakes’...[and] does not include 

channels through which water flows intermittently or ephemerally, or channels that 

periodically provide drainage for rainfall.” Id., 547 U.S. at 739. On this basis, the 

plurality found the Agencies’ expansive interpretation was not a permissible construction 

of the Clean Water Act. Id.; see also SWANCC, 531 U.S. at 169-174 (construing CWA 

jurisdiction as far more limited than the Agencies are now suggesting in the Proposed 

Rule). Justice Kennedy’s concurring opinion in Rapanos also concluded that the test the

Agencies were using to determine jurisdiction was too broad, expressly rejecting the 

premise that a seasonal drainage is transformed into a “water of the United States” merely 

because there is some intermittent or ephemeral hydrologic connection to a traditional 

navigable water. Id., 547 U.S. at 778-782. Under the approach adopted in the concurring 

opinion, a case-by-case analysis is required to determine whether there exists a 

“significant nexus” to navigable waters such that the upgradient drainages “are likely to

play an important role in the integrity of an aquatic system comprising navigable waters 

as traditionally understood” and “significantly affect the chemical, physical, and 

biological integrity of other covered waters more readily understood as ‘navigable.’” Id., 

547 U.S. at 780-782. Notably, both the plurality opinion in Rapanos and Justice 

Kennedy’s concurrence rejected the Corps claim – remarkably similar to the scope of 

jurisdiction under the Proposed Rule – that the CWA regulates waters that have any 

“hydrological connection” to navigable waters. Id., 547 U.S. at 734-739, 778-782.

Following the Rapanos decision, the vast majority of stakeholders expected that the

Agencies would follow the Court’s direction and more narrowly and carefully define the 

scope of waters subject to the Agencies’ CWA jurisdiction. Instead, the Proposed Rule 

ignores the plurality opinion and selectively quotes Justice Kennedy’s concurring 

opinion, applying those words out of context to create broad, inconsistent and confusing 

standards and exceptions, and a regulatory framework in which it would be difficult to 

find a surface feature that collects water even a hundred miles away from a navigable 

water that is not jurisdictional.9 Neither the plurality nor Justice Kennedy would have 

anticipated this result. It is not a permissible construction of the statute under Rapanos

and SWANCC. Consistent with the comments set forth herein, the Agencies should 

withdraw the Proposed Rule and work with stakeholders, including States, local 

governments and regulated entities to develop a revised rule that is consistent with 

Congressional intent and statutory and Constitutional limitations, and that is supported by 

science, provides clear standards, avoids unnecessary burdens and serves the public 

interest. B. Absent Congressional Action, the Agencies Cannot Expand Jurisdiction 

Beyond the Supreme Court’s Interpretation of CWA Jurisdiction The Proposed Rule 

impermissibly attempts to expand jurisdiction beyond the Agencies’ statutory authority 

under the CWA. Specifically, where, as here, (1) the United States Supreme Court 

opinions in SWANCC and Rapanos have construed Congressional intent as more limited

than the regulatory interpretations of jurisdictional waters under the CWA, (2) Congress 

has not amended the statute to expand the definition of “waters of the United States” 

since SWANCC and Rapanos, and (3) the Proposed Rule is inconsistent with the 

limitations set by the Rapanos plurality opinion and Justice Kennedy’s concurrence, the 

Agencies are exceeding their statutory authority in this Proposed Rule. We recognize that 

the Agencies contend that the Proposed Rule is consistent with Justice Kennedy’s 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

257

concurring opinion in Rapanos. However, the Agencies’ position is neither a correct

interpretation of Justice Kennedy’s opinion nor a correct application of the standards by 

which the plurality and concurring opinions must be interpreted. The Agencies’ position 

cannot support the validity of the Proposed Rule. To the contrary, “[w]hen a fragmented 

Court decides a case and no single rationale explaining the result enjoys the assent of five 

Justices, the holding of the Court may be viewed as that position taken by those Members 

who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 

U.S. 188, 193 (1977). Thus, controlling Supreme Court precedent requires that the 

Agencies identify a single, narrow holding from Rapanos that was “necessary” and 

“pivotal” to the decision in the case. Instead, the Agencies’ position and the Proposed

Rule (1) ignores the plurality opinion; (2) ignores the common holding of the plurality 

and concurring opinions that the criteria used by the Agencies to determine jurisdiction 

was too broad; (3) ignores the common holding of the 500 connection” can provide CWA 

jurisdiction, and that a seasonal drainage is transformed into a “water of the United 

States” merely because there is some intermittent or ephemeral hydrologic connection to 

a traditional navigable water; and (4) quotes Justice Kennedy’s concurring opinion 

selectively and out of context to attempt to support expanded jurisdiction. Indeed, the 

Agencies’ position is quite remarkable: Both Rapanos and SWANCC held that the 

Agencies must exercise less, not more, jurisdiction than they had sought to assert under 

the CWA. Since then, Congress has not acted to amend the statute to expand the 

definition of “waters of the United States.” Yet through the Proposed Rule, the same 

Agencies that the Supreme Court has expressly constrained on this same issue are again

attempting to expand their jurisdiction, claiming to be following these Supreme Court 

decisions. The Agencies are, in fact, attempting to override the Supreme Court’s 

decisions. It is well settled that only Congress has the power to override United States 

Supreme Court statutory interpretation decisions. See William N. Eskridge, Overriding 

Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331 (1991); Lane v. 

Pena, 518 U.S. 187, 198- 199 (1996) (recognizing Congressional response to statutory 

interpretation decision); Rivers v. Roadway Express, Inc., 511 U.S. 298, 304-305, fn. 5 

(1994) (recognizing Congress’ power to “alter the rule of law established in one of [the 

U.S. Supreme Court’s] cases”). Earlier this year the Supreme Court confirmed that 

“[w]hen an agency claims to discover in a long-extant statute an unheralded power to 

regulate ‘a significant portion of the American economy,’ [the Court] typically greet[s] 

the announcement with a measure of skepticism.” Util. Air Regulatory Grp. v. EPA, 134 

S. Ct. 2427, 2444 (2014) (citations and quotations omitted). The Court “expects[s] 

Congress to speak clearly if it wishes to assign to an agency decisions of vast economic 

and political significance.” Id. (citations and quotations omitted).501 Congress has 

 

500 For example, although the Agencies admit that “puddles” are generally not be subject to CWA jurisdiction 

because they usually “exist for only a brief period of time before the water in the puddle evaporates or sinks into the 

ground,” they contend that the term puddle is “not a sufficiently precise hydrologic term or a hydrologic feature” to 

be excluded altogether. 79 Fed.Reg. 22,218. Presumably, under the Proposed Rule, even a puddle could be subject 

to CWA jurisdiction if the Agencies determined it had a significant, intermittent or ephemeral surface or shallow 

subsurface nexus to waters of the United States.

501 The Supreme Court has previously rejected the Agencies’ argument in SWANCC and Rapanos that Congress’ 

failure to disapprove earlier regulations expanding CWA jurisdiction should be considered tacit approval: “Absent 

such overwhelming evidence of acquiescence, we are loath to replace the plain text and original understanding of a 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

258

frequently overridden, or attempted to override, United States Supreme Court statutory 

interpretation decisions when it has disagreed with the Court’s reading of the relevant 

statute. The Rapanos plurality acknowledged this power in finding that Congress had not 

extended the CWA jurisdiction as claimed by the Agencies, stating that it “would expect 

a clearer statement from Congress to authorize an agency theory of jurisdiction that 

presses the envelope of constitutional validity.” Rapanos, 547 U.S. at 738 (citations 

omitted). In the eight years since Rapanos was decided, Congress has not expanded the 

definition of “waters of the United States.” The Agencies cannot do so without 

Congressional action. (p. 4-7)

Agency Response: The rule is narrower in scope than the existing regulation, and 

is consistent with the statute, the caselaw, and the Constitution. Technical Support 

Document, I.A., B. and C.

10.310 ...Congress has not simply declined to take action to expand the definition of “waters of 

the United States” following Rapanos. Congress has recently initiated action to 

disapprove the expansion of CWA jurisdiction in the Proposed Rule, with passage of 

H.R. 5078, entitled the “Waters of the United States Regulatory Overreach Protection Act 

of 2014.” The legislation has 120 cosponsors and was approved by the House of 

Representatives by a vote of 262 to 152 on September 9, 2014. It is currently awaiting 

action by the Senate.502 The legislation would prohibit the Agencies from developing, 

finalizing, adopting, implementing or enforcing either the Proposed Rule or the 2012 

“Draft Guidance Regarding Identification of Waters Protected by the Clean Water Act,” 

or using either as a basis for a new rule or guidance. Additionally, the legislation would 

require the Agencies to jointly consult with state and local regulatory officials to develop 

recommendations for an alternative proposal and to provide Congress with a report on 

those recommendations.503 The stated purpose of this legislation is to respond to concerns 

of stakeholders, including Congress itself, that the Proposed Rule “fails to provide 

reasonable clarity, is inconsistent with Supreme Court precedent, and could broaden the 

scope of CWA jurisdiction, thereby triggering greater regulatory obligations” under the 

CWA. H.R. Rep. No. 113-568, at 9 (2014).504 The fact that H.R. 5078 not only passed, 

but passed by a significant margin, provides further support for the conclusion that the 

Agencies’ position is not consistent with Congressional intent or the Supreme Court’s 

directives. Indeed, it appears Congress has the same concerns about Agencies’ efforts to 

expand CWA jurisdiction as the concerns expressed by UPRR in these comments, and by 

other stakeholders providing comments on the Proposed Rule. The House Committee 

reporting on the legislation has elaborated that the Proposed Rule constitutes a significant 

overreach of the Agencies’ statutory authority and an end-run around Congress and the 

Supreme Court. Specifically, the Report of the House Committee on Transportation and 

Infrastructure noted that “in both the SWANCC and Rapanos case decisions, the 

Supreme Court began to articulate limits to federal jurisdiction under the CWA regarding 

 

statute with an amended agency interpretation.” SWANCC, 531 U.S. at 169-170; Rapanos, 547 U.S. at 750. Here 

the Agencies can make no such argument.

502 See H.R. 5078, available at: https://www.congress.gov/113/bills/hr5078/BILLS-113hr5078pcs.pdf.

503 Id.

504 See H.R. Rep. No. 113-568 (2014), available at: https://www.congress.gov/113/crpt/hrpt568/CRPT113hrpt568.pdf. .
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the scope of what are considered ‘waters of the United States.’” Id., at 4.505 Additionally, 

at the June 11, 2014 hearing of the House Subcommittee on Water Resources and

Environment, Representative Bill Shuster, Chair of the House Committee on

Transportation and Infrastructure, stated that the Proposed Rule would effectively be 

bypassing Congress, ignoring Supreme Court rulings of the past, “unilaterally broadening 

the scope of the Clean Water Act and the federal government’s reach into our everyday 

lives will adversely affect the Nation’s economy, threaten jobs, invite costly litigation, 

and restrict the rights of landowners, states, and local governments to make decisions 

about their [own] lands.”506 Representative Shuster noted that “[i]t is the responsibility of 

Congress, and not the Administration, to define the scope of jurisdiction under the Clean 

Water Act.” Id.507 Accordingly, for the foregoing reasons and those stated elsewhere in 

these comments, the Proposed Rule impermissibly attempts to expand jurisdiction 

beyond the Agencies’ statutory authority under the CWA, contrary to Congressional 

intent and the Supreme Court’s controlling interpretations of the statute in SWANCC and 

Rapanos.(p.7-9)

Agency Response: The rule is narrower in scope than the existing regulation, and 

is consistent with the statute, the caselaw, and the Constitution. Technical Support 

Document, I.A., B. and C. The agencies have complied with all applicable laws.

10.311 PROPOSED RULE PROVIDES FOR VAGUE AND EXPANSIVE 

JURISDICTION THAT VIOLATES CONSTITUTIONAL PROTECTIONS

A. The Proposed Rule’s Expansive Jurisdiction Violates the Commerce Clause

The Proposed Rule’s expansive scope of CWA jurisdiction cannot be justified under any

test of federal Commerce Clause authority. The Supreme Court’s decision in SWANCC 

squarely forecloses the argument that the CWA authorizes regulation of intermittent, 

remote or isolated waters based on the “substantial effects” that activities in those areas 

may have on interstate commerce. SWANCC, 531 U.S. at 173. Rather, the Supreme 

Court held in SWANCC that employing a substantial effects test to reach waters lying 

beyond navigable waters is entirely inconsistent with Congress’s intent to exercise its 

traditional “commerce power over navigation.” Id. at 168 n.3. The power over navigable 

waters is an aspect of the authority to regulate the channels of interstate commerce. The 

Supreme Court found in SWANCC that navigable “has at least the import of showing us 

what Congress had in mind as its authority for enacting the CWA: its traditional 

jurisdiction over waters that were or had been navigable in fact or which could 

 

505 Id.

506 See Potential Impacts of Proposed Changes to the Clean Water Act Jurisdictional Rule: Hearing Before the 

Subcommittee on Water Resources and Environment of the H. Comm. On Transportation and Infrastructure, 113th

Cong. 2d Session (2014) (statement of Rep. Bill Shuster, Chairman, House Committee on Transportation and 

Infrastructure); video available at: http://transportation.house.gov/calendar/eventsingle.aspx?EventID=378392.

507 At that same hearing, Representative Bob Gibbs, Chair of the House Subcommittee on Water Resources and the 

Environment, similarly noted that “the proposed rule misconstrues and manipulates the legal standards announced in

the SWANCC and Rapanos Supreme Court cases,” and that “[t]he agencies cannot, through guidance or a rule, 

change the scope and meaning of the Clean Water Act, as they are trying to do here.” Id. Additionally, he observed 

that the agencies “chose to write many of the provisions in the proposed rule vaguely . . . [and] this vagueness will 

leave the regulated community without any clarity and certainty as to their regulatory status and will leave them 

exposed to citizen suits. 
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260

reasonably be so made.” Id. at 172. The Court held that the Corps’s application of their 

regulations raised “significant constitutional questions” and that extending CWA 

jurisdiction to isolated, non-navigable waters like those at issue in SWANCC “is a far 

cry, indeed, from the ‘navigable waters’ and ‘waters of the United States’ to which the 

statute by its terms extends.” Id. at 173-74. Similarly, the plurality opinion in Rapanos 

found that the term “navigable waters” confers jurisdiction only over “relatively 

permanent bodies of water,” that the assertion of jurisdiction over wetlands that were not 

adjacent to traditional navigable waters under the “any connection” theory “stretches the 

outer limits of Congress’s commerce power,” and that interpretation of “waters of the 

United States” to include “channels through which water flows intermittently or 

ephemerally, or channels that periodically provide drainage for rainfall” is “not ‘based on 

a permissible construction of the statute.’” Rapanos, 547 U.S. at 738-39, quoting Chevron 

USA Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Both 

the plurality opinion as well as Justice Kennedy’s concurrence expressly rejected the 

expansive definitions of “water of the United States” now proposed by the Agencies. 

Rapanos, 547 U.S. at 734-739, 778-782. Even the Agencies acknowledge in the 

preamble to the Proposed Rule that “constitutional concerns . . . led the Supreme Court to 

decline to defer to agency regulations in SWANCC and Rapanos.” 79 Fed. Reg. at 

22,259. However, the Agencies cavalierly claim that they “are in the best position to 

address issues which may arise when waters cross state boundaries” and can do so 

“unless and until the Supreme Court elects to revisit its holding” in Illinois v. City of 

Milwaukee, 406 U.S. 91 (1972).17 79 Fed. Reg. at 22, 259. The question in Illinois v. 

City of Milwaukee was federal jurisdiction to decide controversies between States, not 

the scope of Clean Water jurisdiction. That holding provides no support for the Agencies 

position on the Commerce Clause issues presented by the Proposed Rule, which are

squarely addressed by the more recent and controlling directives of the Supreme Court in

Rapanos and SWANCC. The Proposed Rule extends CWA jurisdiction well beyond 

Congress’ power to regulate “channels of interstate commerce.” With the Proposed Rule, 

the Agencies are attempting to assert authority even broader than that which was struck 

down in SWANCC and Rapanos. The Proposed Rule provides for jurisdiction over nonnavigable features that lack any meaningful connection to navigable waters, such as 

isolated wetlands, ephemeral drainages, and isolated ponds. Like the features at issue in 

SWANCC and Rapanos, these have no cognizable relationship to the “navigable waters” 

over which Congress sought to exercise its commerce power. The Proposed Rule wholly 

ignores the limits recognized by the Supreme Court and, in the pending legislation, 

recognized by Congress itself. (p.9-10)

Agency Response: The rule is narrower in scope than the existing regulation, and 

is consistent with the statute, the caselaw, and the Constitution. Technical Support 

Document, I.A., B. and C, IV.

10.312 The Proposed Rule is Unconstitutionally Void for Vagueness

The Proposed Rule, with its expansive, vague and unclear provisions, fails to meet

Constitutional requirement for due process and is void for vagueness. The United States

Constitution prohibits adoption of expansive, vague and unclear standards that will 

require compliance and determine potential liability, including potential liability in 

administrative, civil and criminal enforcement proceedings. Additionally, an expansive 
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261

and vague definition of “waters of the United States” will open the floodgates to “citizen 

suits” under the CWA, burdening the regulated community and the courts with wasteful 

and unnecessary litigation. The Proposed Rule will also produce inconsistent results in 

lower courts until the jurisdictional limits are, once again, addressed by the Supreme 

Court. The consequences of these vague standards directly affect Constitutional 

requirements for fundamental fairness and due process. As noted above, the CWA 

provides not only permitting and compliance requirements, it also provides for 

administrative, civil and criminal enforcement for alleged violation of permits, 

unpermitted discharges and other alleged violations. See 33 U.S.C. § 1319. The definition 

and scope of “waters of the United States” is a critical element of the CWA, a 

requirement for fair notice of regulated and prohibited activities, and an important factor 

in determining the scope of regulated activity and potential liability. As such, the

jurisdictional limits must be defined in such a way as to “give fair notice of conduct that 

is forbidden or required.” FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 

(2012). The Supreme Court has made it clear that “[a] fundamental principle in our legal 

system is that laws which regulate persons or entities must give fair notice of conduct that 

is forbidden or required.” FCC, 132 S. Ct. at 2317. “This requirement of clarity in 

regulation is essential to the protections provided by the Due Process Clause of the Fifth 

Amendment . . . [and i]t requires the invalidation of laws that are impermissibly vague.” 

Id.; see also United States v. Williams, 553 U.S. 285, 304 (2008). This doctrine is often 

referred to as the “void for vagueness” doctrine The void for vagueness doctrine 

addresses two important due process concerns: “first, that regulated parties should know 

what is required of them so they may act accordingly; second, precision and guidance are 

necessary so that those enforcing the law do not act in an arbitrary or discriminatory 

way.” FCC, 132 S. Ct. at 2317; see also Grayned v. City of Rockford, 408 U.S. 104 

(1972). Although the Agencies claim the Proposed Rule is intended to provide “greater

predictability and consistency through increased clarity,”18 the expansive, internally 

inconsistent and confusing language will lead to the opposite result. Examples of the 

vague, confusing and expansive language include:

• The categorical regulation of “tributaries,” which would expand the concept of tributary

to essentially any type of water. See 79 Fed. Reg. at 22,201; 22,263.

• The assertion of jurisdiction based on a “shallow subsurface” hydrologic connection,

which cannot be determined without expert analysis. See 79 Fed. Reg. at 22,208.

• The inclusion of “ditches” within the definition of tributary (79 Fed. Reg. at 22202),

despite clear direction that ditches should not be subject to CWA jurisdiction. Rapanos,

547 U.S. at 733-34, 781.

• The presumption that every tributary in a watershed is “similarly situated” and subject 

to CWA jurisdiction if one tributary is subject to jurisdiction. See 79 Fed. Reg. at 22,204.

• The further presumption that any feature with a bed, bank and ordinary high water mark

(“OHWM”) is hydrologically connected to a traditional navigable water. See 79 Fed.

Reg. at 22,204-22,206.

• The assertion of jurisdiction over “adjacent waters” (79 Fed. Reg. at 22197) despite

rejection of “adjacency” by SWANCC and Rapanos. SWANCC, 531 U.S. at 168.

Rapanos, 547 U.S. at 780.

• The use of “other waters” to capture features “in the same region” as a jurisdictional

water but which do not fit other categories. See 79 Fed.Reg. 22,211, 22,263.
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262

• The refusal to exclude “puddles” from potential CWA jurisdiction, ironically because 

the Agencies contend “puddle” is not “sufficiently precise.” See 79 Fed.Reg. 22,218.

It is difficult to understand how the Agencies can claim the Proposed Rule’s treatment of

ditches, adjacent waters and other waters will contribute to the professed goals of “greater

predictability and consistency through increased clarity,”19 while at the same time 

contending that “puddles” is “not a sufficiently precise hydrologic term or a hydrologic 

feature” to be excluded from jurisdiction. 79 Fed.Reg. 22,218. The Proposed Rule is 

replete with vague standards that will confuse rather than clarify CWA jurisdiction The 

Proposed Rule allows for sweeping jurisdiction based on tenuous connections, catchall

categories and direct and indirect impacts, all of which leave a person or entity in the 

dark as to what actions may or may not be subject to Clean Water Act compliance or 

enforcement. Such vague and ambiguous language fails to meet Constitutional standards 

for fair notice of regulated or prohibited activities, and the potential for liability. For these 

reasons, the Proposed Rule fails to meet Constitutional requirements for fundamental 

fairness and due process, as well as Commerce Clause jurisdiction, cooperative 

federalism and the State’s primary responsibility for land and water resources.(p.11-13)

Agency Response: The Supreme Court has found that the phrase “waters of the 

United States” is ambiguous and therefore the agencies have authority to interpret 

it. The Supreme Court has never found that the phrase “waters of the United 

States” is void for vagueness. The final rule is consistent with the statute, the 

caselaw, and the Constitution. Technical Support Document, I.A and C. The final 

rule is also not vague, clearly identifying waters that are jurisdictional, waters that 

are not jurisdictional, and a limited set of waters for which case-specific significant 

nexus analyses will be performed. Preamble, IV. The rule excludes puddles from 

the definition of “waters of the United States.”

10.313 THE PROPOSED RULE MISINTERPRETS AND MISLEADINGLY APPLIES 

JUSTICE KENNEDY’S CONCURRING OPINION

A. The Proposed Rule Misleadingly Interprets Justice Kennedy’s Significant Nexus The 

Proposed Rule states that it is most consistent with the Rapanos decision to assert 

jurisdiction over waters that satisfy the standards set out in either the plurality opinion or 

Justice Kennedy’s concurrence. See 79 Fed. Reg. at 22,192, 22,212-22,213. As noted 

above, this is an incorrect application of the standards by which the plurality and 

concurring opinions must be interpreted. Those standards provide that the holding of the 

Court is the narrowest ground shared by the plurality and concurring opinions. Marks v. 

United States, 430 U.S. at 193. Applying those standards, Rapanos held that CWA 

jurisdiction requires the water to have a relatively permanent and direct surface 

connection to a traditional navigable water, and rejected the premise that adjacency or 

any “hydrological connection” could support the Agencies’ assertion of jurisdiction. Id., 

547 U.S. at 734-739, 778-782. However, even assuming arguendo that Justice Kennedy’s 

significant nexus test is applicable in determining the extent of the hydrological 

connection, it must be applied in a manner consistent with the plurality opinion role in 

Rapanos and the context provided by the other language in Justice Kennedy’s opinion. 

Justice Kennedy clearly did not intend to provide the Agencies with unfettered discretion 

to interpret the significant nexus standard so that almost every seasonal, intermittent or 

ephemeral water would be covered, no matter how remote from a traditional navigable 
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263

water. Rapanos, 547 U.S. at 778-782. Indeed, Justice Kennedy cautioned against 

applying the standard when the effects on water quality are “speculative or insubstantial.” 

Id., 547 U.S. at 780. Yet that is the very real and practical effect of the significant nexus 

test in the Proposed Rule. The Supreme Court and Justice Kennedy never intended such 

an expansive definition as the Agencies have set forth in the Proposed Rule. In 

SWANCC, the Court held that to constitute “navigable waters” under the CWA, a water 

or wetland must possess a “significant nexus” to waters that are or were navigable in fact 

or that could reasonably be so made. 531 U.S. at 167, 172. SWANCC involved 

abandoned sand and gravel pit mining operations where remnant excavation trenches had 

changed over time into scattered permanent and seasonal ponds. These ponds and 

mudflats were “isolated in the sense of being unconnected to other waters covered by the 

Act.” Rapanos, 547 U.S. at 767, citing SWANCC, 531 U.S. at 171. The Corps attempted 

to assert CWA jurisdiction over these waters pursuant to its “Migratory Bird Rule,” 

arguing that the 12 ponds were navigable waters because they were used as habitat by 

migratory birds. The Supreme Court rejected this theory and held that, “It was the 

significant nexus between the wetlands and “navigable waters” that informed [the 

Supreme Court’s] reading of the CWA in Riverside Bayview Homes.” Id., at 167. 

Because this significant nexus did not exist between the SWANCC ponds and mudflats 

and any navigable water, jurisdiction did not exist. At the other end of the spectrum is the 

Supreme Court’s decision in United States v. Riverside Bayview Homes, Inc., 474 U. S. 

121 (1985). In Riverside Bayview, the lands at issue formed part of a wetland that 

directly abutted a navigable-in-fact creek. The Supreme Court held that “the Corps’ 

ecological judgment about the relationship between waters and their adjacent wetlands 

provides an adequate basis for a legal judgment that adjacent wetlands may be defined as 

waters under the [Clean Water] Act.” Id., 474 U.S. at 134. Because the waters at issue 

were adjacent to a navigable water, a significant ecological nexus existed, and the 

Supreme Court upheld the Corps jurisdiction over wetlands adjacent to the navigable-infact creek. In Rapanos, both the plurality opinion and Justice Kennedy’s concurrence 

rejected adjacency as a basis for jurisdiction. Id., 547 U.S. at 734-739, 778-782. 

However, Justice Kennedy found that proximity is a factor, and that SWANCC and 

Riverside Bayview “establish the framework” for a significant nexus inquiry: Do the 

Corps’ regulations, as applied to the wetlands in Carabell and the three wetlands parcels 

in Rapanos, constitute a reasonable interpretation of “navigable waters” as in Riverside 

Bayview or an invalid construction as in SWANCC? Taken together these cases establish 

that in some instances, as exemplified by Riverside Bayview, the connection between a 

non-navigable 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. Rapanos, 547 U.S. at 

767, 780. The test as applied by Justice Kennedy for determining whether a significant 

nexus exists is not whether under any connection, no matter how small, exists between 

the water at issue and the navigable water. Rather, the test is whether the connection is

“so close, or potentially so close” and “affect the chemical, physical, and biological 

integrity” of a traditional navigable water sufficient to provide CWA jurisdiction. Id. The 

Agencies selectively reference Justice Kennedy’s description of the test in misapplying 

the “significant nexus” to expansively interpret the scope of their authority, ignoring the 
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264

constraints that Justice Kennedy set forth and the limitations that must be considered in 

the plurality opinion. For example, the Proposed Rule provides that all “similarly 

situated” waters in the same region, along with the water body or feature at issue, must be 

considered in determining whether a significant nexus exists with respect to a navigable 

water. See 79 Fed. Reg. at 22,212-214. The Agencies declare, without legal support or 

scientific analysis, that the same “region” means the same watershed. See 79 Fed. Reg. at 

22,199, n.6; 22,212. 13 Thus, the Proposed Rule would eliminate evaluation of whether 

the specific water body or feature has a significant nexus to a navigable water: If one 

tributary satisfies the Agencies’ formulation of the test, then all “similarly situated” 

waters in the same watershed are categorically subject to CWA jurisdiction, even if there 

is a natural or manmade break in the potential flow. This expansive interpretation cannot 

be reconciled with SWANCC or Rapanos, or with any fair reading of Justice Kennedy’s 

concurring opinion in Rapanos. B. The Proposed Rule Ignores Justice Kennedy’s 

Admonitions Concerning Limitations on Jurisdiction, as well as Those of the Supreme 

Court Plurality The Proposed Rule ignores Justice Kennedy’s admonition that there is no 

jurisdiction over waterways whose “effects on water quality are speculative or 

insubstantial,” disregards Justice Kennedy’s rejection of jurisdiction based on 

insignificant seasonal, intermittent or ephemeral hydrologic connections to a traditional 

navigable water, and ignores the plurality opinion’s conclusion that jurisdiction is limited 

to “those relatively permanent, standing or continuously flowing bodies of water 

‘forming geographic features’ that are described in ordinary parlance as ‘streams . . . , 

oceans, rivers, [and] lakes’ . . . [and] does not include channels through which water 

flows intermittently or ephemerally, or channels that periodically provide drainage for 

rainfall.” Rapanos, 547 U.S. at 739, 780, 778-782. For example, the Proposed Rule 

presumes that jurisdiction exists over a tributary if the tributary has a bed, bank and an 

OHWM (see 79 Fed. Reg. at 22,201), and then presumes that every other tributary in the 

watershed is “similarly situated,” and is subject to CWA jurisdiction if a significant nexus 

exists. See 79 Fed. Reg. at 22,204. There appears to be no consideration or analysis of 

factors such as the size, flow, structure, channel profile, proximity to the navigable water 

or the tributary at issue, surrounding geology, or other characteristics of those other

tributaries. As a result, virtually every waterway in the watershed would be deemed to be

“similarly situated” and, collectively, would be deemed to satisfy the “significant nexus” 

test and are jurisdictional waters. This is entirely inconsistent with the limitations on 

jurisdiction expressly identified in Justice Kennedy’s concurrence and the plurality 

opinion in Rapanos, as well as the holding in SWANCC. Another example of the 

Agencies’ disregard for the Supreme Court limitations on CWA jurisdiction is the 

Proposed Rule’s treatment of natural or manmade breaks in tributaries. The Proposed 

Rule states that a tributary continues as far upstream as a channel (i.e., bed and bank) is

present. See 79 Fed. Reg. at 22,202. According to the Proposed Rule, a natural or 

manmade break (e.g., levee, dam, weir elevated grade or similar break) does not establish 

the upstream limit of a tributary in cases where a bed and bank and an OHWM can be 

identified upstream and downstream of the break. Id. Of course, this greatly expands the 

upstream reach of CWA jurisdiction over tributaries, especially in arid parts of the 

country, while completely ignoring the meaning of the term “navigable waters” in 33 

U.S.C. § 1362(7). Such a remote upstream, unconnected extension of a tributary is not 

“so close” to a navigable water that jurisdiction would exist under Justice Kennedy’s 
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265

significant nexus test. The Proposed Rule builds one supposition on top of another to 

ensure that jurisdiction ultimately is found: A tributary is any feature that has a bed, bank 

and OHWM (see 79 Fed. Reg. at 22,201; 22,263); the tributary need only be part of a 

tributary system to a traditional navigable 14 water (Id. at 22,202); the upstream limit of 

the tributary is defined where the highest upstream bed, bank and OHWM exist, 

regardless of natural or manmade breaks (Id.); the tributary is considered with all other 

“similarly situated” tributaries in the whole watershed to determine if a significant nexus 

exists (Id. at 22,204); and if the tributary, and those similarly situated, have a bed, bank 

and OHWM, the Agencies presume it “can” transport pollution - even if just by flood 

waters - to that traditional navigable water (Id. at 22,204-22,206). 508 Under the Proposed 

Rule, the Agencies may never need to conduct an inspection of the particular water body 

at issue in reaching the determination that it is a jurisdictional water. This is far from 

what Justice Kennedy intended based upon the plain language of his concurring opinion. 

For example, Justice Kennedy criticized the dissent in Rapanos, stating: [T]he dissent 

would permit federal regulation whenever wetlands lie alongside a ditch or drain, 

however remote and insubstantial, that eventually may flow into traditional navigable 

waters. The deference owed to the Corps’ interpretation . . . does not extend so far. . . . 

Congress’ choice of words creates difficulties, for the Act contemplates regulation of 

certain ‘navigable waters’ that are not in fact navigable . . . . Nevertheless, the word 

‘navigable’ in the Act must be given some effect. [citations omitted]. Thus, in SWANCC, 

the Court rejected the Corps’ assertion of jurisdiction over isolated ponds and mudflats 

bearing no evident connection to navigable-in-fact waters. Rapanos, 547 U.S. at. 779 

(emphasis added), citing SWANCC, 531 U.S. 172. Indeed, in setting forth the criteria for 

the significant nexus test relied upon by the Agencies, Justice Kennedy emphasized that 

limits must be placed on the Agencies’ assertion of CWA jurisdiction. He stressed: 

Accordingly, wetlands possess the requisite nexus, and thus come within the statutory 

phrase “navigable waters,” if the wetlands, either alone or in combination with similarly 

situated lands in the region, significantly affect the chemical, physical, and biological 

integrity of other covered waters more readily understood as “navigable.” . . . The Corps’ 

theory of jurisdiction in these consolidated cases [Rapanos] --adjacency to tributaries, 

however remote and insubstantial -- raises concerns that go beyond the holding of 

Riverside Bayview; and so the Corps’ assertion of jurisdiction cannot rest on that case.” 

20 The Proposed Rule should also clarify that for a tributary to be jurisdictional, it must 

both: (a) satisfy all criteria to qualify as a tributary (e.g. it must have a clearly definable 

bed, bank and OHWM); and (b) have a significant nexus to a traditional navigable water. 

Substituting "bed, bank and OHWM" for "OHWM" hardly meets Justice Kennedy's 

standard for showing a "significant nexus." The Proposed Rule flies in the face of his 

admonition that the Agencies cannot assert jurisdiction so broad as to encompass "drains, 

ditches, and streams remote from any navigable- in-fact water and carrying only minor 

 

508 The Proposed Rule should also clarify that for a tributary to be jurisdictional, it must both: (a) satisfy all criteria 

to qualify as a tributary (e.g. it must have a clearly definable bed, bank and OHWM); and (b) have a significant 

nexus to a traditional navigable water. Substituting "bed, bank and OHWM" for "OHWM" hardly meets Justice 

Kennedy's standard for showing a "significant nexus." The Proposed Rule flies in the face of his admonition that the 

Agencies cannot assert jurisdiction so broad as to encompass "drains, ditches, and streams remote from any 

navigable- in-fact water and carrying only minor watervolumes towards it. . .” Rapanos, 547 U.S. at 781-82.
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watervolumes towards it. . .” Rapanos, 547 U.S. at 781-82. 15 Rapanos, 547 U.S. at 780 

(emphasis added). Justice Kennedy was clearly concerned that remote streams and 

ditches could be considered navigable waters under the Corps’ standards for determining 

jurisdiction. He expressly stated that a case by case analysis “is necessary to avoid 

unreasonable applications of the statute” given the breadth of the Corps’ assertion of 

jurisdiction. Id., at 782. The Agencies disregard these admonitions of Justice Kennedy, as 

well as the stronger limitations of the plurality opinion, in selectively quoting Rapanos 

and SWANCC to attempt to validate the Proposed Rule. To further illustrate his concerns 

about an overly broad interpretation of CWA jurisdiction, Justice Kennedy went to great 

lengths to discuss the waters at issue in Rapanos and Indeed, in Rapanos, Justice

Kennedy noted that “A state official testified that he observed carp spawning in a ditch 

just north of the property, indicating a direct surface-water connection from the ditch to 

the Saginaw Bay of Lake Huron.” Id., at 762. Similarly, in Carabell, Justice Kennedy 

noted that there was a surface-water connection from a ditch adjacent to the property that 

drained to a creek leading to Lake St. Clair. Id., at 764-765. Yet Justice Kennedy voted to 

vacate the judgment finding jurisdiction and remand “for consideration whether the 

specific wetlands at issue possess a significant nexus with navigable waters.” Id., at 787. 

The waters at issue in Rapanos and Carabell are not nearly as attenuated from navigable 

waters as the features the Agencies now seek to reach in the Proposed Rule, often without 

a case-by-case analysis. The Agencies’ Proposed Rule not only ignores the plurality 

opinion and disregards the admonitions limiting jurisdiction in the Rapanos concurrence, 

they have done away with Justice Kennedy’s demand for a case-by-case analysis of the 

specific surface water or feature. The result of the Agencies’ all encompassing 

interpretation of the scope of CWA jurisdiction and the Proposed Rule’s relaxed 

significant nexus test means that nearly all intermittent, ephemeral and remote waters will 

be subject to CWA jurisdiction. This is clearly not what Justice Kennedy envisioned, nor 

is it consistent with a proper interpretation of the holding in Rapanos or SWANCC.

(p.13-17)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C. The agencies disagree that there was no consideration or analysis of 

factors such as the size, flow, structure, channel profile, proximity to the navigable

water or the tributary at issue, surrounding geology, or other characteristics of 

those other tributaries. For the reasons articulated in the Preamble and the 

Technical Support Document, the agencies defined tributary based on physical 

indicators of flow, duration and frequency, represented by a bed and banks and 

another indicator of ordinary high water mark, and the region for purposes of the 

significant nexus analysis is determined by the closest traditional navigable water, 

interstate water, or the territorial seas.

National Federation of Independent Business (Doc. #8319)

10.314 The courts have made clear that the test for “traditional navigable waters” must consider 

both the “physical characteristics” of the water body and “experimentation” with 

watercraft or other demonstrated “uses to which the [waters] have been put.” FLP Energy 

Marine Hydro LLC v. FERC, 287 F.3d 1151, 1157 (D.C. Cir. 2002) (citing United States 

v. Utah, 283 U.S. 64, 83 (1931)). While the Proposed Regulation suggests that the 

Agencies’ assessment must take into account physical characteristics of the waterway, it 
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267

ultimately provides that the water will be viewed as “traditional navigable waters” if 

there is any evidence that a watercraft can navigate the waterway. This would seemingly 

justify the Agencies treating any waterway as “traditional navigable water” if any party 

can succeed in a single downstream trip—an approach that we think far too attenuated to 

satisfy the standard recognized in FLP Energy Marine Hydro LLC. (p. 4)

Agency Response: The final rule makes no change to the agencies’ longstanding 

regulatory text for traditional navigable waters. The 2008 attachment, the 

preamble to the proposed rule, and the Preamble and the Technical Support 

Document reflect the considerations the agencies will use when making traditional 

navigable waters determinations. When such a determination is part of a final 

agency action, if challenged, the federal courts will decide whether a particular 

water is a traditional navigable water for purposes of the Clean Water Act.

Environmental Defense Fund (Doc. #15352)

10.315 The draft rule provides much needed clarification of the scope of CWA jurisdiction over 

waters of the United States. The Supreme Court’s decisions in Solid Waste Agency of 

Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v.

United States have created substantial confusion for the public, the regulated community, 

and state and federal agencies over the scope of regulated waters. Further, they rolled 

back protection for many wetlands and seasonal or headwater streams that play a vital 

role in maintaining and protecting the chemical, physical and biological integrity of the 

Nation’s waters. The draft rule does not restore jurisdiction over all waters formerly 

protected by the CWA; rather, it restores jurisdiction over some formerly protected 

waters based on an extensive record of peer reviewed science that is consistent with the 

Clean Water Act and the case law.509

Agency Response: The agencies agree.

Guardians of the Range (Doc. #14960)

10.316 Traditional Navigable Waters:...the rule purports to retain its existing definition of 

"traditional navigable waters" as those waters that "are currently used, were used in the 

past, or may be susceptible to use in interstate or foreign commerce or could be possibly 

be used in commercial navigation. The court in SWANCC, 531 U.S. 159, wherein the 

High Court held that the Corps could not regulate isolated water bodies and that through 

the Clean Water Act, Congress intended to exert nothing "more than its commerce power 

over navigation. (p. 1-2)

Agency Response: The rule is consistent with the caselaw and the Constitution. 

Technical Support Document, I.C. 

 

509 The Farm Bill conservation compliance provisions (“Swampbuster”) and Farm Bill conservation programs 

demonstrate a national interest in and continuing commitment to restore and protect different kinds of small wetland 

systems, including wetland buffers along small streams, ditches that drain agricultural lands, and small, so-called 

isolated, intrastate waters such as prairie pothole wetlands. Over the life of the 2014 Farm Bill, American taxpayers 

will invest millions of dollars in these wetland restoration and in their long-term or permanent protection. 7 CFR 

Part 12; National Wildlife Federation, 2014 Farm Bill Conference Report Analysis 4 (2014).
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268

Hackensack Riverkeeper et al. (Doc. #15360)

10.317 It is common sense that that statutory term “Navigable Waters” includes traditionally 

navigable waters, and it is also common sense that has clearly been adopted by the United 

States Supreme Court. 

In Riverside Bayview Homes, the Court found that the Act applied to wetlands adjacent to 

navigable waterways. The court stated that “(i)n adopting this definition of ‘navigable 

waters,’ Congress evidently intended to repudiate limits that had been placed on federal 

regulation by earlier water pollution control statutes and to exercise its powers under the 

Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ 

under the classical understanding of that term.” United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 133, 106 S. Ct. 455, 462, 88 L. Ed. 2d 419 (1985). The Court 

based its conclusion on the proximity of the wetlands to the traditionally navigable Lake 

St. Clair; Lake St. Clair effectively lent its jurisdiction to the near–by wetlands and it had 

that jurisdiction to lend because it was, itself, navigable. 

In SWANCC, the Court found that the Act could not be construed to cover isolated 

abandoned quarries based on the presence of migratory birds because it lacked “the 

significant nexus between the wetlands and ‘navigable waters’ that informed our reading 

of the CWA in Riverside Bayview Homes.” SWANCC at 121. The Court would not allow 

the Corps to simply eliminate the word “navigable” from the Act. “We cannot agree that 

Congress' separate definitional use of the phrase ‘waters of the United States’ constitutes 

a basis for reading the 5 of 16 term ‘navigable waters’ out of the statute.” SWANCC at 

172, and “The term ‘navigable’ has at least the import of showing us what Congress had 

in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that 

were or had been navigable in fact or which could reasonably be so made. Id. (p.4-5)

Agency Response: The rule is consistent with the caselaw and the Constitution. 

Technical Support Document, I.C.

10.318 Finally, in Rapanos, all of the opinions found that the question of navigability was 

important to the Act’s jurisdiction. According to Justice Scalia, the Court has “twice 

stated that the meaning of “navigable Waters’ in the Act is broader than the traditional 

understanding of the term. We have also emphasized, however, that the qualifier 

‘navigable’ is not devoid of significance.” Rapanos at 731. Justice Kennedy noted that 

“(c)onsistent with SWANNCC and Riverside Bayview and with the need to give the term 

navigable some meaning, the Corps’ jurisdiction over wetlands depends upon the 

existence of a significant nexus between the wetlands in question and navigable waters in 

the traditional sense.” Rapnaos at 779. Justice Stevens stated his view that “The Army 

Corps has determined that wetlands adjacent to tributaries of traditionally navigable 

waters preserve the quality of our Nation’s waters by, among other things, providing 

habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of 

adjacent waters, and reducing downstream flooding by absorbing water at times of high 

flow. The Corps’ resulting decision to treat these wetlands as encompassed with the 

term ‘waters of the United States’ is a quintessential example of the Executive’s 

reasonable interpretation of statutory provision.” Rapanos at 788. (p. 5)

Agency Response: The final rule makes no change to the agencies’ longstanding 

regulatory text for traditional navigable waters. The 2008 attachment, the 
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269

preamble to the proposed rule, and the Preamble and the Technical Support 

Document reflect the considerations the agencies will use when making traditional 

navigable waters determinations. When such a determination is part of a final 

agency action, if challenged, the federal courts will decide whether a particular 

water is a traditional navigable water for purposes of the Clean Water Act. The 

rule is consistent with the caselaw and the Constitution. Technical Support 

Document, I.C.

10.1.2. Interstate Waters

Agency Summary Response:

The agencies’ rule makes no change to the interstate waters section of the existing regulations 

and the agencies would continue to assert jurisdiction over interstate waters, including interstate 

wetlands. The language of the CWA is clear that Congress intended the term “navigable waters” 

to include interstate waters, and the agencies’ interpretation, promulgated contemporaneously 

with the passage of the CWA, is consistent with the statute and legislative history. The Supreme 

Court’s decisions in SWANCC and Rapanos did not address the interstate waters provision of the 

existing regulation.

Specific Comments

Hon. Marcia H. Armstrong ,Supervisor District 5, Siskiyou County (Doc. #3099.1)

10.319 Justice Gray provided a review of “sovereign lands” in Shively v. Bowlby, 152 U.S. 1 

(1894):

"Lands under tide waters are incapable of cultivation or improvement in the manner 

of lands above high-water mark. They are of great value to the public for the purposes 

of commerce, navigation, and fishery. Their improvement by individuals, when 

permitted, is incidental or subordinate to the public use and right. Therefore, the title 

and the control of them are vested in the sovereign, for the benefit of the whole 

people. At common law, the title and the dominion in lands flowed by the tide were 

in the king for the benefit of the nation. Upon the settlement of the colonies, like 

rights passed to the grantees in the royal charters, in trust for the communities to be 

established. Upon the American Revolution, these rights, charged with a like trust, 

were vested in the original states within their respective borders, subject to the rights 

surrendered by the constitution to the United States. 

Upon the acquisition of a territory by the United States, whether by cession from one 

of the states, or by treaty with a foreign country, or by discovery and settlement, the 

same title and dominion passed to the United States, for the benefit of the whole 

people, and in trust for the several states to be ultimately created out of the territory. 

The new states admitted into the Union since the adoption of the constitution have the 

same rights as the original states in the tide waters, and in the lands under them, 

within their respective jurisdictions. The title and rights of riparian or littoral 

proprietors in the soil below high-water mark, therefore, are governed by the laws of 

the several states, subject to the rights granted to the United States by the 

constitution.
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270

The United States, while they hold the country as a territory, having all the powers 

both of national and of municipal government, may grant, for appropriate purposes, 

titles or rights in the soil below high-water mark of tide waters. But they have never 

done so by general laws, and, unless in some case of international duty or public 

exigency, have acted upon the policy, as most in accordance with the interest of the 

people and with the object for which the territories were acquired, of leaving the 

administration and disposition of the sovereign rights in navigable waters, and in the 

soil under them, to the control of the states, respectively, when organized and 

admitted into the Union. Grants by congress of portions of the public lands within a 

territory to settlers thereon, though bordering on or bounded by navigable waters, 

convey, of their own force, no title or right below high-water mark, and do not impair 

the title and dominion of the future state, when created, but leave the question of the 

use of the shores by the owners of uplands to the sovereign control of each state, 

subject only to the rights vested by the constitution in the United States." 

As stated by Justice Kennedy in Idaho et al. v. Coeur d'Alene Tribe of Idaho et al.

certiorari to the united states court of appeals for the ninth circuit No. 94-1474. Argued 

October 16, 1996. Decided June 23, 1997: 

"As we stressed in Utah Div. of State Lands v. United States, 482 U.S. 193, 195-

198 (1987), lands underlying navigable waters have historically been considered 

'sovereign lands.' State ownership of them has been 'considered an essential 

attribute of sovereignty. The Court from an early date has acknowledged that the 

people of each of the Thirteen Colonies at the time of independence 'became 

themselves sovereign; and in that character hold the absolute right to all their 

navigable waters and the soils under them for their own common use, subject only 

to the rights since surrendered by the Constitution to the general government.' 

Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842. Then, in Lessee of Pollard v. 

Hagan, 3 How. 212 (1845), the Court concluded that States entering the Union 

after 1789 did so on an 'equal footing' with the original States and so have similar 

ownership over these 'sovereign lands. Id., at 228-229. In consequence of this 

rule, a State's title to these sovereign lands arises from the equal footing doctrine 

and is 'conferred not by Congress but by the Constitution itself.' Oregon ex rel. 

State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374 (1977). The 

importance of these lands to state soverignty explains our longstanding 

commitment to the principle that the United States is presumed to have held 

navigable waters in acquired territory for the ultimate benefit of future States and 

'that disposals by the United States during the territorial period are not lightly to 

be inferred, and should not be regarded as intended unless the intention was 

definitely declared or otherwise made very plain.' United States v. Holt State 

Bank, 270 U.S. 49, 55 (1926)."

Upon statehood, the individual states, and not the United States, owns sovereign title to 

tide lands (to high water mark) and lands underlying navigable streams (to low water 

mark.) (p. 11-12)

In accordance with the English common law, most states adopted the rule whereby the 

bed and banks of tidal navigable waterbodies (influenced by the ebb and flow of the 
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271

tides) to the high water mark; and bed and banks on nontidal navigable streams to the low 

water mark, were retained in ownership by the State and held as a public trust. Ownership 

of the bed and banks of non-navigable streams1 fell to (public or private) riparian owners 

to the "thread" of the stream. Not all States adopted the system, however, California was 

among those that did. 

As stated by Justice Van DeVanter in Scott v. Lattig, 227 U.S. 229 (1913):

"...it was said in St. Paul & P. R. Co. v. Schurmeir, Wall. 272, 288, 19 L. ed. 74, 

78, 'the court does not hesitate to decide that Congress, in making a distinction 

between streams navigable and those not navigable, intended to provide that the 

common-law rules of riparian ownership should apply to lands bordering on the 

latter, but that the title to lands bordering on navigable streams should stop at the 

stream, and that all such streams should be deemed to be and remain public 

highways.' 

Besides, it was settled long ago by this court, upon a consideration of the relative 

rights and powers of the Federal and state governments under the Constitution, 

that lands underlying navigable waters within the several states belong to the 

respective states in virtue of their sovereignty, and may be used and disposed of 

as they may direct, subject always to the rights of the public in such waters and to 

the paramount power of Congress to control their navigation so far as may be 

necessary for the regulation of commerce among the states and with foreign 

nations, and that each new state, upon its admission to the Union, becomes 

endowed with the same rights and powers in this regard as the older ones. St. 

Clair County v. Lovingston, 23 Wall. 46, 68, 23 L. ed. 59, 63; Barney v. Keokuk,

94 U.S. 324, 338, 24 S. L. ed. 224, 228; Illinois C. R. Co. Illinois, 146 U.S. 387, 

434-437, 36 L. ed. 1018, 1035-1037, 13 Sup. Ct. Rep. 110; Shively v. Bowlby, 152 

U.S. 1, 48-50, 58, 38 L. ed. 331, 349, 350, 352, 14 Sup. Ct. Rep. 548; McGilvra v. 

Ross, 215 U.S. 70, 54 L. ed. 95, 30 Sup. Ct. Rep. 27.

In his review of matters applying to the "sea and its arms," Justice Gray in Shively v. 

Bowlby, 152 U.S. 1 (1894), states: 

'The shore is that ground that is between the ordinary high-water and low-water 

mark. This doth prima facie and of common right belong to the king, both in the 

shore of the sea and the shore of the arms of the sea.' Harg. Law Tracts, pp. 11, 

12. And he afterwards explains: 'Yet they may belong to the subject in point of 

propriety, not only by charter or grant whereof there can be but little doubt, but 

also by prescription or usage.' 'But, though the subject may thus have the 

propriety of a navigable river part of a port, yet these cautions are to be added, 

viz.: ... That the people have a public interest, a jus publicum, of passage and 

repassage with their goods by water, and must not be obstructed by nuisances;' 

'for the jus privatum of the owner or proprietor is charged with and subject to that 

jus publicum which belongs to the king's subjects, as the soil of an highway is, 

which though in point of property it may be a private man's freehold, yet it is 

charged with a public interest of the people, which may not be prejudiced or 

damnified.' Id. pp. 25, 36.
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272

Stated Justice Baldwin in his assenting opinion in Proprietors of Charles River Bridge v. 

Proprietors of, 36 U.S. 420 (1837) 36 U.S. 420 (Pet.):

"By the common law, it is clear, that all arms of the sea, coves, creeks, etc. where 

the tide ebbs and flows, are the property of the sovereign, unless appropriated by 

some subject, in virtue of a grant, or prescriptive right which is founded on the 

supposition of a grant (6 Pick. 182); ‘the principles of the common law were well 

understood by the colonial legislature.' 'Those who acquired the property on the 

shore, were restricted from such a use of it, as would impair the public right of 

passing over the water.' 'None but the sovereign power can authorize the 

interruption of such passages, because this power alone has the right to judge 

whether the public convenience may be better served by suffering bridges to be 

thrown over the water, than by suffering the natural passages to remain free.' Ibid. 

184. By the common law, and the immemorial usage of this government, all 

navigable waters are public property, for the use of all the citizens, and there must 

be some act of the sovereign power, direct or derivative, to authorize any 

interruption of them.' 'A navigable river is, of common right, a public highway, 

and a general authority to lay out a new highway must not be so extended as to 

give a power to obstruct an open highway, already in the use of the public.' Ibid. 

185, 187. (p. 12-14)

The common law rights of a riparian owner below the high water mark of navigable 

streams and the bed and banks of non-navigable streams are called "littoral" rights. The 

Commerce Clause extends to keeping clear the water channels of interstate and foreign 

commerce, as well as to the power to improve and enlarge their navigational capacity. 

The riparian navigational servitude extends to the bed of a public navigable waterbody, 

defined as the area of the channel below "high water mark" or the level of bank adequate 

to contain the flow at its average and mean stage during the entire year. It does not extend 

above the "high water mark." Navigational improvements that result in increases in flow 

that damage riparian structures within the bed of a navigable waterbody are not subject to 

compensation. Riparians on non-navigable waterbodies, who hold title to the thread of 

the stream, are not subject to a navigational servitude and damages occurring to their 

property as a result of improvements are compensable. 

Littoral or riparian rights in "navigable waters" are subordinate to the public's common right 

of navigation. This is called a "navigational servitude." Structures placed within or over 

navigable waters by riparian owners are subject to blockage by public works and 

uncompensated removal if determined to cause an obstruction to navigation. (p. 14)

The navigational servitude is specific to legitimate purposes of protecting and improving 

public navigation and does not extend to other matters, even those pertaining to the 

Commerce Clause. As stated by Justice Barndeis in Port of Seattle v. Oregon & W. R. 

CO., 255 U.S. 56 (1921):

"First. The right of the United States in the navigable waters within the several 

states is limited to the control thereof for purposes of navigation. Subject to that 

right Washington became upon its organization as a state the owner of the 

navigable waters within its boundaries and of the land under the same. Weber v. 

Board of Harbor Commissioners, 18 Wall. 57."
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273

In State of Wisconsin V. State of Illinois, Justice Taft stated: 278 U.S. 367 (1929), 9) 

“...It is further argued by complainants that while the power of Congress extends to the 

protection and improvement of navigation, it does not extend to its destruction or to the 

creation of obstructions to navigable capacity. This court has said that while Congress, in 

the exercise of its power, may adopt any means having some positive relation to the 

control of navigation and not otherwise inconsistent with the Constitution, (United States 

v. Chandler-Dunbar Co., 229 U.S. 53, 62, 33 S. Ct. 667) it may not arbitrarily destroy or 

impair the rights of riparian owners by legislation which has no real or substantial 

relation to the control of navigation or appropriateness to that end.” (United States v. 

River Rouge Improvement Co., 269 U.S. 411, 419, 46 S. Ct. 144; Port of Seattle v. 

Oregon & Washington R. R., 255 U.S. 56, 63, 41 S. Ct. 237).”

Justice Sanford in United States v. River Rouge Improvement Co., 69 U.S. 411 (1926) 

stated: 

"This right of a riparian owner, it is true, is subordinate to the public right of 

navigation, and subject to the general rules and regulations imposed for the 

protection of such public right. And it is of no avail against the exercise of the 

absolute power of Congress over the improvement of navigable rivers, but must 

suffer the consequences of the improvement of navigation, if Congress determines 

that its continuance is detrimental to the public interest in the navigation of the 

river. United States v. Chandler-Dunbar Co., supra, 62, 70 (33 S. Ct. 667).

The right of the United States in the navigable waters within the several States is, 

however, 'limited to the control thereof for purposes of navigation.' Port of Seattle 

v. Oregon Railroad, 255 U.S. 56, 63, 41 S. Ct. 237, 239 (65 L. Ed. 500). And 

while Congress, in the exercise of this power, may adopt, in its judgment, any 

means having some positive relation to the control of navigation and not 

otherwise inconsistent with the Constitution, United States v. Chandler-Dunbar

Co., supra, 62 (33 S. Ct. 667), it may not arbitrarily destroy or impair the rights of 

riparian owners by legislation which has no real or substantial relation to the 

control of navigation or appropriateness to that end. In Yates v. Milwaukee, supra, 

504, it was said in reference to the right of a riparian owner of a navigable stream: 

This riparian right is property, and is valuable, and, though it must be enjoyed in 

due subjection to the rights of the public, it cannot be arbitrarily or capriciously 

destroyed or impaired.' 

Stated Justice Douglas, in United States v. Twin City Power Co., 350 U.S. 222 (1956):

"The Court of Appeals concluded that the improvement of navigation was not the 

purpose of the taking but that the Clark Hill project was designed to serve flood 

control and water-power development. It is not for courts, however, to substitute 

their judgments for congressional decisions on what is or is not necessary for the 

improvement or protection of navigation. See Arizona v. California, 283 U.S. 

423, 455-457.The role of the judiciary in reviewing the legislative judgment is a 

narrow one in any case. See Berman v. Parker, 348 U.S. 26, 32; United States ex 

rel. TVA v. Welch, 327 U.S. 546, 552. The decision of Congress that this project 

will serve the interests of navigation involves engineering and policy 

considerations for Congress and Congress alone to evaluate. Courts should 
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274

respect that decision until and unless it is shown "to involve an impossibility," as 

Mr. Justice Holmes expressed it in Old Dominion Co. v. United States, 269 U.S. 

55, 66. ‘If the interests of navigation are served, it is constitutionally irrelevant 

that other purposes may also be advanced. United States v. Appalachian Power 

Co., 311 U.S. 377, 426; Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508, 

525, 533-534. As we said in the Appalachian Power Co. case, 'Flood protection, 

watershed development, recovery of the cost of improvements through utilization 

of power are likewise parts of commerce control.' 311 U.S., at 426." (p. 14-16)

Justice Field in The Daniel Ball, 77 U.S. 557 (1870) describes Congress' powers under 

the "Commerce Clause" as had developed to that point in time: 

"That power authorizes all appropriate legislation for the protection or 

advancement of either interstate or foreign commerce, and for that purpose such 

legislation as will insure the convenient and safe navigation of all the navigable 

waters of the United States, whether that legislation consists in requiring the 

removal of obstructions to their use, in prescribing the form and size of the 

vessels employed upon them, or in subjecting the vessels to inspection and 

license, in order to insure their proper construction and equipment..." 

Justice Strong in the State of South Carolina v. State of Georgia, 93 U.S. 4 (1876) further 

clarified: 

"...It is not, however, to be conceded that Congress has no power to order 

obstructions to be placed in the navigable waters of the United States, either to 

assist navigation or to change its direction by forcing it into one channel of a river 

rather than the other. It may build light-houses in the bed of the stream. It may 

construct jetties. It may require all navigators to pass along a prescribed channel, 

and may close any other channel to their passage. If, as we have said, the United 

States have succeeded to the power and rights of the several States, so far as 

control over inter-State and foreign commerce is concerned, this is not to be 

doubted..." 

Upon this subject the case of Pennsylvania v. The Wheeling and Belmont Bridge 

Co., 18 How. 421, is instructive. There it was ruled that the power of Congress to 

regulate commerce includes the regulation of intercourse and navigation, and 

consequently the power to determine what shall or shall not be deemed, in the 

judgment of law, an obstruction of navigation. It was, therefore, decided that an 

act of Congress declaring a bridge over the Ohio River, which in fact did impede 

steamboat navigation, to be a lawful structure, and requiring the officers and 

crews of vessels navigating the river to regulate their vessels so as not to interfere 

with the elevation and construction of the bridge, was a legitimate exercise of the 

power of Congress to regulate commerce. 

It was further ruled that the act was not in conflict with the provision of the 

Constitution, which declares that no preference shall be given by any regulation 

of commerce or revenue to the ports of one State over those of another. The 

judgment in that case is, also, a sufficient answer to the claim made by the present

complainant, that closing the channel on the South Carolina side of Hutchinson's 

Island is a preference given to the ports of Georgia forbidden by this clause of the 
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275

Constitution. It was there said that the prohibition of such a preference does not 

extend to acts which may directly benefit the ports of one State and only 

incidentally injuriously affect those of another, such as the improvement of rivers 

and harbors, the erection of light-houses, and other facilities of commerce. 'It will 

not do,' said the court, 'to say that the exercise of an admitted power of Congress 

conferred by the Constitution is to be withheld, if it appears or can be shown that 

the effect and operation of the law may incidentally extend beyond the limitation 

of the power.' The case of The Clinton Bridge, is in full accord with this decision. 

It asserts plainly the power of Congress to declare what is and what is not an 

illegal obstruction in a navigable stream." 

Stated Justice Roberts in U.S. v. Chicago, M., ST. P. & P. R. CO., 312 U.S. 592 (1941): 

"...The power of Congress extends not only to keeping clear the channels of 

interstate navigation by the prohibition or removal of actual obstructions located 

by the riparian owner, or others, but comprehends as well the power to improve 

and enlarge their navigability. (p. 16-17)

In 1890, Congress enacted the first Rivers & Harbors Appropriation Act. Explained 

Justice Brown in Covington & C. Bridge Co, v. Com. of Kentucky, 154 U.S. 204 (1894):

"... Of recent years it has been the custom to obtain the consent of congress for the 

construction of bridges over navigable waters, and by the seventh section of the 

act of September 19, 1890 (26 Stat. 426, 454), it is made unlawful to begin the 

construction of any bridge over navigable waters until the location and plan of 

such bridge have been approved by the secretary of war, who has also been in 

frequent instances authorized to regulate the tolls upon such bridges where they 

connected two states...."

In Lake Shore & M S R Co. v. State of Ohio, 165 U.S 365 (1897), Justice White reviewed 

the provisions of the Act referring to section 7 which included prohibitions on channel 

changes: 

'And it shall not be lawful hereafter to commence the construction of any bridge, 

bridge-draw, bridge piers and abutments, causeway or other works over or in any 

port, road, roadstead, haven, harbor, navigable river, or navigable waters of the 

United States, under any act of the legislative assembly of any state, until the 

location and plan of such bridge or other works have been submitted to and 

approved by the secretary of war, or to excavate or fill, or in any manner to alter 

or modify the course, location, condition, or capacity of the channel of said 

navigable water of the United States, unless approved and authorized by the 

secretary of war: provided, that this section shall not apply to any bridge, 

bridgedraw, bridge piers and abutments the construction of which has been 

heretofore duly authorized by law, or be so construed as to authorize the 

construction of any bridge, draw bridge, bridge piers and abutments, or other 

works, under an act of the legislature of any state, over on in any stream, port, 

roadstead, haven or harbor, or other navigable water not wholly within the limits 

of such state.' [ See also Justice Harlan, Cummings v. City of Chicago, 188 U.S. 

410 (1903).]
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276

As described by Justice Shiras Leovy v. U S, 177 U.S. 621 (1900), amendments in 1892 

were as follows:

..."In the river and harbor act of 1892 (27 Stat. at L. pp. 88, 110, chap. 158), 

section 7 of the act of 1890 was amended and re-enacted as follows": 

"... or to excavate or fill, or in any manner to alter or modify the course, location, 

condition, or capacity of any port, roadstead, haven, harbor, harbor of refuge, or 

enclosure within the limits of any breakwater, or of the channel of any navigable 

water of the United States, unless approved and authorized by the Secretary of 

War: " 

Stated Justice Roberts in U.S. v. Chicago, M., ST. P. & P. R. CO., 312 U.S. 592 (1941): 

“Commerce, the regulation of which between the states is committed by the 

Constitution to Congress, article 1, 8, cl. 3, includes navigation.’ The power to 

regulate commerce comprehends the control for that purpose, and to the extent 

necessary, of all the navigable waters of the United States which are accessible 

from a State other than those in which they lie. For this purpose they are the 

public property of the nation, and subject to all the requisite legislation by 

Congress.' And the determination of the necessity for a given improvement of 

navigable capacity, and the character and extent of it, is for Congress alone. 

Whether, under local law, the title to the bed of the stream is retained by the State 

or the title of the riparian owner extends to the thread of the stream, or, as in this 

case, to low water mark, the rights of the title holder are subordinate to the 

dominant power of the federal Government in respect of navigation. The power of 

Congress extends not only to keeping clear the channels of interstate navigation 

by the prohibition or removal of actual obstructions located by the riparian owner, 

or others, but comprehends as well the power to improve and enlarge their 

navigability.” 

In United States v. Republic Steel Corp., 362 U.S 482 (1960), it was determined that a 

steel mill had discharged industrial solid wastes into the Calumet River without obtaining 

a permit from the Army Corps. of Engineers. The suspended solid waste had settled out 

and reduced the depth of the channel creating an obstruction to the navigable capacity of 

the river – prohibited under the Rivers and Harbors Act of 1899. 

Stated Justice Douglas: 

“This is a suit by the United States to enjoin respondent companies from 

depositing industrial solids in the Calumet River (which flows out of Lake 

Michigan and connects eventually with the Mississippi) without first obtaining a 

permit from the Chief of Engineers of the Army providing conditions for the 

removal of the deposits and to order and direct them to restore the depth of the 

channel to 21 feet by removing portions of existing deposits. 

The District Court found that the Calumet was used by vessels requiring a 21-foot 

draft, and that that depth has been maintained by the Corps of Engineers. 

Respondents, who operate mills on the banks of the river for the production of 

iron and related products, use large quantities of the water from the river, 

returning it through numerous sewers. The processes they use create industrial 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

277

waste containing various solids. A substantial quantity of these solids is recovered 

in settling basins but, according to the findings, many fine particles are discharged 

into the river and they flocculate into larger units and are deposited in the river 

bottom. Soundings show a progressive decrease in the depth of the river in the 

vicinity of respondents' mills. But respondents have refused, since 1951, the 

demand of the Corps of Engineers that they dredge that portion of the river. The 

shoaling conditions being created in the vicinity of these plants were found by the 

District Court to be created by the waste discharged from the mills of respondents. 

This shoaling was found to have reduced the depth of the channel to 17 feet in 

some places and to 12 feet in others. The District Court made findings which 

credited respondents with 81.5% of the waste deposited in the channel, and it 

allocated that in various proportions among the three respondents.” See 155 F. 

Supp. 442.

“Section 10 of the Rivers and Harbors Act of 1899, 30 Stat. 1121, 1151, as 

amended, 33 U.S.C. 403, provides in part: "That the creation of any obstruction 

not affirmatively authorized by Congress, to the navigable capacity of any of the 

waters of the United States is hereby prohibited; . . . 

The section goes on to outlaw various structures "in" any navigable waters except 

those initiated by plans recommended by the Chief of Engineers and authorized 

by the Secretary of the Army. Section 10 then states that "it shall not be lawful to 

excavate or fill, or in any manner to alter or modify the . . . capacity of . . . the 

channel of any navigable water of the United States unless the work has been 

recommended by the Chief of Engineers and authorized by the Secretary of the 

Army prior to beginning the same. 

Section 13 forbids the discharge of "any refuse matter of any kind or description 

whatever other than that flowing from streets and sewers and passing there from 

in a liquid state, into any navigable water of the United States"; but 13 grants 

authority to the Secretary of the Army to permit such deposits under conditions 

prescribed by him. 

“Our conclusions are that the industrial deposits placed by respondents in the 

Calumet have, on the findings of the District Court, created an "obstruction" 

within the meaning of 10 of the Act and are discharges not exempt under 13. We 

also conclude that the District Court was authorized to grant the relief. 

The history of federal control over obstructions to the navigable capacity of our 

rivers and harbors goes back to Willamette Iron Bridge Co. v. Hatch, where the 

Court held "there is no common law of the United States" which prohibits 

"obstructions" in our navigable rivers. Congress acted promptly, forbidding by 10 

of the Rivers and Harbors Act of 1890, "the creation of any obstruction, not 

affirmatively authorized by law, to the navigable capacity" of any waters of the 

United States. The 1899 Act followed a report to Congress by the Secretary of 

War, which at the direction of Congress, contained a compilation and revision of 

existing laws relating to navigable waters. The 1899 Act was said to contain "no 

essential changes in the existing law." Certainly so far as outlawry of any 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

278

"obstructions" in navigable rivers is concerned there was no change relevant to 

our present problem. 

It is argued that "obstruction" means some kind of structure. The design of 10 

should be enough to refute that argument, since the ban of "any obstruction," 

unless approved by Congress, appears in the first part of 10, followed by a 

semicolon and another provision which bans various kinds of structures unless 

authorized by the Secretary of the Army. 

The reach of 10 seems plain. Certain types of structures, enumerated in the second 

clause, may not be erected "in" any navigable river without approval by the 

Secretary of the Army. Nor may excavations or fills, described in the third clause, 

that alter or modify "the course, location, condition, or capacity of" a navigable 

river be made unless "the work" has been approved by the Secretary of the Army. 

There is, apart from these particularized invasions of navigable rivers, which the 

Secretary of the Army may approve, the generalized first clause which prohibits 

"the creation of any obstruction not affirmatively authorized by Congress, to the 

navigable capacity" of such rivers. We can only conclude that Congress planned 

to ban any type of "obstruction," not merely those specifically made subject to 

approval by the Secretary of the Army. It seems, moreover, that the first clause 

being specifically aimed at "navigable capacity" serves an end that may at times 

be broader than those served by the other clauses. Some structures mentioned in 

the second clause may only deter movements in commerce, falling short of 

adversely affecting navigable capacity. And navigable capacity of a waterway 

may conceivably be affected by means other than the excavations and fills 

mentioned in the third clause. We would need to strain hard to conclude that the 

only obstructions banned by 10 are those enumerated in the second and third 

clauses. In short, the first clause is aimed at protecting "navigable capacity," 

though it is adversely affected in ways other than those specified in the other 

clauses. 

There is an argument that 10 of the 1890 Act, 26 Sta. 454, which was the predecessor of 

the section with which we are now concerned, used the words "any obstruction" in the 

narrow sense, embracing only the prior enumeration of obstructions in the preceding 

sections of the Act. The argument is a labored one which we do not stop to refute step by 

step. It is unnecessary to do so, for the Court in United States v. Rio Grande Irrigation 

Co., decided not long after the 1890 Act became effective, gave the concept of 

"obstruction," as used in 10, a broad sweep: "It is not a prohibition of any obstruction to 

the navigation, but any obstruction to the navigable capacity, and anything, wherever 

done or however done, within the limits of the jurisdiction of the United States which 

tends to destroy the navigable capacity of one of the navigable waters of the United 

States, is within the terms of the prohibition." This broad construction given 10 of the 

1890 Act was carried over to 10 of the 1899 Act in Sanitary District v. United States, 66 

U.S. 405, 429 the Court citing United States v. Rio Grande Irrigation Co., supra, with 

approval and saying that 10 of the 1899 Act was "a broad expression of policy in 

unmistakable terms, advancing upon" 10 of the 1890 Act.” 

The teaching of those cases is that the term "obstruction" as used in 10 is broad 

enough to include diminution of the navigable capacity of a waterway by means 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

279

not included in the second or third clauses. In the Sanitary District case it was 

caused by lowering the water level. Here it is caused by clogging the channel with 

deposits of inorganic solids. Each affected the navigable "capacity" of the river. 

The concept of "obstruction" which was broad enough to include the former 

seems to us plainly adequate to include the latter. 

California v. Sierra Club, 451 U.S. 287 (1981); Footnote 2: "Section 10 of the Rivers and 

Harbors Appropriation Act of 1899 provides: 

'The creation of any obstruction not affirmatively authorized by Congress, to the 

navigable capacity of any of the waters of the United States is prohibited; and it 

shall not be lawful to build or commence the building of any wharf, pier, dolphin, 

boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, 

haven, harbor, canal, navigable river, or other water of the United States, outside 

established harbor lines, or where no harbor lines have been established, except 

on plans recommended by the Chief of Engineers and authorized by the Secretary 

of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter 

or modify the course, location, condition, or capacity of, any port, roadstead, 

haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any 

breakwater, or of the channel of any navigable water of the United States, unless 

the work has been recommended by the Chief of Engineers and authorized by the 

Secretary of the Army prior to beginning the same." 30 Stat. 1151, 33 U.S.C. 403.

In conclusion, it is clear that the Commerce Clause will not sustain regulation of nonnavigable streams. Please provide your Constitutional delegation of authority to do so. (p.

17-21)

Agency Response: No Justice of the Supreme Court in the three recent CWA 

jurisdiction cases has concluded that the Commerce Clause will not sustain 

regulation of non-navigable streams. In addition, no Justice of the Supreme Court 

in the three recent CWA jurisdiction cases has concluded the CWA is so limited. 

The final rule is consistent with the statute, the caselaw, and the Constitution. 

Technical Support Document, I.A and C. 

Florida Department of Agriculture and Consumer Services (Doc. #10260)

10.320 The Commerce Clause is generally held to be the source of federal authority to regulate 

the nation’s waters under the CWA, but neither SWANCC nor Rapanos establishes the 

scope of Congress’s constitutional authority. Those decisions were reached on statutory 

grounds, solely looking to language in the Act itself to come to conclusions regarding the 

meaning and extent of “navigable waters” and “waters of the US.” But the Court has 

danced around this issue, providing dicta which indicates that the Court perceives a limit 

to the CWA’s reach under the Commerce Clause and that the Court expects agencies to 

reasonably establish what that limit is by regulation. Chief Justice Roberts expressed his 

view that at the time of SWANCC, the Corps supposed its authority under the CWA to be 

“essentially limitless,” but “such a boundless view was inconsistent with the limiting 

terms” Congress used in the CWA. Rapanos, 547 U.S. at 757 (citing SWANCC, 531 U.S. 

at 167-174). He goes on to recognize the Corps’s 2003 rulemaking effort as an 

opportunity for the agency to “refine its view of its authority” in response to SWANCC, 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

280

which would provide guidance meriting Chevron deference, and expresses 

disappointment that the Corps chose instead to “adhere to its essentially boundless view 

of the scope of its power.” Id. at 758.

There are two ways federal authority can be implicated under the Commerce Clause, by 

regulation of the “channels” of interstate or foreign commerce or by regulation of an 

activity that “substantially affects” interstate or foreign commerce. Proponents have used 

both sources to support federal authority under the CWA. The “channels” reasoning 

derives its support for expansive jurisdiction based upon ecological connectivity, which, 

as discussed above, the Court has already rejected as overly broad when used as a single 

sufficient criteria. Rapanos, 547 U.S. at 742, 784. Arguments using the “substantially 

affects” basis seem to favor an even broader scope of federal authority based upon the 

sources of pollution being “commercial” by-products, the uses of the land being typically 

commercial, and degradation of any water affecting interstate and foreign commerce. (p.

76)

Agency Response: The agencies are not asserting federal authority under the 

CWA based on the substantially affects basis. The final rule is consistent with the 

statute, the caselaw, and the Constitution. Technical Support Document, I.A and C. 

Barona Band of Mission Indians (Doc. #10966)

10.321 Even if de minimis effects on interstate commerce can be aggregated, such aggregation is 

not appropriate here. The above discussion assumes that the de minimis effect on 

interstate commerce of an intra state activity can be aggregated to produce a cumulatively 

significant effect.510 The Supreme Court has held in Lopez and Morrison, supra, that 

possession of a firearm in a school zone and a civil remedy for violence against women 

are non-economic activities and their effect on interstate commerce is simply to 

attenuated to support such legislation under the Commerce Clause. In doing so, the 

Supreme Court held that, without more, the de minimis effects of an intrastate noneconomic activity cannot be aggregated to produce a cumulative significant effect: 

“We accordingly reject the argument that Congress may regulate noneconomic, 

violent criminal conduct based solely on that conduct's aggregate effect on 

interstate commerce.” U.S. v. Morrison, 529 U.S. 598, 617 (2000).

While the Supreme Court has not identified what else might be needed to aggregate such 

de minimus effects, the Firth Circuit has. After a lengthy and thorough analysis, it held 

that the Endangered Species Act ("ESA") was economic in nature, so that de minimus 

intrastate effects on interstate commerce could be aggregated to produce the required 

significant economic effect: 

“ESA is an economic regulatory scheme; the regulation of intrastate takes of the 

Cave Species is an essential part of it. Therefore, Cave Species takes may be 

aggregated with all other Cave Species takes. . . . In sum, application of ESA's 

take provision to the Cave Species is a constitutional exercise of the Commerce 

 

510 U.S. v. Lopez, 514 U.S. 549, 559 (1995). “We conclude . . . that the proper test requires an analysis of whether the 

regulated activity 'substantially affects' interstate commerce." 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

281

power.” GDF Realty Investments, Ltd v. Norton, 326 F.3d 622, 640-641 (5th Cir., 

2003)

GDF is the leading analysis of this point regarding the ESA. The opinion fully considers 

Lopez and Morrison, supra. In reaching its conclusion that the ESA is economic in nature 

regarding the take provisions, the Fifth Circuit considered several factors. The relevant 

factor for present purposes is the requirement that the de minimis intrastate activity must 

be an "essential" part of the overall regulatory scheme. Id, 326 F.3d at 639, quoting 

Lopez, supra.511 Aggregation of the de mnimis intrastate effects of federal regulation was 

appropriate in Lopez and GDF because the activity was determined in both cases to be 

economic and essential to the larger regulatory scheme. The CWA is certainly a 

comprehensive regulatory scheme but defining "tributary" as the EPA now proposes is 

not essential to that regulatory scheme. The point at which a flow of water becomes a 

regulated "tributary" could be identified at any number of points, e.g., where a bed, 

banks, and OHWM first appears irrespective of any breaks; where a bed or banks, plus an 

OHWM appears; where some minimal volume of flow first occurs; where a stated 

frequency of flow occurs; where the flow first joins a navigable water, where a certain 

level of pollutant is first carried, etc. Naming the point where a "tributary" first acquires a 

bed, banks, and OHWM, not counting breaks, is just the choice made by the EPA in the 

proposed regulation. Any of these other points would equally suffice. Therefore, the 

choice posited by the EPA is not essential to the overall CWA regulatory scheme. 

Because it is not essential under Lopez, aggregation of de minimis intrastate effects to 

produce a significant effect cannot occur. (p. 5-6)

Agency Response: The agencies analyze similarly situated waters in combination 

consistent with Justice Kennedy’s standard. Technical Support Document, I.C.

10.322 The rule needlessly pushes the outer limits of Congressional power under the Commerce 

Clause without express authorization. One bedrock principle of the Supreme Court's 

jurisprudence regarding the CWA is that the Court will not accept an administrative 

interpretation of the statute that pushes the outer limits of Congressional power under the 

Commerce Clause without at least an express statement that such is truly the intent of 

Congress.

Where an administrative interpretation of a statute invokes the outer limits of Congress' 

power, we expect a clear indication that Congress intended that result. This requirement 

stems from our prudential desire not to needlessly reach constitutional issues and our 

assumption that Congress does not casually authorize administrative agencies to interpret 

a statute to push the limit of congressional authority. This concern is heightened where 

the administrative interpretation alter the federal-state framework by permitting federal 

encroachment upon a traditional state power. Thus, "where an otherwise acceptable 

construction of a statute would raise serious constitutional problems, the Court will 

construe the statute to avoid such problems unless such construction is plainly contrary to 

the intent of Congress." SWANCC v. Army Corps of Engineers, 531 U.S. 159, 172-173 

(2001).

 

511514 U.S. at 561. "Section 922(q) is not an essential part of a larger regulation of economic activity, in which the 

regulatory scheme could be undercut unless the intrastate activity were regulated." 
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282

Relying on this holding from SWAANC, the Fifth Circuit has refused to uphold a preRapanos effort to regulate all "tributaries", holding that SWANCC controls and does not 

permit an administrative reading of the Clean Water Act that pushes the outer limits of 

Congressional power under the Commerce Clause. In re Needham, 354 F.3d 345, n. 8 

(5th Cir., 2003).

The broad definition of "tributary" advanced by the proposed rule would similarly and

impermissibly vastly expand the regulatory jurisdiction of the EPA, again pushing the 

outer limits of the Commerce Clause power without Congressional sanction. The current 

proposal extends "waters of the United States" to untold areas of land that are completely 

dry virtually always, and carry water sometimes only once in several years, and then only 

in small quantities for brief periods if a bed, bank, and OHWM can be found at even the 

most remote upgradient location. Such a slender reed is insufficient to support the 

exercise of the outer limits of Congressional power under the Commerce Clause.

This Constitutional infirmity, identified by SWANCC, is compounded by its intersection 

with another Constitutional infirmity. Such agency jurisdiction over land that is almost 

always dry amounts to federal control over local land use, a traditionally state and local 

function.512 The CWA itself disclaims any intent to divest local governments (such as the 

Tribe in this case513) of their authority over the use and development of land. In the CWA 

Congress declared its intent to "recognize, preserve, and protect the primary 

responsibilities of States . . . to plan the development and use . . . of land and water 

resources" (33 U.S.C. §1251(b)). The current proposed post-Rapanos expansion of 

federal regulatory jurisdiction into local control of the use and development of dry land 

on which rain only rarely falls and flows similarly pushes the outer limits of 

Congressional power under the Commerce Clause, again without express Congressional 

sanction. It is particularly and needlessly abrasive in the federal scheme due to the special 

nature of the land in question. The beds of tributaries are the sovereign property of states. 

The current strained effort to regulate the use of such land "implicates special [state] 

sovereignty interests". Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 281 (1997). A state's 

control over such lands is of Constitutional dimensions:

In consequence of this rule, a state's title to these sovereign lands arises from the equal 

footing doctrine and is "conferred not by Congress but by the Constitution itself.” Id., 512 

U.S at 283.

Certainly, any valid exercise of Congressional power under the Commerce Clause 

overcomes whatever effect it may have on this local retained power over land use. 

Similarly, the United States certainly has a navigational servitude over all such state lands 

within the beds of navigable rivers and other navigable waters. Kaiser Aetna v. US., 444 

U.S. 164, 175 (1979). Such state-owned lands below this servitude are subject to it. 

Tributaries that actually flow in some quantity for an appreciable time are certainly 

subject to the federal commerce power, although not to the navigational servitude. But, 

 

512

. Hess v. Port AuthorityTrans-Hudson Corp., 513 U.S. 30, 44 (1994) “...regulation of land use [is] a function 

traditionally performed by local government." 

513 SantaRosa Band of Indians v. Kings County, 532 F.2d 655, 663 (9th Cir., 1975) “...Congress had in mind a 

distribution of jurisdiction which would make the tribal government over the reservation more or less the equivalent 

of a county or local government in other areas within the state ..."
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

283

under SWANCC, neither the Commerce Clause nor the navigational servitude overcomes 

the above Constitutionally-based right of local governments to control land use when 

such federal control pushes the outer limits of the Commerce Clause based solely on 

administrative interpretation, rather than express Congressional directive. As the 

Supreme Court has summarized this limitation on the Commerce Power: "The 

Constitution requires a distinction between what is truly national and what is truly local." 

US. v. Morrison, 529 U.S. 598, 617 (2000). The proposed rule regarding tributaries 

obliterates this distinction by its overbreadth and thus is forbidden under SWANCC. As in 

SWANCC, there is no need here to strain to expand the definition of "tributary" to the 

point where it raises the same kinds of constitutional issues, especially when a less 

needlessly aggressive and more objective definition would avoid such issues. (p. 7-8)

Agency Response: The final rule is consistent with the statute, the Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A and C. 

Whitman County Commissioners, Colfax, WA (Doc. #12860)

10.323 The proposed changes to the definition of “Waters of the United States” exceeds the 

limits on regulation of waters linked and adjacent to navigable waters as set forth by the 

United States Supreme Court in both Solid Waste Agency of Northern Cook County v 

United States Army Corp of Engineers and Rapanos v. U.S. The Congress of the United 

States has also clearly stated the Clean Water Act applies to Navigable waters and 

adjacent wetlands. The Courts have stated there must be a significant nexus between the 

Navigable waters and other waters in order for those other waters to fall under regulations 

prescribed in the Clean Water Act. The proposed rule extends CWA regulation to waters 

that do not fit this definition and should thus be rescinded. (p. 1)

Agency Response: The final rule is consistent with the statute, the Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A and C. The 

agencies have determined that the waters that are categorically jurisdictional have a 

significant nexus. Preamble, III and IV, Technical Support Document, II, VI.

Delta Board of County Commissioners (Doc. #14405)

10.324 Delta County Commissioners are also disappointed in the proposed rule's lack of clarity 

due to ambiguous or undefined terms and phrases. As it stands, it is extremely unclear 

how far the agencies intend federal jurisdiction to extend and if taken to the maximum 

extent possible the proposed rule wraps in virtually every feature across the nation, which 

contravenes not only the CWA itself but also the Commerce Clause of the U.S. 

Constitution. This is very troublesome for Colorado and those states downstream, that 

rely on water originating in Colorado. (p. 4)

Agency Response: The final rule clearly establishes categories of waters that are 

jurisdictional, categories that are not jurisdictional, and limited waters that are 

subject to a case-specific significant nexus analysis. Preamble, IV. The final rule is 

consistent with the statute, the Supreme Court decisions, and the Constitution. 

Technical Support Document, I.A and C. 

Utah Association of Counties (Doc. #14756)

10.325 33 CFR 328.3 Current Rule: (2) All interstate waters including interstate wetlands;
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

284

Proposed Change to 33 CFR 328.3: All interstate waters, and (b) including all interstate 

wetlands that (i) are immediately adjacent to the interstate waters, and (ii) have a 

significant nexus to the interstate waters. (p. 8)

Agency Response: The existing regulation speaks for itself. 

Waters Advocacy Coalition (Doc. #19721.1)

10.326 The Proposed Rule inappropriately allows for waters to be jurisdictional based on their 

relationships to interstate waters. The proposed rule accords new status to interstate 

waters, equating them with TNWs and allowing for features to be jurisdictional based on 

a relationship to interstate waters. As discussed in more detail in section III.E., under the 

proposed rule, for example, “other waters” can now be jurisdictional if they have a 

significant nexus to a non-navigable interstate water. See 79 Fed. Reg. at 22,200. There is 

no support for this interpretation in Riverside Bayview Homes, SWANCC, or Rapanos, 

because those decisions did not concern interstate waters – they dealt solely with TNWs. 

The significant nexus principles that originated in SWANCC and Rapanos are tied to 

TNWs – not interstate waters. And interstate waters differ from TNWs because they are 

sometimes non-navigable and may not qualify as highways for commerce. See infra

section II.J.1.

The proposed rule does not provide a definition of “interstate waters,” but a significant 

portion of the preamble’s Appendix B (Legal Analysis) is devoted to supporting the 

notion that interstate waters need not be navigable. See generally 79 Fed. Reg. 22,254-59. 

But the case law relied upon by the agencies does not provide support for asserting 

jurisdiction over waters based on their relationship to non-navigable interstate waters.514

Indeed, minor, non-navigable waters that happen to cross state borders but are located far 

from TNWs should not be accorded the same treatment as TNWs. Therefore, it simply 

makes no sense, and there is no scientific or legal authority, to equate the two and allow 

for waters to be jurisdictional based on their relationship to interstate waters. (p. 100-101)

Agency Response: For the reasons articulated in the Technical Support 

Document, III, the agencies assert jurisdiction over interstate waters and waters the 

agencies have determined have a significant nexus to them.

 

514 In the proposed rule, the agencies cite to Illinois v. Milwaukee, 406 U.S. 91 (1972), and City of Milwaukee v. 

Illinois, 451 U.S. 304 (1984), and claim that in these cases, the Supreme Court “recognized the Federal interest in 

interstate water quality pollution” and “recognized that CWA jurisdiction extends to interstate waters without regard 

to navigability.” 79 Fed. Reg. at 22,256. The agencies’ argument is essentially that since the CWA replaced federal 

common law nuisance with regard to interstate water pollution, and since federal common law nuisance applied to 

both navigable and non-navigable waters, the CWA jurisdiction must extend to both navigable and non-navigable 

interstate waters. The Supreme Court, however, cautioned in City of Milwaukee that this sort of analysis is flawed: 

“The appropriate analysis in determining if federal statutory law governs a question previously the subject of federal 

common law is not the same as that employed in deciding if federal law pre-empts state law.” City of Milwaukee,

451 U.S. at 316. The Court further explained, “it is for Congress, not federal courts, to articulate appropriate 

standards to be applied as a matter of federal law.” Id. at 317. Thus, to discern whether federal law governing 

interstate water pollution applies to non-navigable waters, one must look to Congress and the language of the CWA.
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Woodlands Development Company (Doc. #12259)

10.327 The proposed rule reaches too broadly and exceeds the reach of the Commerce Clause of 

the U.S. Constitution. The current regulation defining "Waters of the United States" 

clearly recognizes the Commerce Clause in defining the reach of the federal authority 33 

C.F.R 328. 3(a). The proposed definition divorces itself from any basis in the Commerce 

Clause. As such the proposed rule, if adopted, would be arbitrary and capricious and not 

otherwise in accordance with law pursuant to the Administrative Procedures Act. Simply 

put, the proposed rule exceeds the authority given the United States and is not a reasoned 

interpretation of the CWA. (p. 1)

Agency Response: The final rule is consistent with the statute, the Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A and C. 

Montana Wool Growers Association (Doc. #5843.1)

The Agencies derive their authority under the CWA from the Commerce Clause. The 

Commerce Clause gives Congress authority "to regulate commerce ... among the several 

states, and with the Indian tribes." U.S. Const. art. I,§ 8, cl. 3. In the "interstate waters" 

section of the Preamble, the Agencies assert that "Congress clearly intended to subject 

interstate waters to CWA jurisdiction without imposing a requirement that they be water 

that is navigable for purposes of Federal regulation under the Commerce Clause 

themselves or be connected to water that is navigable for purposes of Federal regulation 

under the Commerce Clause." 79 Fed. Reg. 222188, 22200 (Apr. 21, 2014). The 

statement suggests the Agencies misunderstand their authority under the CWA; it implies 

Congress could grant more authority to the Agencies under the CWA than the Commerce 

Clause allows. Ironically, the Agencies thoroughly examine their authority to regulate 

navigable waters pursuant to the Commerce Clause under the previous section of the 

Preamble ("traditional navigable waters"), but neglect the constitutional restraints under 

the remaining sections of the Proposed Rule. Id. 

The Agencies imply their authority under the CWA works backward (i.e. if the Agencies 

have jurisdiction over a navigable water pursuant to the Commerce Clause, they also 

have authority over any waters that feed, or lands that feed waters, into the navigable 

water, or waters that otherwise have a significant nexus to the navigable water). Under 

the Proposed Rule, waters have a significant nexus if they, "either alone or in 

combination with other similarly situated waters in the region ... significantly affect the 

chemical, physical, or biological integrity" of an (a)(1) through (a)(3) water. According to 

the Agencies, however, whether a navigable water is suitable for interstate commerce is 

irrelevant in deciding if an effect is significant. Instead, the standard is that the effect 

(presumably on the chemical, physical, and biological integrity of the navigable water) be 

"more than speculative or insubstantial." This does not meet the standard set forth in 

United States v. Darby that Congress may only regulate intrastate activity where the 

activity has a "substantial effect" on interstate commerce. 312 U.S. 100, 119-20 (1941). 

(p. 3)

Agency Response: The final rule is consistent with the statute, the Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A and C., III.
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286

Ducks Unlimited (Doc. #11014)

10.328 The touchstone for the final “Waters of the U.S.” rule and future administration of 

jurisdiction must be the primary purpose of the Clean Water Act – “to restore and 

maintain the chemical, physical, and biological integrity of the Nation’s waters.”

The “legal analysis” contained within Appendix B of the proposed rule, as well as 

references throughout the document, cite and highlight the primary purpose of the Act. 

Needless to say, it is critically important to the issue of assessing jurisdictional limits to 

keep in mind the purposes of the Act and the intent of Congress. The overarching intent 

of the Act, as expressly articulated by Congress, was “to establish a comprehensive longrange policy for the elimination of water pollution.” The Act’s well-known primary 

purpose, cited above, underscores their intention. In addition, Congress directed the 

agencies to “develop comprehensive programs for preventing, reducing, or eliminating 

the pollution of the navigable waters and ground waters and improving the sanitary 

condition of surface and underground waters.” 

The legislative history of the Act makes clear that the 1972 Act was intended to curb and 

eliminate pollution of the Nation’s waters. Congress also clearly understood that 

achieving their objective would require broadly protecting the inter-connected waters of 

the U.S., including its wetland resources. This goal has been shared by the states, who 

cooperatively administer the Act. In contexts as recent as comments to the 2003 Advance 

Notice of Proposed Rulemaking and an amicus brief from states’ attorneys general and 

the District of Columbia in the Rapanos /Carabell case, at least 42 states expressed 

support for broad, federal jurisdiction of wetlands and other waters under provisions of 

the Clean Water Act. 

Thus, while a new rule is clearly necessary to appropriately interpret the findings of the 

Supreme Court and formally incorporate them into the regulations that are used to 

administer the Act, it is important to promulgate the new rule with the purpose of the Act 

as expressed by Congress at the forefront - “to restore and maintain the chemical, 

physical, and biological integrity of the Nation’s waters.” We believe that Justice 

Kennedy’s language in his Rapanos opinion provides a strong legal foundation for doing 

that and, in essence, includes a mandate to develop the new rule based on the related 

science. We recognize and accept that Justice Kennedy’s language imposes limits that 

will have the effect of limiting jurisdiction of “waters of the U.S.” under the new final 

rule to fewer waters than are jurisdictional under the existing rule. However, we believe, 

and will attempt to demonstrate through the synthesis of existing and emerging science, 

that protection by rule of some additional subcategories of “other waters” is consistent 

with the science and with the Supreme Court’s rulings, and would in turn help achieve 

other important goals and objectives of the rule, most notably including the nearly 

universal desire for clarity, certainty, and predictability on the part of the regulated 

community as well as the regulating agencies. (p. 4)

Agency Response: The agencies agree that the rule is consistent with the statute 

and Supreme Court decisions. Technical Support Document, I.A. and C. The rule 

provides that five subcategories of waters are “similarly situated” for purposes of a 

significant nexus analysis and commenters’ synthesis of existing and emerging 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

287

science about those subcategories provides additional support for the agencies’ 

conclusions. 

Protect Americans Now, Board of Directors (Doc. #12726)

10.329 The CWA was enacted pursuant to Congressional authority to regulate interstate 

commerce under Article I, section 8, clause 3 of the United States Constitution—i.e. the 

“Commerce Clause,” which states that Congress may “regulate Commerce with foreign 

Nations, and among the several States, and with Indian Tribes.” See Riverside Bayview 

Homes, 474 U.S. at 133 (“In adopting th[e] definition of navigable waters, Congress 

evidently intended to repudiate the limits that had been placed on federal regulation by 

earlier water pollution control statutes and to exercise its powers under the Commerce 

Clause.”). Accordingly, the scope of jurisdictional authority under the CWA is limited to 

the scope of federal authority under the Commerce Clause.

Supreme Court precedents concerning the scope of authority under the Commerce Clause 

read, collectively, to mean that “Congress may regulate ‘the channels of interstate 

commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that 

substantially affect interstate commerce.’” Nat’l Fed’n of Indep. Bus. v. Sebellius, 132 S. 

Ct. 2566, 2578 (2012) (citing United States v. Morrison, 529 U.S. 598, 609 (2000)). 

Historically, the power over the latter category has been read expansively and held to 

authorize “federal regulation of such seemingly local matters as a farmer’s decision to 

grow wheat for himself and his livestock, and a loan shark’s extortionate collections from 

a neighborhood butcher shop.” Id. at 2578–79 (citing Wickard v. Filburn, 317 U.S. 111 

(1942); Perez v. United States, 402 U.S. 146 (1971)).

It does remain, however, that to regulate local, intrastate and isolated activities (or 

waters) the activity (or waters) must have a “substantial effect” on interstate commerce. 

See United States v. Darby, 312 U.S. 100, 119–20 (1941). Additionally, more recent 

examinations concerning the outer limits of Congress’s authority to regulate interstate 

commerce make clear that the authority is not unlimited. See Nat’l Fed’n of Indep. Bus., 

132 S. Ct. at 2589 (citing Maryland v. Wirtz, 392 U.S. 183, 196 (1968); Goudy-Bachman 

v. U.S. Dept. of Health and Human Services, 811 F.Supp.2d 1086, 1105 (M.D. Penn. 

2011) (the Supreme Court’s recent opinions “caution that ‘the scope of interstate 

commerce power must be considered in the light of our dual system of government and 

may not be extended so as to embrace effects upon interstate commerce so indirect and so 

remote that to embrace them, in view of our complex society, would effectually obliterate 

the distinction between what is national and what is local and create a completely 

centralized government.’”) (internal citations omitted). Finally, the Supreme Court’s 

analysis in SWANCC and Rapanos—the most recent opinions analyzing the meaning of 

the “waters of the United States”—stand out for their resolve to reign in federal authority 

and curtail the continued expansion of federal jurisdiction under the CWA. See 

SWANCC, 531 U.S. at 171–72 (declining the expansion of the Corps’ authority under § 

404(a)’s definition of “navigable waters” to “isolated ponds, some only seasonal, [and] 

wholly located within two Illinois counties”); Rapanos, 547 U.S. at 757, 787 (where both 

the plurality opinion and Justice Kennedy’s concurring opinion make clear that the 

Corps’ determination of jurisdiction over certain wetlands was vacated and remanded 

with instruction for more restrictive interpretations).
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288

In spite of the continuing trend toward a more limited view of the Commerce Clause and 

two consecutive repudiations of their expanded interpretations of authority, the agencies 

now come forward with arguably their most expansive definition of the “waters of the 

United States.” For example, the Proposed Rule now defines “tributary,” a category 

jurisdictional by rule, to mean anything with a bed, banks and ordinary high water mark 

that contributes flow either directly or through a series of other waters to a more 

traditional waters. See 79 Fed. Reg. 22,202 (“As the definition makes clear, the water 

may contribute flow directly or may contribute flow to another water or waters which 

eventually flow into an (a)(1) through (a)(4) water”)). The same is jurisdictional water 

regardless of whether it flows once a year or maintains a continuous surface connection, 

if only because it is presumed to have a significant nexus to the traditional “water.” 

Similarly, an isolated pond with no connection to traditional “waters” will automatically 

fall under the agencies’ jurisdiction, if only because it sits in the floodplain a tributary of 

a traditional “waters.” Again, the presumption is that it maintains a significant nexus, 

even if the nexus is not investigated, established and substantiated with documentation. 

(p. 8-10)

Agency Response: The rule is narrower in scope than the existing regulation, and 

is consistent with the statute, the caselaw, and the Constitution. Technical Support 

Document, I.A., B. and C. With this rule, the agencies interpret the scope of the 

“waters of the United States” for the CWA in light of the goals, objectives, and 

policies of the statute, the Supreme Court caselaw, the relevant and available 

science, and the agencies’ technical expertise and experience. Preamble, III and IV, 

Technical Support Document, II and VI.

Guardians of the Range (Doc. #14960)

10.330 The Corps and the EPA are incorrect in asserting that they have authority under the Clean 

Water Act to categorically regulate all interstate waters as though they were "traditional 

navigable waters," even when they are not. This is a misinterpretation by not recognizing 

that the CWA is NOT a congressional or general mandate to regulate all waters. Congress 

does not have such a power. CWA's legal traction is in its Congress' constitutional power 

to regulate interstate commerce. Refer to Rapanos and to SWANCC. The Supreme Court 

has limited that power to the regulation of channels of interstate commerce (such as 

navigable in- fact waters), things in interstate commerce (such as commodities that are 

purchased and sold), and activities that substantially affect interstate commerce. See 

United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 

(2000). It is abundantly clear that by definition, anything regulated under the CWA must 

have a substantial connection to interstate commerce. Tributaries: The proposed rule 

asserts that the Corps and EPA have jurisdiction to ALL tributaries. This is boundless in 

its arrogance and overreach. There is no hydrological connection that could be sustained 

with such an assertion. In Rapanos there was a opinion of the plurality as well as one by 

Justice Kennedy where this ALL concept was rejected . In the plurality opinion the court 

limited federal jurisdiction to a limited subset of nonnavigable tributaries and Justice 

Kennedy did not apply his "significant nexus"ntest to tributaries, ONLY to wetlands.

This rejection also was applied to drainage ditches and the like. (p. 2)

Agency Response: The final rule is consistent with the statute, the Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A and C.
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289

10.1.2.1 Legal Rationale for Jurisdiction Over Interstate Waters

Agency Summary Response:

The agencies’ rule makes no change to the interstate waters section of the existing regulations 

and the agencies will continue to assert jurisdiction over interstate waters, including interstate 

wetlands. The language of the CWA is clear that Congress intended the term “navigable waters” 

to include interstate waters, and the agencies’ interpretation, promulgated contemporaneously 

with the passage of the CWA, is consistent with the statute and legislative history. The Supreme 

Court’s decisions in SWANCC and Rapanos did not address the interstate waters provision of the 

existing regulation. Technical Support Document, IV.

Specific Comments

Coalition of Local Governments (Doc. #15516)

10.331 To the extent that the Supreme Court has recognized that EPA and the Corps can regulate 

some waters that would not be considered traditionally navigable, the Supreme Court has 

not stated what types of other waters this includes. The EPA and Corps attempt to rely on 

the two Supreme Court cases regarding the CWA’s jurisdiction over interstate waters as 

the basis for their conclusion that interstate waters need not be navigable. See 79 Fed. 

Reg. at 22256-22257. However, these two cases never addressed whether interstate 

waters must be navigable, but instead dealt with the elimination of common law nuisance 

claims with respect to interstate water pollution after the passage of the CWA. Id. The 

Supreme Court has interpreted “waters of the United States” to include only those 

wetlands that are adjacent and connected to traditional navigable waterways or that have 

a significant nexus to such waters that are navigable in fact. Riverside Bayview Homes, 

Inc., 474 U.S. at 135; Rapanos, 547 U.S. at 742, 759, 767, 779. Therefore, the Proposed 

Rule also conflicts with Supreme Court precedent and its authority under the CWA as it 

attempts to regulate jurisdiction over tributaries, adjacent wetlands and “other waters” 

that have a significant nexus to interstate waters that are not navigable in fact. See 79 

Fed. Reg. at 22200. (p. 7)

Agency Response: The rule does not conflict with Supreme Court precedent and 

the assertion of jurisdiction over interstate waters is consistent with the statute. 

Technical Support Document, IV.

Greater Houston Builders Association (Doc. #15465)

10.332 The proposed rule reaches too broadly and exceeds the reach of the Commerce Clause of 

the U.S. Constitution. The current regulation defining “Waters of the United States” 

clearly recognizes the Commerce Clause in defining the reach of the federal authority 33 

C.F.R. 328.3(a). The proposed definition divorces itself from any basis in the Commerce 

Clause. As such, the proposed rule, if adopted, would be arbitrary and capricious and not 

otherwise in accordance with law pursuant to the Administrative Procedures Act. Simply 

put, the proposed rule exceeds the authority given the United States and is not a reasoned 

interpretation of the CWA. (p. 2)
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290

Agency Response: The rule is consistent with the statute and the Constitution. 

Technical Support Document, I.A. and C.

Western Growers Association (Doc. #14130)

10.333 Beginning in 1995, the U.S. Supreme Court imposed more limits on the breadth of the 

Act and interpretation of “waters of the United States” both constitutionally and, more 

importantly, as a matter of statutory interpretation. In 1995, in United States v. Lopez, the 

Court invalidated federal legislation for the first time in almost 60 years on the grounds 

that Congress had exceeded its authority under the Interstate Commerce Clause.515

Following this decision, the U.S. Supreme Court in reviewing the Seventh Circuit’s 

decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 

Engineers (“SWANCC”),516 began to read statutory limitations into the scope of the Act’s 

“waters of the United States.” The SWANCC Court acknowledged the Riverside Bayview 

decision but emphasized that “[i]t was the significant nexus between wetlands and 

‘navigable waters’ that informed our reading of the CWA in Riverside Bayview 

Homes.”517 In addition, it gave new import to Congress’s decision to use the word 

“navigable” in the Clean Water Act:

“But it is one thing to give a word limited effect and quite another to give it no 

effect whatever. The term “navigable” has at least the import of showing us what

Congress had in mind as its authority for enacting the CWA: its traditional 

jurisdiction over waters that were or had been navigable in fact or which could 

reasonably be so made.”518

Western Growers agrees with and supports the Supreme Court’s line of jurisprudence that 

sets limits on the reach and scope of the Act. We acknowledge that the EPA’s and Army 

Corps’ proposed new “waters of the United States” strives to respond to the U.S. 

Supreme Court’s 2006 split decision in Rapanos v. United States. In that case, the 

Justices split three ways regarding the proper test to determine the limits of the Act and 

whether wetlands and tributaries should be considered “waters of the United States.” (p. 3-4)

Agency Response: The rule is consistent with the statute and the Constitution. 

Technical Support Document, I.A. and C.

Jensen Livestock and Land LLC (Doc. #15540)

10.334 As it stands, it is extremely unclear how far the agencies intend federal jurisdiction to 

extend and if taken to the maximum extent possible the proposed rule wraps in virtually 

every feature across the nation, which contravenes not only the CWA itself but also the 

Commerce Clause of the U.S. Constitution. (p.15)

Agency Response: The rule is consistent with the statute and the Constitution. 

Technical Support Document, I.A. and C. The rule establishes clear limits on the 

scope of federal jurisdiction. Preamble, IV.

 

515 514 U.S. 549, 557 (1995).

516 531 U.S. 159 (2001).

517 Id. At 166-167.

518 Id. At 172.
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291

Hackensack Riverkeeper et al. (Doc. #15360)

10.335 Congress meant Waters of the United States to include all of our country’s waters that 

Congress’ power over commerce could reach; Congress made the definition simple 

because it intended to be clear and not because it intended to be cryptic. For example, the 

House Public Works Committee wrote, “The Committee fully intends that the term 

navigable waters be given the broadest possible constitutional interpretation 

unencumbered by agency determinations which have been made or may be made for 

administrative purposes.” H.R. Rep. No. 92-91 at 131 (1972), 1972 Legislative History 

at 818. Article 1, section 8 of the United State Constitution lists Congress’ enumerated 

powers. Congress’ most potent power is “To regulate commerce with foreign nations and 

among the several states and with the Indian tribes.” This, if Congress intended to have 

its broadest possible interpretation, Waters of the United States must include all waters 

which are currently used, were used in the past, or may be susceptible to use in interstate 

or foreign commerce , or with Indian Tribes. (p. 6)

Agency Response: The agencies agree that the rule is consistent with the statute 

and the Constitution. Technical Support Document, I.A. and C. In SWANCC, the 

Supreme Court held that the word “navigable” means that Congress was utilizing 

its authority over traditional navigable waters.

10.1.2.2 Legal Rationale for Protecting Waters with a SN to Interstate Waters

Agency Summary Response

Since the Supreme Court’s decision in SWANCC, and Justice Kennedy's opinion in Rapanos 

identified a significant nexus to the waters clearly covered by the CWA – in those cases, the 

traditional navigable waters – as the basis for CWA jurisdiction, the agencies promulgated a rule 

that similarly protects the interstate waters that the agencies concluded were similarly clearly 

covered by the CWA. Preamble, IV and Technical Support Document, IV.

Specific Comments

Attorney General of Texas (Doc. #5143.2)

10.336 Despite the Rapanos plurality’s clear warning that expansive interpretations of Clean 

Water Act jurisdiction “stretch[] the outer limits of Congress’s commerce power,” this 

proposed rulemaking assumes—incorrectly-- that its broad view of the Clean Water Act 

raises no constitutional concerns. Id. at 724. As we stated in our letter to the EPA 

regarding its 2011 Draft Guidance, under the system of dual sovereignty established by 

the Constitution, the federal government lacks a general police power and may only 

exercise the powers expressly granted to it by the Constitution. See United States v. 

Lopez, 514 U.S. 549, 566 (1995); U.S. Const., amend. X.

The Clean Water Act was enacted pursuant to Congress’s authority to regulate interstate 

commerce under Article 1, section 8 of the Constitution. As a result, regulatory agencies 

violate the Constitution when their enforcement of the Act extends beyond the regulation 

of interstate commerce. Yet, it is by no means clear that all waters with a significant 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

292

nexus to navigable waters also have a substantial effect on interstate commerce. See 

United States v Darby, 312 U.S. 100, 119-20 (1941) (holding that Congress may regulate 

intrastate activity only where the activity has a ‘substantial effect” on interstate 

commerce). In other words, there are likely waters—not to mention dry ditches—that the 

proposed rulemaking purports to subject to Clean Water Act jurisdiction, but that, under a 

proper commerce clause analysis, would not be subject to federal authority. Regulating 

these waters falls outside the scope of Congress’s—and therefore federal agencies’—

constitutional authority. The proposed rulemaking, however, completely fails to take into 

account the Constitution’s limits on federal regulatory authority. A primary inquiry into 

the constitutional basis for the exercise of federal jurisdiction should be resolved before 

the secondary question of statutory authority under the Clean Water Act is reached.

The federal government asks for our trust that this proposed rule will provide 

predictability, clarity, and consistency in the way it asserts its jurisdiction. The federal 

government asserts, further, that this proposed rulemaking will in no way broaden its 

jurisdiction or change its Clean Water Act practices. Nothing could be further from the 

truth. The rulemaking relies chiefly on the last two U.S. Supreme Court cases—Rapanos

and SWANCC’—that confronted the meaning of ‘waters of the United States.” Lost in the 

agencies’ analysis, however, is that in both cases, the Supreme Court attempted to reign 

in the federal government’s perceived jurisdiction under the Act. (p. 6-7). 

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Wyoming Wool Growers Association (Doc. #15037)

10.337 The understanding of the Commerce Clause of the U.S. Constitution as outlined in the 

proposed rule is convoluted and essentially obliterates the distinction between “national” 

and “local”. The assertion that “Congress clearly intended to subject interstate waters to 

CWA jurisdiction without imposing a requirement that they be water that is navigable for 

purposes of Federal regulation under the Commerce Clause themselves or be connected 

to water that is navigable for purposes of Federal regulation under the Commerce Clause” 

79 Fed. Reg. at 222188, 22200 (April 21, 2014) reveals a lack of understanding of the 

Agencies’ authority under the CWA and implies that Congress could grant more 

authority to the Agencies under the CWA than the Constitution allows. (p. 1-2)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

10.1.3. Territorial Seas

The agencies did not identify substantive comments that addressed this topic.

10.1.4. Impoundments

The agencies did not identify substantive comments that addressed this topic.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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10.2. ADJACENT WATERS

Agency Summary Response

Based on a review of the scientific literature and the agencies’ expertise and experience, the 

agencies determined that adjacent waters as defined in the rule are integrally linked to the 

chemical, physical, or biological functions of waters to which they are adjacent and downstream 

to the traditional navigable waters, interstate waters or the territorial seas. Therefore, the 

agencies determined that the waters defined as adjacent have a significant nexus with traditional 

navigable waters, interstate waters or the territorial seas and are thus “waters of the United 

States.” Adjacent waters, including adjacent wetlands, alone or in combination with other 

adjacent waters in the watershed, have a significant impact on the chemical, physical, or 

biological integrity of traditional navigable waters, interstate waters, and the territorial seas. In 

addition, waters adjacent to tributaries serve many important functions that directly influence the 

integrity of downstream waters including traditional navigable waters, interstate waters, and the 

territorial seas. Adjacent waters store water, which can reduce flooding of downstream waters, 

and the loss of adjacent waters has been shown, in some circumstances, to increase downstream 

flooding. Adjacent waters maintain water quality and quantity, trap sediments, store and modify 

potential pollutants, and provide habitat for plants and animals, thereby sustaining the biological 

productivity of downstream rivers, lakes and estuaries, which may be traditional navigable 

waters, interstate waters, or the territorial seas. The rule is consistent with the statute, caselaw, 

and Constitution. Preamble IV, Technical Support Document,I, II and VI, Adjacent Waters 

Compendium.

Specific Comments

Offices of the Attorney Generals of Oklahoma, West Virginia and Nebraska (Doc. #7988)

10.338 The Proposed Rule declares that all geographically-related "adjacent" waters are always 

and per se covered by the CWA. Id. § 230.3(s)(6). The Proposed Rule defines "adjacent" 

waters as-among other features-those waters "within the riparian area or floodplain of' 

core waters, impoundments, or tributaries. Id. § 230.3(u)(l)-(2). "Riparian area" and 

"floodplain" are broad, poorly defined concepts that sweep up large portions of water, 

wetlands, and lands usually dry for most of the year. Id. § 230.3(u)(3)-(4). (p. 5)

Agency Response: In response to comments, the rule provides specificity by 

utilizing the 100 year floodplain for determining “adjacent waters” and does not 

define “floodplain” or “riparian area.” Preamble, VI.

Florida Department of Agriculture and Consumer Services (Doc. #10260)

10.339 The current regulations also define the following terms: 

Wetlands – those areas that are inundated or saturated by surface or ground water 

at a frequency and duration sufficient to support, and that under normal 

circumstances do support, a prevalence of vegetation typically adapted for life in 

saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and 

similar areas. 33 C.F.R §328.3(b). 
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Adjacent – bordering, contiguous, or neighboring. Wetlands separated from other 

waters of the United States by man-made dikes or barriers, natural river berms, 

beach dunes and the like are “adjacent wetlands.” 33 C.F.R §328.3(c). 

At issue in the Rapanos case was the inclusion of wetlands adjacent to or near ditches and 

manmade drains that eventually, through assorted other ditches, drains, creeks, and 

surface connections, link to waters susceptible to use in interstate commerce per the 

definition of "waters of the United States." 33 C.F.R. § 328.3(a)(1), (5), (7) (2005). The 

Corps viewed these wetlands "adjacent" to tributaries as within its jurisdiction if they 

carried a perceptible ordinary high water mark (OHWM). 33 C.F.R. § 328.4(c); Final 

Notice of Issuance and Modification of Nationwide Permits, 65 Fed. Reg. 12,8 18, 

12,823 (March 9, 2000). The Corps also viewed the upstream limit of "waters of the 

U.S." to be where the OHWM is no longer perceptible. Final Rule for Regulatory 

Programs of the Corps of Engineers, 51 Fed. Reg. 41,206, 41,217(November 13, 1986) 

(to be codified at 33 C.F.R. pts. 320, 321 , 322, 323, 324, 325, 326, 327, 328, 329, 330). 

The current regulations also include a definition of OHWM at 33 C.F.R. § 328.3( e ). 

Under the Corps's regulations, wetlands are adjacent to tributaries, and thus covered by 

the Act, even if they are "separated from other waters of the United States by man-made 

dikes or barriers, natural river berms, beach dunes and the like." 33 C.F.R. § 328.3(c). (p.

63-64)

Agency Response: The existing regulations speak for themselves.

10.340 Only a wetland with a continuous surface connection to bodies that are "waters of the 

U.S." in their own right, such that there is no clear demarcation between "waters" and 

wetland, is itself a part of those "waters" and therefore adjacent to such "waters" and 

covered by the Act. Id. at 742. The inclusion of wetlands abutting such a "hydrographic 

feature" is legally pe1missible due primarily to the difficultly of drawing any clear 

boundary on the continuum between land and water. Id. at 724-725; Riverside Bayview, 

474 U.S. at 132. Wetlands with only an intermittent, physically remote hydrologic 

connection to "waters of the U.S." do not implicate the boundary drawing problem and 

lack the necessary connection to covered waters that the Court described as a "significant 

nexus." SWANCC, 531 U.S. at 167. In expanding its definition of "waters of the U.S." to 

include ephemeral streams, wet meadows, storm sewers and culverts, directional sheet 

flow during storm events, drain tiles, man-made drainage ditches, and dry arroyos in the 

middle of the desert, the Rapanos plurality held that the Corps had stretched the term 

beyond the plain language of the statute to an impermissible "Land Is Waters" approach. 

Rapanos, 547 U.S. at 734. (p. 65-66)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.

West Virginia Department of Environmental Protection (Doc. # 15415)

10.341 Another category of waters the proposed regulation establishes as per se jurisdictional is 

those waters that are "adjacent" to waters that are deemed jurisdictional under any of the 

other five categories of per se jurisdictional waters. The WVDEP's first objection to the 

proposed per se jurisdiction based on adjacency is in the category of those insignificant, 

isolated waters that qualify as jurisdictional only by virtue of the fact that they straddle a 

border between states. Any waters that are adjacent to such interstate waters that cannot 
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otherwise qualify as per se jurisdictional (i.e., traditional navigable waters, a direct 

tributary of traditional navigable waters, impoundments of such or territorial seas) cannot 

meet the test of either group of Justices under Rapanos and should not be considered 

jurisdictional on either a case-by-case or a per se basis. 

The WVDEP also objects to the proposal to confer per se jurisdiction over waters that are 

"adjacent" to the sub-class of "tributaries" that consists of ditches and ephemeral drains. 

As discussed above, this sub-class of tributaries cannot meet the test of either group of 

Justices under Rapanos. Accordingly, the proposed regulation's classification of waters 

adjacent to this sub-class of tributaries as jurisdictional cannot pass muster under 

Rapanos, either. Such waters cannot be considered jurisdictional even on a case-by-case 

basis, much less on a per se basis. 

Another problem with the proposed regulation's per se jurisdiction over adjacent waters is 

how "adjacent" is defined. The EPA's proposed definition of what is "adjacent" is 

sweepingly overbroad. It includes bordering, contiguous, and "neighboring" waters. 

"Neighboring" waters are newly defined to include all waters related to one of the first 

five categories of per se jurisdictional waters by virtue of: (1) being located in the 

riparian area of such waters; (2) being located in the floodplain of such waters; (3) having 

a shallow subsurface hydrological connection to such waters; or (4) having a confined 

surface hydrological connection to such waters. With the "neighboring" definition, the 

EPA completely parts company with both of the majority opinions in Rapanos and charts 

its own course. Each of the four elements of this definition would establish per se CWA 

jurisdiction notwithstanding the lack of significance of the "neighboring" feature to any 

other jurisdictional water and the absence of any continuous surface connection with any 

other jurisdictional water. 

The "floodplain" element of the "neighboring" definition, for example, has the potential 

to extend per se CWA jurisdiction to many areas that neither of the majority opinions in 

Rapanos would support. Consider that, in places, the geographic feature comprising the 

floodplain of the Ohio River at Huntington, West Virginia, is nearly two miles wide on 

just one side of the river. Any accumulation of water, damp spot or pothole filled with 

rain across this expansive floodplain is established as a per se jurisdictional water by this 

definition, regardless of its lack of impact on the river or any tributary thereto. Thus, the 

regulation can be interpreted to require at least a jurisdictional determination, if not a 

CWA Section 404 permit, for nearly all construction in that floodplain because of the

likelihood that it will encounter "jurisdictional waters." This federal overreach poses a 

very real problem for West Virginia, because West Virginia suffers a dearth of flat land 

outside of its "floodplains." As a result, most of our larger communities are built in 

floodplains. Although "floodplain" is also a defined term, the definition does nothing to 

limit its reach in order to avoid this problem. 

Another problem with floodplain-based adjacency jurisdiction is that the regulation 

applies it broadly to hydrologic features that generally do not have a floodplain, e.g., 

impoundments and the higher gradient upland tributaries that are found in the 

Appalachian region. This brings us to another problem with the proposed regulation that 

is peculiar to West Virginia and the Appalachian region: while our larger communities 

tend to be located in floodplains, many of our smaller communities are strung along 

tributaries. As one proceeds upstream in such areas, the area that might be considered a 
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296

"floodplain" narrows to the point that there is no real geographic feature that can be 

considered a floodplain. The portions of our smaller communities that are not in a 

"floodplain" are likely in what would be considered a "riparian area" under the proposed 

regulation. As with floodplain-based jurisdiction, any of OW citizens who have built 

homes or businesses in such riparian areas may be considered to be in violation of the 

permit requirements of Section 404 of the CWA. Those who wish to build in such areas 

will do so at their peril, if they do not first obtain a jurisdictional determination and a 

Section 404 permit. This puts a severe burden on our citizens, who want or need to use 

what little flat land there is available in parts of West Virginia. 

The shallow subsurface connection element of the "neighboring" waters definition also 

has particularly far reaching implications in the Appalachian region. The topography in 

the region consists of one ridgeline after another, each with steep mountainsides, which 

are separated by narrow hollows in which small streams flow. The local hydrology in 

nearly every hollow in Appalachia is characterized by the presence of a shallow stressrelief fracture system. See, Wyrick, G., and J. Borchers, 1981, Hydrologic Effects of 

Stress-Relief Fracturing in an Appalachian Valley, US Geological Survey Water Supply 

Paper 21 77, 5 1 p. Laterally along a stream, this subsurface fracture system extends far 

up steep mountain sides. Longitudinally with the stream, it can be expected to extend 

virtually to the ridge top. Through the stress-relief fracture system, ground and surface 

water located high on steep mountainsides is connected to intermittent and perennial 

streams in the bottom below. Through the "shallow subsurface connection" provision, the 

proposed definition would include in its sweep nearly all damp spots on the ground in the 

Appalachian region, again, without regard to their significance or surface connection to 

other waters. The WVDEP believes that the use of groundwater flow regimes in 

determining the jurisdiction of the CWA could reach a wide variety of upland damp 

features that no version of the Rapanos majority opinions would authorize. Further, the 

WVDEP believes, as a general matter, that "neighboring" waters must be examined on a 

case-by-case basis to assure that they bear some level of significance to traditional 

navigable waters and that the federal government's "land is waters" approach that was 

specifically condemned by the Rapanos plurality is not repeated. 

In addition to the elements of the definition of "neighboring," the definition of "adjacent" 

deems waters (including wetlands) that are separated from other waters by "man-made 

dikes or barriers, natural river berms, beach dunes and the like" to be "adjacent" and, 

thereby, per se jurisdictional waters. 79 Fed. Reg. 22,263 (April 21, 2014). Like the 

elements of the "neighboring" definition, this is done without regard to any nexus 

between such waters and the more permanent waters from which they are separated. 

Thus, this element of the "adjacent" definition fails Justice Kennedy's significant nexus 

test. Of course, without any connection to relatively permanent waters, neither can these 

separated waters qualify as jurisdictional under the Rapanos plurality's opinion.519 (p. 9-

11)

 

519 The jurisdiction the federal government would claim through the combination of the proposed regulation's 

designation of ditches as jurisdictional waters and its further assertion of jurisdiction over wetlands separated from 

other waters by man-made barriers is remarkably similar to the factual scenario in which it claimed jurisdiction in 

Carabell v. United States Army Corps of Engineers, the companion case that the Supreme Court considered in its 
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Agency Response: For the reasons articulated in Section IV of the Technical 

Support Document, interstate waters, including interstate wetlands remain “waters 

of the United States” in the rule. The rule excludes certain ditches and ephemeral 

drainages from “waters of the United States,” and waters would not be 

jurisdictional due to adjacency to any such excluded waters. Preamble, VI. In 

response to comments, the agencies have changed the definition of neighboring. 

Preamble, VI. The agencies determined that the waters defined as adjacent, 

including those separated by a berm, have a significant nexus with traditional 

navigable waters, interstate waters or the territorial seas and are thus “waters of the 

United States.” Preamble III and IV, Technical Support Document, II and VI.

South Carolina Department of Health and Environmental Control (Doc. #16491)

10.342 The new definitions of neighboring, riparian area, and floodplain expand jurisdiction 

beyond current practices. "Adjacent" is defined in the Proposed Rule as meaning, ".., -

bordering contiguous or neighboring. Waters, including wetlands, separated from other 

waters of the United States by man-made dikes or barriers, natural river berms, beach 

dunes and the like are "adjacent waters."520 This definition is essentially unchanged from 

the existing regulation with the exception that the new definition refers to "adjacent 

waters" as opposed to "adjacent wetlands." The more significant change to the definition 

of adjacency comes as a result of the newly proposed definitions for "neighboring," 

"riparian area" and "floodplain" which further define adjacency. As a result of these new 

definitions, all neighboring, riparian and floodplain waters would now be considered to 

be adjacent and, thus, per se jurisdictional. To further highlight the fact that all adjacent 

waters are considered to be per se jurisdictional in the Proposed Rule, the Agencies have 

deleted the parenthetical statement in the existing regulation that excludes the adjacency 

of a wetland to another jurisdictional wetland as a means for determining jurisdiction.521

This again represents a significant departure from current practices. In accordance with 

the post- Rapanos guidance, not all adjacent waters are per se jurisdictional. The postRapanos guidance declares only those wetlands adjacent to traditional navigable waters 

to be automatically jurisdictional. Wetlands adjacent to non-navigable tributaries that are 

not relatively permanent and wetlands adjacent to, but not directly abutting, relatively 

permanent non-navigable tributaries require a significant nexus analysis under the 

guidance.522

As support for this new, and expanded, approach, the Agencies again refer to the fact that 

their review of the scientific evidence has led them to conclude that, "all waters that meet 

the proposed definition of "adjacent" are similarly situated for purposes of analyzing 

whether they, in the majority of cases, have a significant nexus to an (a)(1) through (a)(3) 

 

Rapanos decision. Having met with the Court's disapproval in Carabell, the federal government appears to be poised 

to attempt to write its result out of existence through this proposed regulation. 

520 79 Fed. Reg. at 22269.

521 40 C.F.R. Section 230.3(s)(7). (2014).

522 U.S. Environmental Protection Agency, Memorandum on Clean Water Act Jurisdiction Following the US. 

Supreme Court's Decision in Rapanos v United States & Carabell v. United States (Dec.2, 2008),

http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA_Jurisdiction_Following_Rapa

nos120208.pdf
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water."523 Further, as the Agencies note in the Proposed Rule, based on their review of 

the scientific literature, "...we have concluded that these waters, when bordering, 

contiguous or located in the floodplain or riparian area, or when otherwise meeting the 

definition of "adjacent," provide many similar functions that significantly affect the 

chemical, physical, or biological integrity of traditional navigable waters, interstate 

waters, or the territorial seas."524

SCDHEC is concerned that this expands the scope of CWA jurisdiction and is clearly an 

expansion of jurisdiction when compared to current practices in accordance with the postRapanos guidance. (p. 3-4)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the caselaw. Technical Support Document, I.B. and C.

New Mexico Environment Department (Doc. #16552)

10.343 The Agencies propose to expand and redefine "adjacent wetlands" to become "adjacent 

waters." 79 Fed. Reg. 22,180, 22,206. "Adjacent waters" is then defined as "[a]ll waters, 

including wetlands, adjacent to" jurisdictional waters. "Proposed 'Definition of 'Waters of 

the United States' Under the Clean Water Act' 40 CFR 230.3," (s)(5). 12 "Adjacent" is 

defined as "bordering, contiguous or neighboring. Waters, including wetlands, separated 

from other waters of the United States by man-made dikes or barriers, natural river 

berms, beach dunes and the like are 'adjacent waters." Id., (u)(1) (emphasis added). 

"Neighboring" is defined "for purposes of the term 'adjacent' [to include] waters located 

within the riparian area or floodplain of a [jurisdictional water] or waters with a shallow 

subsurface hydrologic connection or confined surface hydrologic connection to such a 

jurisdictional water." Id., (u)(2). Subsequently, both "riparian area" and "floodplain" are 

defined but "shallow subsurface" waters and "confined surface" connections are not. Id., 

(u)(3)-(4). 

The Department, combining these various terms, finds that the proposed redefinition of 

"adjacent wetlands" will expand federal jurisdiction to include the following:

1) All waters that are adjacent, i.e., neighboring, contiguous, or bordering a 

jurisdictional water; 

2) All upstream tributaries and waters that are connected by an observable high 

water mark; 

3) All waters that are in the floodplain of the existing or proposed jurisdictional 

water; 

4) All waters that are in the riparian area of the existing or proposed jurisdictional 

water (including isolated tributaries and waters); 

5) All waters that have a shallow hydrologic connection to a jurisdictional water; 

and/or 

 

523 79 Fed. Reg. at 22260.

524 Id.
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6) All waters that have a confined surface hydrologic connection to jurisdictional 

water.525

The Department is gravely concerned that this series of definitions, expanding at each 

subsequent level, exceeds the scope of "adjacent" jurisdictional determinations as 

contemplated by Congress in the enactment of the CWA and is contrary to both the 

plurality and concurring opinions in Rapanos. In the plurality opinion, the justices stated 

that for adjacent wetlands to be jurisdictional, they must first be "relatively permanent, 

standing or flowing bodies of water," 547 U.S. at 732-33, and secondly they must have a 

continuous surface connection to the bodies that are "waters of the United States" in their 

own right, so that there is no clear demarcation between the waters and adjacent 

wetlands. Id. at 742. In his concurrence, Kennedy stated that any wetland that is adjacent 

to a navigable water is jurisdictional since there is a reasonable inference of ecologic 

interconnection. Id. at 780. However, if "isolated" from the jurisdictional water, or if 

adjacent to a "non-navigable tributary," the water must meet the "significant nexus" test, 

i.e., the water or area must exert a substantial or significant impact on the ultimate 

jurisdictional water. Id. at 782. Currently, the determination of "adjacency" of waters is 

performed through a case-by-case review of the subject area526, whereas the proposed 

rule would make all adjacent waters jurisdictional by rule. See generally 79 Fed. Reg. 

22,180,22,195. 

The Agencies' expansion and redefinition of "adjacent wetlands" will inevitably capture 

areas and waters that are currently and traditionally regulated by the State, e.g., ground 

water discharges and permits, irrigation waters, ditches, acequias, etc. Secondly, the 

inclusion of "adjacent waters" via "shallow subsurface hydrologic connections" will 

interfere with, cloud, or legally impair established ground water pumping rights close to 

jurisdictional waters, contrary to the CWA's preamble and congressional intent in Section 

1251 (b) of Title 33 of the United States Code, noted above. 33 U.S.C. §1251(b) (2006). 

The Department acknowledges that some "adjacent waters" have a physical, chemical, or 

biological impact on federal jurisdictional waters, however, this is not always true and 

can vary from one region, stream, riparian area, floodplain, or watershed. See generally 

"Science Advisory Board (SAB) Consideration of the Adequacy of the Scientific and 

Technical Basis of the EPA's Proposed Rule titled "Definition of Waters of the United 

States under the Clean Water Act" (Sept. 30, 2014) (SAB recommends that the EPA 

should consider the relationship between waters in "gradients" not as a "binary" 

relationship); see also 79 Fed. Reg. 22,180, 22,193. Here, the Agencies are proposing that 

if waters are "adjacent" to existing or newly created federal jurisdictional water, it will 

necessarily and implicitly have a substantial nexus irrespective of its permanency or 

actual surface or hydrological connection to the adjacent jurisdictional water. Id. at 

 

525 It is important to note that "adjacent waters" can apply equally to waters adjacent to the traditional CWA 

jurisdictions (navigable waters, interstate waters, or territorial seas) and to the newly expanded definitions of 

"tributaries." See 79 Fed. Reg. 22,180, 22,206-07. 

526 See EPA, Memorandum on Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in 

Rapanos v. United States & Carabell v. United States (Dec. 2, 2008). Available at

http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA_Jurisdiction_FollowingRapan

os120208.pdf. 
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22,206-07. This interpretation simply fails to consider the holding of the U.S. Supreme 

Court in Rapanos, and in fact is opposite to the findings of both the plurality and Justice 

Kennedy. See Rapanos, 547 U.S. at 780. 

Establishing jurisdiction over "neighboring" waters by rule in either the "riparian area" or 

"floodplain" is problematic. "Riparian area" is defined as "an area bordering a water 

where surface or subsurface hydrology directly influence the ecological processes and 

plant and animal community structure in that area." 79 Fed. Reg. 22,180, 22,207. This 

definition is overly expansive as compared to current practice and will undoubtedly 

include lands and waters that have little or no nexus to the jurisdictional water. The 

Agencies are supplanting federal legal jurisdictional authority with scientific reasoning. 

This method of jurisdictional application simply by location is contrary to the limitations 

placed on the analysis of a "significant nexus" by Justice Kennedy and is too speculative 

to establish the necessary jurisdictional basis. In fact, the definition itself seems to require 

a factual analysis to determine if the "surface or subsurface hydrology" of the "adjacent" 

or "neighboring" water will have an impact to ecological processes and [the] plant and 

animal community structure in that area." Id. at 22,207. Such a wide- reaching 

presumption that any adjacent water in the floodplain or riparian area has the requisite 

impact on "ecological processes" is contrary to and goes beyond any rational reading of 

the Court's past holdings. See generally Rapanos, 547 U.S. at 780. 

The Agencies define "floodplain" as "an area bordering inland or coastal waters that was 

formed by sediment deposition from such water under present climatic conditions and is 

inundated during periods of moderate to high water flows." 79 Fed. Reg. 22,180, 22,207. 

This definition differs significantly from other statutory definitions and may be overly 

expansive. See e.g., 44 C.F.R. § 9.4 (Base Floodplain means the 100-year floodplain (one 

percent chance floodplain)); see also 42 U.S.C. § 4004(a)(l)-(2) (2011) (National Flood 

Insurance definitions of 100-year and 500-year floodplain). The Agencies fail to clarify 

what is intended by inclusion of the words "under present climatic conditions." Simply 

put, the addition and use of "riparian area" and "floodplain" to establish federal 

jurisdiction only complicates the present case-by-case factual review and analysis 

determination. The Agencies should reevaluate and consult with the State on this section 

of the proposed rule. 

Finally, the Agencies' use of the term "shallow ground water" in establishing jurisdiction 

over "adjacent waters" and lands is problematic for two reasons. First, the definition 

gives the perception that ground water in close proximity to a jurisdictional water such as 

a ditch, tributary, acequias, or wetland, could be considered jurisdictional water and 

subject to regulation under the CWA. As indicated above, such regulation could impair

and legally cloud established State water rights. Second, the Agencies have failed to 

define or clarify what constitutes "shallow." It could be found that all waters with any 

level of ground water connection are "adjacent" and therefore subject to federal

permitting and regulation. This would again impair established State water resources. The 

Department recommends that this language be removed and that the Agencies work with 

the Department to develop an acceptable "adjacency" test. (p. 15-17)

Agency Response: The final rule does not define “adjacent waters” based on 

shallow subsurface flow or the riparian area. Preamble, IV. The agencies 

determined that the waters defined as adjacent have a significant nexus with
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301

traditional navigable waters, interstate waters or the territorial seas and are thus 

“waters of the United States.” Preamble, III and IV, Technical Support Document, 

II and VI. The rule is consistent with the statute and the caselaw. Technical 

Support Document, I.A. and C.

County of Butler Board of Commissioners (Doc. #6918.1)

10.344 In the Rapanos consolidated case of June Carabell, et. al. v. United States Army Corps of 

Engineers, the issue addressed by the Supreme Court was whether a wetland may be 

considered adjacent to remote "waters of the U.S.," because of a mere hydrological 

connection to them. In Carabell,...the Court addressed whether a wetland may be 

considered 'adjacent to' remote 'waters of the United States,' because of a mere hydrologic 

connection to them." More specifically, the Court reasoned as follows: 

In Riverside Bayview, we noted the textual difficulty in including 'wetlands" as a 

subset of "waters': 'On a purely linguistic level, it may appear unreasonable to 

classify 'lands,' wet or otherwise, as waters.' We acknowledged, however, that 

there was an inherent ambiguity in drawing the boundaries of any 'waters':

'[T]he 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.'

Because of this inherent ambiguity, we deferred to the agency's inclusion of wetlands 

'actually abut[ ting]' traditional navigable waters: 'Faced with such a problem of defining 

the bounds of its regulatory authority,' we held, the agency could reasonably conclude 

that a wetland that 'adjoin[ed]' waters of the United States is itself a part of those waters. 

The difficulty of delineating the boundary between water and land was central to our 

reasoning in the case: 'In view of the breadth of federal regulatory authority contemplated 

by the Act itself and the inherent difficulties of defining precise bounds to regulable 

waters, the Corps' ecological judgment about the relationship between waters and their 

adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands 

may be defined as waters under the Act.' 

When we characterized the holding of Riverside Bayview in SWANCC, we referred to the 

close connection between waters and the wetlands that 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. In particular, SWANCC rejected the notion 

that the ecological considerations upon which the Corps relied in Riverside Bayview-and 

upon which the dissent repeatedly relies today, provided an independent basis for 

including entities like 'wetlands' (or 'ephemeral streams') within the phrase 'the waters of 

the United States.' SWANCC found such ecological considerations irrelevant to the 

question whether physically isolated waters come within the Corps' jurisdiction. It thus 

confirmed that Riverside Bayview rested upon the inherent ambiguity in defining where 

water ends and abutting ('adjacent') wetlands begin, permitting the Corps' reliance on 

ecological considerations only to resolve that ambiguity in favor of treating all abutting 
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302

wetlands as waters. Isolated ponds were not 'waters of the United States' in their own 

right, and presented no boundary-drawing problem that would have justified the 

invocation of ecological factors to treat them as such. 

Therefore, only those wetlands with a continuous surface connection to bodies that are 

'waters of the United States' in their own right, so that there is no clear demarcation 

between 'waters' and wetlands, are 'adjacent to' such waters and covered by the Act. 

Wetlands with only an intermittent, physically remote hydrologic connection to 'waters of 

the United States' do not implicate the boundary-drawing problem of Riverside Bayview, 

and thus lack the necessary connection to covered waters that we described as a 

'significant nexus' in SWANCC. Thus, establishing that wetlands such as those at the 

Rapanos and Carabell sites 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.

The Rapanos Court indicated that an agency's construction of a statute it is charged with 

enforcing is entitled to deference if it is reasonable and not in conflict with the expressed 

intent of Congress. A logical extension to this reasoning would be the reasonableness of 

the agency's implementation of its interpretation of the statute under the directives of the 

Court-especially the Supreme Court. After reviewing the applicable Supreme Court cases 

and the proposed rule set forth by the EPA and the Corps, it is beyond reasonable 

comprehension that the Sixth Circuit remanded tile case to a party opponent (the Corps) 

who was found to over extend its authority in the initial instance requiring Court 

intervention. The Supreme Court was clear in its remand to the Sixth Circuit when it 

provided" because of the paucity of the record in both of these cases, the lower courts 

should determine ... whether the ditches or drains near each wetland are 'water' in the 

ordinary sense of containing a relatively permanent flow; and (if they are) whether the 

wetlands in question are 'adjacent' to these 'waters' in the sense of possessing a 

continuous surface connection that created the boundary-drawing problem we addressed 

in Riverside Bayview." Sometimes federal regulation goes too far in the daily operations 

of business, agriculture and individual land ownership. Federal regulation mandates what 

States have to oversee and the actual "dollar buck" is passed onto local county and 

municipal governments who are the service providers. This particular proposed rule by 

the EPA and the Corps is one of regulators gone rogue. The Supreme Court was clear that 

these agencies exceeded authority by an objective reading of case precedent in Rapanos. 

It's time to stop wasting taxpayer dollars for expansion of an agency's regulatory 

authority viewed as absolute power not within their jurisdiction. This proposed rule 

should be withdrawn. Why it was not brought back to the Eastern District Court of 

Michigan for decision as set forth in the Rapanos ' Court Remand Order is without 

explanation. 

Although the broadest possible constitutional interpretation of "waters of the U.S." 

appears to be the goal of the EPA and the Corps in this proposed rule expansion, one 

must remember that the constitutional constriction is to interstate commerce. Both the 

EPA and the Corps overstepped Congress' Constitutional authority regarding interstate 

commerce limitations established by the Supreme Court. The proposed rule over 
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dissected Supreme Court case analysis and specific interpretations of the CW A to violate 

all Constitutional parameters of interstate commerce and federalism despite the Rapanos

Court's sweeping clarifications regarding both the concurring and the dissenting opinions. 

Consistent with the "separation of powers," the proposed rule should be withdrawn and if 

necessary, forwarded to Congress for full consideration and discussion of the Supreme 

Court's actual and accurate interpretation of statutory terms and construction. This would 

allow the true intent of Congress and our legislative system of checks and balances to 

prevail. The Rapanos Court's final statement should put this proposed rule to an abrupt 

end. "Clean water is not the only purpose of the statute. So is the preservation of primary 

state responsibility for ordinary land-use decisions ... It would have been an easy matter 

for Congress to give the Corps jurisdiction over all wetlands (or, for that matter, all dry 

lands) that significantly affect the chemical, physical, and biological integrity of 'waters 

of the U.S. It did not do that, but instead explicitly limited jurisdiction to 'waters of t/1e 

U.S.'" Clearly, this proposed rule by the EPA and the Corps both exceeds constitutional, 

statutory and judicial authority. (p. 10-12)

Agency Response: The rule is consistent with the statute, caselaw, and the 

Constitution. Technical Support Document, I.A. and C.

10.345 Proposed legislation HR 5078- Waters of the United States Regulatory Overreach 

Protection Act of 2014 passed the House on September 9, 2014. Hopefully HR 5078 will 

also pass the Senate to immediately stop the actions of the EPA and Corps regarding their 

proposed rule. It is a positive action that the proposed legislation stops the EPA and the 

Corps from "developing, finalizing, adopting, implementing, applying, administering, or 

enforcing the proposed rule entitled, "Definition of 'Waters of the United States' Under 

the Clean Water Act," issued on April 21, 2014, or the proposed guidance entitled, 

"Guidance on Identifying Waters Protected By the Clean Water Act," dated February 17, 

20 12;" or " using the proposed rule or proposed guidance, ally successor document, or 

any substantially similar proposed rule or guidance as the basis for any rulemaking or 

decision regarding the scope or enforcement of the Federal Water Pollution Control Act 

(commonly known as the Clean Water Act)." 

It is especially positive that HR 5078 requires the EPA and the Corps withdraw their 

jointly proposed interpretive rule entitled, "Notice of Availability Regarding the 

Exemption from Permitting Under Section 404(f) (1) (A) of the Clean Water Act to 

Certain Agricultural Conservation Practices," issued on April 21, 2014. Under HR 5078, 

both Supreme Court and federalism mandates must be followed requiring the EPA and 

the Corps to consult with relevant state and local officials to develop recommendations 

for proposed regulations identifying both the scope of covered and non-covered waters 

under the Clean Water Act. Hopefully, more streamlined internal methodologies will be 

applied by the EPA and the Corps pursuant to HR 5078 or from all comments received 

pertaining to the proposed rule. Voluntary withdrawal of the proposed rule would be the 

prudent action by the EPA and Corps at this time. (p. 13)

Agency Response: The agencies have complied with all applicable laws.

Murray County, Minnesota, Board of Commissioners (Doc. #7528.1)

10.346 The newly proposed rule offers new language and terms that depart from the 

nomenclature used in the Clean Water Act, historical regulations, and existing case-law 
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304

precedence. The proposed rule therefore is challenging to synthesize with existing case 

law. (p. 2)

Agency Response: The agencies have used the structure and text of the existing 

rule to the extent possible. 

10.347 We oppose the replacement of "adjacent wetlands" with "adjacent waters" and believe 

that this proposal is not legally supported by the Clean Water Act and its case law. As 

proposed, this section of the rule represents the largest expansion of jurisdiction by the 

agencies over regulated waters. 

In Riverside Bayview Homes, the Supreme Court explained that Congress's concerns over 

restoring the integrity of navigable waters could reasonably conclude that "regulation of 

at least some discharges into wetlands" adjacent to navigable waters is permitted by the 

Clean Water Act. See Us. v. Riverside Bayview Homes. Inc., 474 U.S. 121, 137 (1985). In 

SWANCC, the Court rejected extension of jurisdiction to wetlands not adjacent to 

navigable waters, stating, " It was the significant nexus between wetlands and 'navigable 

waters' that informed our reading of the [Act] in Riverside Bayview Homes." Solid Waste 

Agency of N. Cook Cnty. v, Us. Army Corps ofEng'rs, 53] U.S. 159,]67 (2001). In 

Rapanos, Justice Kennedy recognized that the limit of the agencies' powers over adjacent 

wetlands is set by a determination of the wetlands significant nexus to navigable water. 

Rapanos v. U.S., 547 U.S. 7] 5,759 (2006). (p. 6)

Agency Response: The rule is consistent with the CWA and the caselaw. 

Technical Support Document, I.A. and C.

Rio Grande Water Conservation District (Doc. #15124)

10.348 Setting aside the devastating impact to the agricultural community, asserting regulatory 

authority over small water features that alone bear no meaningful connection to major 

waterways would violate both the letter and spirit of the U.S. Supreme Court's decisions 

in Rapanos, SWANCC, and Riverside. As discussed below, these decisions make clear 

that the EPA's and Corps' jurisdiction under the CWA has limits. For example, Justice 

Kennedy cautioned in Rapanos that the relationship between a particular water feature 

and navigable waters must be more than "speculative or insubstantial." Aggregating 

similarly situated features in a region could easily nullify this and other important 

jurisdictional limitations found in the Act and in U.S. Supreme Court jurisprudence. 

The revisions to the existing definition of "adjacent wetlands" further highlight the 

expanded scope of federal jurisdiction under the proposed rule. The proposal is to change 

"adjacent wetlands" to "adjacent waters" so that the term also includes bodies of water 

like ponds and oxbow lakes. Only adjacent wetlands are classified as "waters of the U.S." 

under the current rule. On its face, therefore, the new definition is broader than the 

existing definition. This is confirmed by EPA and Corps' admission in the preamble that 

only some of the adjacent non-wetland water features that will now be jurisdictional by 

rule have been historically subject to federal CWA regulation. Proposed Rule at 22207. It 

is difficult for the RGWCD to understand how the contemplated revisions would work to 

narrow federal jurisdiction under the CWA. (p. 3)

The United States Supreme Court has ruled on three separate occasions that federal 

jurisdiction under the CWA has limits. In the first of the three cases, US. v. Riverside 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

305

Bayview Homes, Inc. , 474 U.S. 121 (1985), the court was faced with the question of 

whether the Corps had properly concluded that certain wetlands abutting traditionally 

navigable waters could be regulated as "waters of the U.S." The Riverside court upheld 

the agency's jurisdictional determination under the highly deferential Chevron standard. 

But in doing so, Justice White placed great emphasis on the fact that the wetlands in 

question were found to have a direct, immediate, and continuous hydrologic connection 

to downstream navigable waters. Because the wetlands were "inseparably bound up" with 

waters clearly subject to CWA regulation, the court could not conclude that the agency 

had acted unreasonably in asserting jurisdiction. Id. at 133- 135. 

Riverside stands only for the proposition that it is not unreasonable for the EPA and 

Corps to assert jurisdiction under the CW A over wetlands that bear a direct and 

uninterrupted surface connection to a downstream navigable waterway. Justice White 

was careful to limit the scope of his ruling to such "adjacent wetlands." E.g., id. at 131, 

fn8 ("We are not called upon to address the question of authority of the Corps to regulate 

discharges of fill materials into wetlands that are not adjacent to bodies of open waters, 

and we do not express any opinion on that question."). In discussing the scope of "waters 

of the U.S." under the Act, the court held that "waters" refers primarily to "rivers, 

streams, and other hydrographic features." Id. at 131.

The Supreme Court was more definitive in its pronouncements on the scope of "waters of 

the U.S." 15 years later in Solid Waste Agency of Northern Cook County v. United States 

Army Corps of Engineers, 531U.S.159 (2001). SWANCC involved a challenge to the 

Corps exercise of jurisdiction over a "scattering of permanent and seasonal ponds of 

varying sizes" located on an abandoned mining site. The Corps had asserted jurisdiction 

over the ponds under its Migratory Bird Rule, which deemed waterways jurisdictional if 

they "are or could be used" by migratory birds. The Solid Waste Agency of Northern 

Cook County challenged the scope of the Corps' jurisdiction under the "clarifying" 

Migratory Bird Rule. The Waste Agency argued, among other things, that the rule, which 

attempted to assert jurisdiction to the full extent allowed by the Commerce Clause, was 

inconsistent with the text of the CWA as well as its legislative history. 

The SWANCC court sided with the Waste Agency and struck down the Migratory Bird 

Rule as an unreasonable exercise of agency discretion; finding it unreasonable even under 

the agency-friendly Chevron standard. In doing so, the court soundly rejected the Corps' 

expansive interpretation of its own jurisdiction. E.g., Id. at 172-173 ("We thus decline 

respondents' invitation to take what they see as the next ineluctable step after Riverside: 

holding that isolated ponds, some only seasonal, wholly located within two Illinois 

counties, fall under Sec 404(a)'s definition of 'navigable waters' because they serve as 

habit for migratory birds."); 172 ("But it is one thing to give a word limited effect and 

quite another to give it no effect whatever. The term 'navigable' has at least the import of 

showing us what Congress had in mind as its authority for enacting the CWA: its 

traditional jurisdiction over waters that were or had been navigable in fact or which could 

reasonably be so made."); 174 ("Permitting respondents to claim federal jurisdiction over 

ponds and mudflats falling within the 'Migratory Bird Rule' would result in a significant 

impingement of the States' traditional and primary power over land and water use."). 

The statements in SWANCC regarding the limits of federal jurisdiction under the Act are 

unequivocal and have broad application. In writing for the dissent, Justice Stevens 
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306

recognized that the majority opinion had established a new jurisdictional line. He 

characterized the decision as "one that invalidates the 1986 migratory bird regulation as 

well as the Corps' assertion of jurisdiction over all waters except for actually navigable 

waters, their tributaries, and wetlands adjacent to each." Id. at 176-177.

The Supreme Court revisited the issue of the scope of federal jurisdiction under the CWA 

for a third time in Rapanos, et al. v. United States, 547 U.S. 715 (2006). Mr. Rapanos 

backfilled several fields with "sometimes-saturated soil conditions" located on his 

Michigan property. The fields, which the Corps deemed wetlands, were in the vicinity of 

man-made drains that eventually emptied into navigable waters 11 to 20 miles 

downstream. The United States brought civil and criminal enforcement proceedings 

against Mr. Rapanos, claiming that the wetlands were "waters of the U.S." and that the 

backfilling was done without the required Section 404 permit. The issue before the 

Supreme Court was whether the Corps had properly asserted jurisdiction over the 

wetlands. 

The Supreme Court overturned the 6th Circuit's ruling upholding the Corps' exercise of 

jurisdiction and remanded the case to the trial court to make further factual 

determinations regarding the relationship of the wetlands to the drainages and 

downstream navigable waterways in light of the Court's ruling in Riverside. While none 

of the opinions penned in Rapanos garnered the support of a majority of the Justices, all 

nine Justices approved of the court's ruling in SWANCC. The majority opinion in 

SWANCC therefore continues to represent binding authority. In further support of the 

limitations set forth in SWANCC, the plurality opinion and each of the concurrences in 

Rapanos make clear that courts cannot uphold an interpretation of ''waters of the U.S." 

that seeks to confer unlimited, or nearly unlimited, federal jurisdiction on the EPA and 

the Corps:

Justice Scalia's Plurality Opinion, 547 U.S. 715, 731-732 ("The only natural definition of 

the term 'waters,' our prior and subsequent judicial constructions of it, clear evidence 

from other provisions of the statute, and this Court's canons of construction all confirm 

that 'the waters of the United States' in Section 1362(7) cannot bear the expansive 

meaning that the Corps would give it."); id. at 734 ("In addition, the Act's use of the 

traditional phrase 'navigable waters' (the defined term) further confirms that it confers 

jurisdiction only over relatively permanent bodies of water.").

Justice Roberts' Concurrence, 547 U.S. 715, 758 ("Rather than refining its view of its 

authority in light of our decision in SWANCC, and providing guidance meriting 

deference under our generous standards, the Corps chose to adhere to its essentially 

boundless view of the scope of its power [under the CW A]. The upshot today is another 

defeat for the agency."). 

Justice Kennedy's Concurrence, 547 U.S. 715, 780 ("When, in contrast, wetlands' effects 

on water quality are speculative or insubstantial, they fall outside the zone fairly 

encompassed by the statutory term 'navigable waters'"). 

The United States Supreme Court has established the following framework for 

interpreting and applying plurality opinions: "When a fragmented Court decides a case 

and no single rationale explaining the result enjoys the assent of five Justices, 'the holding 

of the Court may be viewed as that position taken by those Members who concurred in 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

307

the judgments on the narrowest grounds..." 'Marks v. United States, 430 U.S. 188, 193, 

97 S. Ct. 990, 993 (1977), quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 

2909, 2923 (1976). The Marks Rule applies when "the concurrence posits a narrow test to 

which the plurality must necessarily agree as a logical consequence of its own, broader 

position." United States v. Epps, 707 F.3d 337, 348 (D.C. Cir. 2013) (emphasis in 

original). The Mark Rule plainly applies to the Rapanos decision. Justice Scalia 

concurred in the judgment on the narrowest grounds. And only his test identifies bodies 

of waters which each of the other four Justices concurring in the judgment would agree 

are jurisdictional under the Act. Yet, inexplicably, the EPA acknowledges that the 

proposed rule is based on the broadest test set forth in any of the concurring opinions, 

Justice Kennedy's "Significant Nexus" test. 

When read together, Riverside, SWANCC and Rapanos require a much narrower 

interpretation of federal jurisdiction under the CW A than the one EPA and Corps now 

advance. This is especially true given that the agencies appear to give nearly unlimited 

breadth to "waters of the U.S." in the proposed rule. "Where an administrative 

interpretation of a statute invokes the outer limits of Congress' power, we expect a clear 

indication that Congress intended that result." SWANCC, 531 U.S. 159, 172. The only 

clear indication that exists is that Congress did not intend such a result. (p. 3-6)

Agency Response: The rule is consistent with the caselaw and the Constitution. 

Technical Support Document, I.C.

10.349 Congress enacted the CW A to establish a comprehensive long-range policy for the 

elimination of water pollution in the United States. In structuring the Act to achieve this 

goal, Congress was careful not to disturb the traditional balance of federal-state power. 

This is best illustrated in Section 1251(b), which provides, "it is the policy of Congress to 

recognize, preserve, and protect the primary responsibility and rights of States to prevent, 

reduce, and eliminate pollution." This spirit of "cooperative federalism" permeates the 

Act and its legislative history, and represents an understanding by Congress that the states 

are best situated to effectively regulate pollution occurring within their borders. (p. 6)

Agency Response: The rule is consistent with the statute. Technical Support 

Document, I.A.

10.350 Finally, the Court made clear that the physical evidence can be either quantitative or

qualitative and that it did not intend to place an unreasonable burden on the Corps. 

However, it held that the Corps should provide sufficient documentation "which need not 

take the form of any particular measurements but should include some comparative 

information that allows us to meaningfully review the significance of the wetlands 

impacts on downstream water quality."527 The Precon decision demonstrates that the 

 

527 The court cited to the decisions of the Ninth and Sixth Circuits as "good examples of the types of evidence --

either quantitative or qualitative -- that could be sufficient to establish significance. Northern California River 

Watch v. City of Healdsburg, 496 F.3d. 993 (9th Cir. 2007) (significant nexus test met after district court found 

"increased chloride levers in the relevant navigable water form 5.9 parts per million to 18 parts per million due to 

chlorine seepage from the wetlands in question into the navigable river.") Id. at 1001, United States v. Cundiff, 555 

F.3d. 200 (6th Cir. 2009) (Sixth Circuit's opinion rested on evidence that the wetlands acid mine drainage storage 

capabilities and flood storage capabilities had a direct and significant impacts on the [Green River]."
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

308

agencies cannot rely exclusively on broad watershed desktop studies and data to establish 

"significant nexus". However, the proposed rule allows field personnel to use broad 

desktop information without conducting the kind of analysis that the Precon case found is 

required to satisfy the legal determination of significant nexus. NSSGA's members fear 

that, under the proposed rule, field personnel will simply aggregate the cumulative 

functions and values of all wetlands adjacent to a tributary without providing sufficient 

specific evidence comparing these aggregated wetlands to the functions performed by the 

TNW to conclude that they have a significant nexus with the functions and values of the

TNW.528 The agencies may argue that such site-specific analysis will create an undue 

evidential burden on field personnel and may leave important aquatic areas unprotected if 

sufficient evidence is not gathered. Yet, they ignore an over-riding truth. Relying on the 

broad connectivity theory, is no substitute for meeting their burden as a legal matter to 

faithfully apply the significant nexus test as envisioned by Justice Kennedy in Rapanos.

(p. 39-40)

Agency Response: The Fourth Circuit in Precon II upheld the Corps’ 

jurisdictional determination. Technical Support Document, I.C. With this action, 

the agencies are exercising their rulemaking authority under the CWA, consistent 

with Justice Kennedy’s opinion, and the rule is consistent with the caselaw and the 

science. Technical Support Document, I.C, II and VI.

Utah Association of Counties (Doc. #14756)

10.351 EPA/Army Corps Clean Water Act (CWA) jurisdiction extends only to “navigable

waters.” 33 U.S.C. §§ 1311(a), 1342(a). Navigable waters are defined as “the waters of 

the United States, including the territorial seas. 33 U.S.C. § 1362(7). 

The Rapanos four justice plurality ruled that the lands at issue are per se not included in 

“the waters of the U.S.” In so ruling the plurality held:

 CWA jurisdiction extends only over “waters” and not just waters in general; 

 CWA jurisdiction extends even more narrowly to relatively permanent bodies of 

water as found in streams and forming geographical features such as streams, 

oceans, rivers and lakes, as opposed to ordinarily dry channels through which 

water occasionally or intermittently flows. Thus, 

 Isolated ponds are not "waters of the United States" in their own right;--

Intermittent and ephemeral streams are not “waters of the United States” in their 

own right; but

 

528 Some courts apply a somewhat more lenient evidentiary standard for determining significant nexus than Precon. 

E.g. Wis. Resources Protection Council v. Flambeau Mining Co., 903 F. Supp. 2d. 690, 715 (W.D. Wis., 2012) 

("Plaintiffs have adduced evidence showing that the stream contributes its flow to the River, delivers water 

containing pollutants to the river and provides habitat for at least six species of fish..." [Without supplying data 

regarding stream flow, duration or measurable impact of the copper and zinc] the court cited Justice Kennedy's 

statement in Rapanos that "significant nexus test does not require quantitative, physical evidence or laboratory 

analysis of soil samples, water samples or...other tests." 547 U.S. at 779- 80. Even this more lenient standard is a far 

cry from the proposed rule's categorical inclusion of all tributaries and adjacent wetlands and aggregation approach 

to other waters.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

309

 Seasonal streams that carry water continuously except during dry months are 

“waters of the United States” in their own right. 

 Defining where the water of a water body ends and where the water body’s 

abutting wetland begins is inherently ambiguous. Thus looking to Riverside 

Bayview, the Rapanos plurality resolved the ambiguity in favor of treating all

abutting wetlands as “jurisdictional” but only if there is a continuous surface 

connection to bodies of water that are “waters of the U.S. in their own right.” 

Thus, 

 A wetland may not be considered “adjacent to” remote water bodies that are 

waters of the U.S. in their own right, based on a mere hydrological connection.

A broader reading of “the waters of the U.S.” is hard stopped by this pillar of CWA 

Congressional stated policy objective, namely "to recognize, preserve, and protect the 

primary responsibilities and rights of the States ....to plan the development and use...of 

land and water resources..." 33 U.S.C. § 1251(b). This CWA policy objective is equally 

prominent and controlling as that of § 1251(a), "to restore and maintain the chemical, 

physical, and biological integrity of the Nation's waters," and actually more so given the 

fact that Congress in the CWA chose to achieve these objectives only by expressly 

regulating “the waters” of the U.S., as opposed to other waters and lands. 

Concurring in the judgment, Justice Kennedy opined that all wetlands should be subject 

to a “significant nexus” test to determine if they are jurisdictional. Yet multiple reads of 

the Rapanos concurrence leave us to conclude that it is practically impossible to capture 

in the form of a workable rule, what Justice Kennedy believes all the elements are in a 

“significant nexus” inquiry. Based on portions of the concurrence in the judgment, Justice 

Kennedy arguably would be the first to admit that he himself would not know how a rule 

could capture such a test and all its potentially endless permutations. In fact at least once 

in the concurrence Justice Kennedy indicates that the nexus test to some extent must be 

ascertained on a case by case basis, eschewing both the plurality and the dissent for trying 

to solidify bright line tests for which wetlands may or may not be jurisdictional, the one 

he regards as too rigidly narrow and excluding and the other he regards as rigidly broad 

and over‐including. 

10.352 It is odd that in the shadow of this 4-1-1 decision with a swing concurrence that defies 

rational rule-type categorization, the EPA/Army Corps would propose a rule with the 

kind of rigid overreach and intrusion that Kennedy eschewed. The EPA/Arm Corps 

proposed rule is a sitting duck for lawsuits for violating the intersection of the Rapanos

plurality and concurrence, not to mention SWANCC and Riverside Bayview holdings 

which the Rapanos plurality and concurrence acknowledged. (p. 2-4)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.

10.353 To try to fashion another rule, one could bounce back and forth between the Rapanos

plurality’s restrictive narrow standard and the Rapanos dissent’s strict intrusive 

overreach. 

But there is a better way. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

310

The first step is to be willing as an agency to recognize and identify the significant 

elements of the Rapanos concurrence that overlap with portions of the Rapanos plurality 

and that repudiate portions of the dissent, thus giving rise to an inferred five-- justice 

supported rule (bounded by the extent of that overlap and repudiation), workable enough 

to give the public some certainty in at least some of the wetlands cases. 

The next step is be willing to accept from the confusion of the rest of Kennedy’s 

concurrence that many wetland issues will just have to be handled on a case-by-case 

basis, and stop worrying about doing a rule wonderful enough to handle all cases, and 

stop obsessing about pushing your jurisdictional reach further and further in ways that 

you know will result in Supreme Court repudiation and possibly Congressional censure in 

the form of new laws and de-funding enforcement of the rule. 

Here from the soup of Justice Kennedy’s Rapanos concurrence are five discrete points of 

inquiry, which could be intersected with compatible parts of the plurality opinion and 

backstopped against incompatible parts of the dissent, to find common elements 

sufficient to fashion a workable rule for some but not all wetlands issues, if EPA/Army 

Corps must have a new rule. But these cannot support a rule broad enough to handle all 

cases, so again, you’re going to have to adopt mindset of readiness to do case by case 

determinations. To the identifiable elements of the Rapanos concurrence: 

This would be a step by step cumulative inquiry, requiring satisfactory responses to all 

five questions to find a “significant nexus” between the subject water, including wetland, 

and the undisputed navigable water: 

The threshold inquiry into the existence of a significant nexus is whether the subject 

wetland is adjacent to a navigable water body regardless of whether there is continuous 

surface flow between the subject wetland and the navigable water body. Indeed Kennedy 

devotes a large share of his opinion trying to beat back the plurality’s dual requirement of 

adjacency plus continuous surface flow. See, e.g., this quote from 547 U.S. 780:

“As applied to wetlands adjacent to navigable-in-fact waters, the Corps' 

conclusive standard for jurisdiction rests upon a reasonable inference of 

ecologic interconnection, and the assertion of jurisdiction for those 

wetlands is sustainable under the Act by showing adjacency alone. That is 

the holding of Riverside Bayview.”

Next question: Does including the subject wetland in “the waters of the U.S.” 

significantly affect the first CWA policy objective, namely “restore and maintain the 

chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a), 

and at the same time does it no harm to the equally valid and weighty second CWA 

policy objective 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). Only if the answers are 

satisfactory on both objectives, i.e., only if including of the subject wetland advances the 

first objective without harming the second objective, would this prong of the “significant 

nexus” test be satisfied. 

Next, because mere hydrologic connection alone is not enough, the pertinent inquiry is 

whether the connection is substantial enough that the subject wetland is inundated or 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

311

saturated by surface or ground water at a frequency and duration sufficient to support, 

and that under normal circumstances do support, a prevalence of vegetation typically 

adapted for life in saturated soil conditions. Wetlands generally include swamps, 

marshes, bogs, and similar areas." If not, then the “significant nexus” test is over. Subquestions under this question should inquire about: 

a) the prevalence of plant species typically adapted to saturated soil 

conditions, determined in accordance with the United States Fish and 

Wildlife Service's National List of Plant Species that Occur in Wetlands;

b) the existence of hydric soil, meaning soil that is saturated, flooded, or 

ponded for sufficient time during the growing season to become 

anaerobic, or lacking in oxygen, in the upper part; and 

a. the presence of wetland hydrology, a term generally requiring continuous 

inundation or saturation to the surface during at least five percent of the 

growing season in most years. 

Because the concept of "navigable" in the statutory term "navigable waters" must be 

given some importance, the connection between the subject wetland and an adjacent 

navigable body of water must be readily apparent. Under this common man common 

sense test, non‐adjacent wetlands that lay alongside non‐navigable ditches or drains, 

isolated ponds and mudflats are non‐jurisdictional, even if water from these features may 

eventually one day flow into a traditional navigable water body.

a) (a) The concept of “navigable” supports Justice Kennedy’s requiring a tributary to 

bear an ordinary highwater mark on its banks or shores. This is one more 

reasonable measure of whether specific minor tributaries bear a sufficient nexus 

with other regulated waters to constitute "navigable waters" under the Act. 

(b) But as Justice Kennedy notes, the mere presence of an ordinary highwater 

mark may not be enough, because ordinary high water marks may occur on 

tributaries that do not otherwise qualify for inclusion in “the waters of the United 

States,” such as drains, ditches, and streams remote from any navigable‐in‐fact 

water and carrying only minor water volumes toward it. This precludes adoption 

of an “ordinary high water mark” as a 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 CWA's scope in SWANCC. 

The upshot of this is that absent an ordinary highwater mark, a tributary per se should not 

be regarded as jurisdictional, but even with the presence of an ordinary highwater mark, 

the tributary should not be jurisdictional if merely a drain, ditch, or stream remote from 

any navigable-in-fact water and carrying only minor water volumes toward it. (p. 4-7)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C. The definition of “tributary” in the rule requires a bed and banks 

and other indicator of ordinary high water mark. Preamble, IV and Technical 

Support Document, VI.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

312

10.354 33 CFR 328.3 Current Rule: (7) Wetlands adjacent to waters (other than waters that are 

themselves wetlands) identified in paragraphs (a) (1) through (6) of this section;

UAC Proposed Change to 33 CFR 328.3: (6) All waters, including wetlands, adjacent 

to a water identified in paragraphs Wetlands that abut waters (other than waters 

that are themselves wetlands) identified in (a)(1) through (5) of this section; and

(7) On a case-specific basis, other waters, including wetlands, provided that those 

waters alone, or in combination with other similarly situated waters, including 

wetlands, located in the same region, have a significant nexus to a water identified in 

paragraphs (a)(1) through (3) of this section. All other waters such as intrastate 

lakes, rivers and streams that have a significant nexus to a water (other than waters 

that are themselves wetlands) identified in paragraphs a(1) through (3) of this 

section. (p. 10)

Agency Response: In response to comments, the agencies modified this provision 

of the rule. Preamble VI.

10.355 UAC Proposed Change to 33 CFR 328.3: (c) Definitions— (1) Adjacent. The term 

adjacent means abuting, bordering, contiguous or immediately neighboring. Waters, 

including wetlands, separated from other waters of the United States by man-made dikes 

or barriers, natural river berms, beach dunes and the like are ‘‘adjacent waters.’’ (p. 13)

Agency Response: The rule is based on the agencies’ careful examination of the 

science and the law to determine that adjacent waters seperated from other “waters 

of the United States” by constructed dikes or barriers, natural river berms, beach 

dunes and the like have a significant nexus with traditionally navigable waters, 

interstate waters, or the territorial seas. Preamble IV. 

10.356 UAC Proposed Change to 33 CFR 328.3: (2) (3) Neighboring. The term neighboring, for 

purposes of the term ‘‘adjacent’’ in this section, means immediately next to. includes 

waters located within the riparian area or floodplain of a water identified in 

paragraphs (a)(1) through (5) of this section, or waters with a shallow subsurface 

hydrologic connection or confined surface hydrologic connection to such a 

jurisdictional water.

(3) Riparian area. The term riparian area means an area bordering a water where 

surface or subsurface hydrology directly influence the ecological processes and plant 

and animal community structure in that area. Riparian areas are transitional areas 

between aquatic and terrestrial ecosystems that influence the exchange of energy 

and materials between those ecosystems. 

(4) Floodplain. The term floodplain means an area bordering inland or coastal 

waters that was formed by sediment deposition from such water under present 

climatic conditions and is inundated during periods of moderate to high water flows. 

(p. 16-17)

Agency Response: The rule no longer includes a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provides that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

313

provides specific distance limits for “neighboring” waters. In addition, where the 

definition continues to use the term “floodplain,” it specifies the “100-year” 

floodplain. Preamble, IV. 

Atlantic Legal Foundation (Doc. #15253)

10.357 A prime example of the proposed rule’s increased ambiguity is how the category of 

“adjacent wetlands” for per se jurisdiction will be replaced with the term “adjacent 

waters.” It will define “adjacent waters” as “wetlands, ponds, lakes and similar water 

bodies that provide similar functions which have a significant nexus to traditional 

navigable waters, interstate waters, and the territorial seas.”529 The highlighted terms are 

malleable and will accord the agencies greater discretion while providing little clarity for 

property owners. Similarly, the proposed rule will expand the modifier “adjacent,” 

originally codified as meaning “bordering, contiguous, or neighboring.”530 The proposed 

rule will broaden this definition by interpreting “neighboring” to include waters with a 

shallow subsurface hydrologic connection to a traditionally navigable water, within 

“reasonable proximity.”531 It will be difficult and costly for property owners to ascertain 

whether an isolated water body on their land contains a shallow subsurface hydrologic 

connection to a jurisdictional water, much less whether it is within “reasonable 

proximity.” (p. 3)

Agency Response: In response to comments, the agencies did not define “adjacent 

waters” to include waters with a shallow subsurface hydrologic connection. 

Preamble, VI.

Without explanation, the proposed rule unceremoniously, and without sufficient basis, 

disposes of Justice Scalia’s plurality opinion in Rapanos v. United States and Carabell v. 

United States (“Rapanos”) in favor of the nebulous “significant nexus” test found in 

Justice Kennedy’s concurrence. In Rapanos,

532 the plurality opinion held that “waters of 

the United States” covered relatively permanent, standing or continuously flowing bodies 

of water that are connected to traditional navigable waters, in addition to adjacent 

wetlands with a continuous surface connection to such water bodies.533 The proposed 

regulation substitutes the amorphous term “adjacent waters” for the phrase “adjacent 

wetlands.” This skews the plurality’s definition, giving the agencies vast discretion to 

interpret what constitutes an “adjacent water.” Further, under the proposed rule 

theseadjacent waters may be connected via subsurface hydrologic connections, 

completely at odds with the plurality’s “continuous surface” connection requirement.534

Not only does the proposed rule contradict the plurality’s definition, but the agencies fail 

to explain why Justice Kennedy’s amorphous definition should supplant Justice Scalia’s 

more concrete and certain test. At a minimum, we believe the agencies should be required 

to give a detailed rationale for this decision. (p. 4-5)

 

529 Id. at 22207.

530 33 C.F.R. § 328.3(c) (1993).

531 See Definition, supra note 1, at 22207.

532 Rapanos v. United States and Carabell v. United States, 547 U.S. 715 (2006).

533 Id. at 739, 742.

534 See Definition, supra note 1, at 22188
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Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C. In response to comments, the agencies did not define “adjacent 

waters” to include waters with a shallow subsurface hydrologic connection. 

Preamble, VI.

National Association of Manufacturers (Doc. #15410)

10.358 The proposed rule defines “waters of the United States” to include “[a]ll waters, 

including wetlands, adjacent to” traditional navigable waters and their tributaries. 

Proposed 33 C.F.R. § 328.3(a)(6), 79 Fed. Reg. at 22263. “Adjacent” is defined as 

“bordering, contiguous, or neighboring,” and “neighboring” includes waters located 

within the “riparian area” or “floodplain,” or “waters with a shallow subsurface 

hydrologic connection or confined surface hydrologic connection to such a jurisdictional 

water.” Proposed 33 C.F.R. § 328.3(c)(1)-(4), 79 Fed. Reg. at 22263. “Waters, including 

wetlands, separated from other waters of the United States by man-made dykes or 

barriers, natural river berms, beach dunes and the like” are still considered “adjacent 

waters.” Proposed 33 C.F.R. § 328.3(c)(1), 79 Fed. Reg. at 22273. Given the breadth of 

the definition of “adjacency” (and the incorporated term “neighboring”), the proposed 

rule will result in waters being jurisdictional even when they have no hydrological 

connection to a traditional navigable water or when they are remote from a traditional 

navigable water and are only indirectly connected to that traditional navigable water 

through ephemeral streams or ditches with intermittent flow.535 Thus, the proposed 

definition of “adjacency” is grossly overbroad, contrary to the statute and controlling 

Supreme Court precedents, and arbitrary and capricious. 

The proposed rule does not, and cannot, claim that the proposed definition of “adjacency” 

comports with the plurality’s opinion in Rapanos. As noted, the four-justice plurality held 

that “the waters of the United States” includes “only relatively permanent, standing or 

flowing bodies of water,” such as “streams, oceans, rivers, lakes, and bodies of water 

forming geographical features.” 547 U.S. at 732-33 (internal quotation marks omitted). 

The proposed rule, however, proposes to include as “adjacent” waters those without any 

hydrological connection to a traditional navigable water as well as those with only 

“intermittent or ephemeral surface connections” to a “tributary” of a traditional navigable 

water. 79 Fed. Reg. at 22207-08, 22210.536 This is clearly in direct conflict with the 

Rapanos plurality opinion. 

While the proposed rule purports to follow Justice Kennedy’s concurrence in Rapanos, 

the proposed definition of “adjacency” is also contrary to Justice Kennedy’s analysis. 

 

535 More specifically, included in the “definition” of “adjacency” are “neighboring” bodies of water, which are 

defined to include any body of water within the floodplain or the riparian area of a traditional navigable water, 

regardless of hydrological connection. See Proposed 33 C.F.R. § 328.(c)(1)-(4), 79 Fed. Reg. at 22263. The 

proposed rule also treats any water “bordering” a traditional navigable water as jurisdictional regardless of the 

presence of any barriers, including “river berms, beach dunes and the like.” Proposed § 328.3(c)(1), 79 Fed. Reg. at 

22263. Finally, the proposed rule applies the “adjacency” definition to waters that border even ephemeral streams 

and ditches, as all “tributaries” are deemed jurisdictional and all ephemeral streams and ditches are considered 

“tributaries.” Proposed 33 C.F.R. § 328.3(a)(5), (c)(5), 79 Fed. Reg. at 22263.

536 As explained above, this error is further compounded by the proposed definition of “tributary,” which includes 

streams and ditches that carry water intermittently and includes streams with natural breaks that ultimately do not 

have a hydrological connection to a traditional navigable water. 79 Fed. Reg. at 22201-02, 22206.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

315

Justice Kennedy’s opinion in Rapanos required evidence of a “significant nexus” 

between the particular waters at issue and the navigable water to which they were 

connected. At most, he suggested in dicta that “[w]here an adequate nexus is established 

for a particular wetland, it might be permissible, as a matter of administrative 

convenience or necessity,” for the Corps “to presume covered status for other comparable 

wetlands in the region.” 547 U.S. at 782. Dicta must be considered “in connection with 

the case in which those expressions are used,” and while dicta can be “respected,” it 

“ought not to control the judgment in a subsequent suit when the very point is presented 

for decision.” Cohens v. Virginia, 19 U.S. 264, 399 (1821).

Justice Kennedy expressly did not decide the issue of presuming status for any “water.” 

See 547 U.S. at 782 (the issue “is neither raised by these facts nor addressed by any 

agency regulation that accommodates the nexus requirement outlined here”). Justice 

Kennedy also did not suggest that the agencies could make an across-the-board 

determination that all wetlands “adjacent to” all tributaries have a significant nexus to 

traditional navigable waters, without regard to such factors as whether they are separated 

by berms, whether they are far from the navigable water, and whether their flow is small 

and intermittent. Cf. Rapanos Guidance at 7 & n.29 (treating wetlands as “per se” 

jurisdictional only when they are “not separated by uplands, a berm, dike, or similar 

feature” from a traditional navigable water).

Indeed, in Rapanos, Justice Kennedy voted to reverse the two court of appeals decisions 

holding that the “adjacent” wetlands were jurisdictional. 547 U.S. at 783-86. He 

expressly acknowledged that not all “adjacent” wetlands would be “waters of the United 

States.” Id. Justice Kennedy stated that in some instances wetlands might be adjacent to 

“drains, ditches, and streams remote from any navigable-in-fact water and carrying only 

minor water volumes to it,” so they would be “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.

Further, for the same reasons discussed above with respect to the proposed definition of 

“tributary,” the proposed definition of “adjacency” is also arbitrary because it is 

fundamentally inconsistent with the proposed rule’s definition of “significant nexus.” As 

is the case with the proposed definition of tributaries, the case-specific factors found by 

the proposed rule to be relevant to determining whether there is a “significant nexus” for 

“other waters” are entirely ignored when it comes to defining “adjacency” even though 

the agencies purport to make “significant nexus” the “touchstone” for jurisdiction. 79 

Fed. Reg. at 22192. All waters in an arbitrarily defined area are simply deemed to be 

“navigable waters” even when they would not, in fact, satisfy the very “significant 

nexus” definition that the agencies are now proposing. See Business Roundtable, 647 

F.3d at 1153 (vacating agency action as “arbitrary” because it was “internally 

inconsistent”); Gen. Chem. Corp., 817 F.2d at 846 (vacating agency action as “arbitrary 

and capricious” because it was “internally inconsistent and inadequately explained”).

The proposed rule provides no valid evidentiary basis for categorically considering all 

bodies of water “adjacent” to traditional navigable water to always have a substantial 

impact on the water quality of the distant traditional navigable waters. Cf. 79 Fed. Reg. at 

22210. As noted, included within the definition of “adjacency” are both isolated bodies of 

water with no hydrological connection to any traditional navigable water as well as 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

316

waters that are only indirectly and tenuously connected to traditional navigable waters 

through ephemeral streams or ditches with intermittent, negligible flow. These are the 

precisely the type of waters that Justice Kennedy concluded were the paradigm examples 

of waters having no “significant nexus” to traditional navigable waters. 547 U.S. at 781-

82.

Not only does the definition of “adjacency” run afoul of Rapanos, it also runs afoul of 

SWANCC. The definition of “adjacency” is based on a theory of “biological connectivity” 

that was squarely rejected in SWANCC.

537 As noted, the proposed sweeping definition of 

“adjacency” includes even isolated waters with no direct hydrological connection to a 

traditional navigable water. The primary justification offered by the proposed rule for 

finding a “significant nexus” in this situation is that the “uplands separating two waters 

may not act as a barrier to species that rely on and that regularly move between the two 

waters.” 79 Fed. Reg. at 22210. This is little more than a reformulation of the “Migratory 

Bird Rule” rejected in SWANCC. Indeed, in important respects, it is even broader that 

the “Migratory Bird Rule” because it would permit jurisdiction to be asserted on the basis 

of the travel patterns of any species and does not even consider whether disruption of 

those travel patterns has any impact on interstate commerce. Cf. SWANCC, 531 U.S. at 

163-67.

Even where “adjacency” is more appropriately established by hydrological connections 

(rather than definitional fiat), the proposed rule fails to provide reasonable notice of the 

type of “subsurface hydrologic connection or confined surface hydrologic connection,” 

79 Fed. Reg. at 22207, with a tributary that will render a water “adjacent” to the tributary 

and therefore jurisdictional. The proposed rule says the agencies will “also assess the 

distance between the water body and tributary in determining whether or not the water 

body is adjacent.” Id. However, the proposed rule provides no indication of how much 

distance is required to establish a jurisdictional connection; it simply acknowledges that 

“in specific circumstances, the distance” may be “sufficiently far that even the presence 

of a hydrologic connection may not support an agency determination.” Id. at 22208. 

Again, this fails to provide the meaningful guidance required for a valid exercise of 

agency rulemaking authority.

At the end of the day, “adjacency” would be determined on an ad hoc basis by the 

agencies using their “best professional judgment.” Id. at 22208. But this is no standard at 

all—let alone a standard that provides “the person of ordinary intelligence a reasonable 

opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 US 104, 108-

09 (1972).

Likewise, the proposed rule is arbitrary and capricious, and violates due process, because 

the agency has failed to identify key aspects of the proposed definition of “adjacency”

with necessary specificity, and because, the proposed rule is in direct contradiction to 

Supreme Court holdings that are specifically on point. (p. 17-21)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C. The agencies have determined that 

 

537 Indeed, it would go even further than the invalidated Migratory Bird Rule by considering whether isolated waters 

were relevant to the life cycle of a variety of animal species. See 77 Fed. Reg. at 22214.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

317

adjacent waters have a significant nexus and that determination was based physical 

functions and chemical functions, and on biological functions, only to the extent 

there are significant effects on the biological integrity of downstream traditional 

navigable waters, interstate waters, or the territorial seas. Preamble, III and 

Technical Support Document, II and VIII.

10.359 As noted, areas within a “floodplain” are included within the definition of “adjacency.” 

Proposed 33 C.F.R. § 328.3(c)(1)-(2), (4), 79 Fed. Reg. at 22263. The proposed rule, 

however, does not specify which floodplain will be used. Indeed, the proposed rule 

specifically says that the agencies may use a “floodplain associated with a higher 

frequency flood when determining adjacency for a larger stream” and “a floodplain 

associated with a lower frequency flood when determining adjacency for a smaller 

stream.” 79 Fed. Reg. at 22209.538

Just as a police officer cannot set the speed limit when writing a ticket, whatever leeway 

the agencies have to determine adjacency on the basis of a floodplain, the agencies 

cannot establish the standard they will use to determine the relevant floodplain after 

seeking to enforce the Clean Water Act. Announcement of the controlling legal standard 

after-the-fact is the quintessential violation of due process, and also violates the 

principles of notice and comment rulemaking.539

Regardless, there is no basis for the proposed rule’s broad conclusion that all waters in a 

floodplain must be jurisdictional. To the contrary, the fact that a body of water has a 

hydrological connection with a traditional navigable water only every few decades, once 

a century, or even less frequently is powerful evidence that there is no “significant 

nexus.” (p. 21-22)

Agency Response: In response to comments, the rule specifies a specific floodplain 

interval.

10.360 Similarly flawed is the proposed definition of “riparian area.” Although a key term in the 

proposed definitions—all waters in a “riparian area” of a traditional navigable water or 

tributary are ultimately considered to be “adjacent” and therefore “jurisdictional”—the 

definition is opaque: “The term riparian area means an area bordering a water where 

surface or subsurface hydrology directly influence the ecological processes and plant and 

animal community structure in that area. Riparian areas are transitional areas between 

aquatic and terrestrial ecosystems that influence the exchange of energy and materials 

between the ecosystems.” Proposed Rule 33 C.F.R. § 328.3(c)(3), 79 Fed. Reg. at 26663. 

No meaningful guidance in the proposed rule is given to what it means to “influence” the 

“ecological process and plant and animal community structure in the area” or when there 

would be an “exchange of energy and materials between . . . ecosystems.” Id. These 

vague terms have no well-established meanings, but were crafted by the agencies for the 

 

538 The potential breadth of this definition is extraordinary. For example, the flooding of the Mississippi and 

Missouri rivers in 1993 inundated more than 20 million acres in nine states. USGS, The Great Flood of 1993, 

http://mo.water.usgs.gov/Reports/1993-Flood/.

539 This is particularly true given the agencies’ acknowledgement that “there is no scientific consensus” on how to 

“define floodplain.” EPA, Questions and Answers—Waters of the U.S. Proposal 5, 

http://www2.epa.gov/sites/production/files/2014-09/documents/q_a_wotus.pdf.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

318

proposed rule. As such, they are not an appropriate exercise of rulemaking authority, and 

any enforcement action based on the Act’s purported coverage of “riparian” waters would 

violate due process.

Certainly, there is no basis for finding that all waters in a riparian area have a “significant 

nexus” to a traditional navigable water. By treating all waters in a riparian area as 

“adjacent,” the proposed definition would sweep in isolated waters with no hydrological 

connection to any traditional navigable water as well as waters that are only indirectly 

and tenuously connected to a traditional navigable water through ephemeral streams or 

ditches with intermittent, negligible flow. Cf. 547 U.S. at 781-82 (Kennedy, J., 

concurring) (providing these type of waters as examples of waters having no “significant 

nexus” to traditional navigable waters). Indeed, in this regard, the proposed definition is 

foreclosed by the Ninth Circuit’s decision in San Francisco Baykeeper that held that a 

pond 125 feet from a tributary of the San Francisco Bay—and thus certainly within the 

“riparian area’ of the tributary (and possibly its floodplain as well)540— had no 

“significant nexus” to navigable waters because there was no evidence of a connection 

that permitted water from the pond to travel to the navigable water. 481 F.3d at 708. (p. 

22-23)

Agency Response: The rule does not include a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provide that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule 

provides specific distance limits for “neighboring” waters. In addition, where the 

definition continues to use the term “floodplain,” it specifies the “100-year” 

floodplain and establishes a 1,500-foot maximum distance for neighboring waters in 

the rule. Preamble, IV. The rule is based on the agencies’ careful examination of the 

science and the law to make a determination of significant nexus for covered 

adjacent waters. Preamble, III and IV, and Technical Support Document, I and 

VIII.

Waters Advocacy Coalition (Doc. #17921.1)

10.361 The proposed rule’s regulation of adjacent waters expands CWA jurisdiction in 

contravention of the Rapanos plurality and Justice Kennedy’s opinion. The Riverside 

Bayview Homes Court recognized that the agencies may assert jurisdiction over wetlands 

actually abutting on a navigable-in-fact waterway, 474 U.S. at 135,541 and the current 

regulations provide for jurisdiction over adjacent wetlands. But the proposed rule, for the 

first time, extends jurisdiction to adjacent non-wetland waters, and expands the concept 

of adjacency beyond reason. 

The proposed rule extends jurisdiction to “[a]ll waters, including wetlands,” adjacent to a 

traditional navigable water, interstate water, territorial sea, impoundment, or tributary. 79 

Fed. Reg. at 22,263. The proposed rule does not explain what is considered a “water” that 

could be adjacent under this provision, but the preamble states that the term “water” is 

 

540 In fact, the evidence indicated that at high tide there was occasional flow of water from the navigable water into 

the pond (although not vice-versa). 481 F.3d at 708.

541 The Riverside Bayview Homes Court explicitly did not address “wetlands that are not adjacent to bodies of open 

water.” 474 U.S. at 131 n.8.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

319

used “in categorical reference to rivers, streams, ditches, wetlands, ponds, lakes, playas, 

and other types of natural or man-made aquatic systems.” Id. at 22,191 n.3. The preamble 

further explains that the term “water” “do[es] not refer solely to the water contained in 

these aquatic systems, but to the system as a whole including associated chemical, 

physical, and biological features.” Id. This explanation indicates that the agencies intend 

to treat essentially any feature that is wet as a “water” that could be jurisdictional by 

virtue of its adjacency. 

The term “adjacent” means “bordering, contiguous, or neighboring.” Id. at 22,263. This 

definition has not changed from the current regulations, but the proposed rule vastly 

expands the concept of “neighboring.” Under the proposed rule, waters and wetlands are 

“neighboring” (and therefore regulable under (a)(6)) if they are “located within the 

riparian area or floodplain” of a traditional navigable water, interstate water, territorial 

sea, impoundment, or tributary, or if they have “a shallow subsurface hydrologic 

connection or confined surface hydrologic connection to such a jurisdictional water.” Id. 

The proposed rule does not provide a limit for the extent of riparian areas or floodplains, 

but leaves it to the agencies’ “best professional judgment” to determine the appropriate 

area or flood interval. Id. at 22,208. The proposal also leaves the application of the term 

“shallow subsurface hydrologic connection” to the best professional judgment of the 

agencies. Id. Building on this expansive concept of “neighboring,” the proposed rule 

determines, categorically, that all “adjacent waters” have a significant nexus, and allows 

for jurisdiction over all waters and wetlands in undefined floodplain and riparian areas or 

that have a subsurface connection to jurisdictional waters. This interpretation is a blatant 

departure from the plain meaning of “adjacent”542 and is a far cry from the actually 

abutting wetlands found to be adjacent in Riverside Bayview Homes.

543

The proposed rule’s inclusion of non-wetlands in this “adjacent waters” category is an 

impermissible expansion of agency jurisdiction. Justice Kennedy’s Rapanos opinion 

applied only to wetlands. And in Baykeeper, the U.S. Court of Appeals for the Ninth 

Circuit held that adjacent non-wetlands are not subject to CWA regulation. 481 F.3d at 

709. At issue in Baykeeper was whether the agencies had CWA jurisdiction over a nonnavigable pond that Baykeeper argued was “adjacent” to the Mowry Slough, a navigable 

tributary of the San Francisco Bay. Id. at 706. The court rejected the agencies’ assertion 

of jurisdiction over the non-navigable pond, explaining that nothing in SWANCC or 

Rapanos supports the assertion of jurisdiction over non-wetlands based on adjacency to 

navigable waters. Id. at 707. With their proposed category of “adjacent waters,” the 

agencies again attempt to extend the concept of jurisdiction based on adjacency to nonwetlands. The agencies justify the assertion of jurisdiction over “adjacent” non-wetlands 

by claiming that, “Prior to SWANCC, adjacent nonwetland waters were often 

jurisdictional under the ‘other waters’” provision. 79 Fed. Reg. at 22,207. Although this 

may be true, the SWANCC Court rejected such a practice and held that regulation of 

 

542 See Summit Petroleum Corp., 690 F.3d 733, 744 (6th Cir. 2010) (rejecting EPA’s position that “activities can be 

adjacent so long as they are functionally related, irrespective of the distance that separates them” because that 

position “undermines the plain meaning of the text [‘adjacent’], which demands, by definition, that would-be 

aggregated facilities have physical proximity”). 

543 See Rapanos, 547 U.S. at 748 (plurality) (“‘[A]djacent’ as used in Riverside Bayview is not ambiguous between 

“physically abutting” and merely “nearby.”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

320

these isolated waters was beyond the scope of the agencies’ authority under the Act. 

SWANCC, 531 U.S. at 168. The agencies may not use this rulemaking to recapture waters 

that the Supreme Court has ruled to be outside CWA jurisdiction. 

In addition, the agencies’ adjacent waters standard is problematic because it allows for 

jurisdiction based on “adjacency” to drains, ditches, and streams remote from navigable 

waters and carrying only minor volumes of flow. Justice Kennedy’s opinion does not 

allow for jurisdiction based on “adjacency” to features that are not “major tributaries.” 

Rapanos, 547 U.S. at 780. Justice Kennedy explicitly rejected “the Corps’ theory of 

jurisdiction in these consolidated cases – adjacency to tributaries, however remote and 

insubstantial . . .” Id. With respect to the non-navigable ditch at issue in Carabell, Justice 

Kennedy’s concurrence stated, “mere adjacency to a tributary of this sort is insufficient; a 

similar ditch could just as well be located many miles from any navigable-in-fact water 

and carry only insubstantial flow toward it.” Id. at 786. In such situations, he found that 

“a more specific inquiry” was necessary. Id. Under the proposed rule, wetlands (and nonwetlands) that are adjacent to such remote and insubstantial tributaries (including 

jurisdictional ditches) would be per se jurisdictional. Asserting per se jurisdiction over 

any water or wetland within the floodplain or riparian area of a water of the United States 

directly contradicts Justice Kennedy’s opinion. 

Nor does the Rapanos plurality allow for such an expansive assertion of jurisdiction over 

“adjacent waters.” The plurality found that “only those wetlands with a continuous 

surface connection to bodies that are ‘waters of the United States’ in their own right, so 

that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such

waters and covered by the Act.” Rapanos, 547 U.S. at 742. Thus, the plurality explained, 

“Wetlands with only an intermittent, physically remote hydrologic connection to ‘waters 

of the United States’ do not implicate the boundary-drawing problem of Riverside 

Bayview, and thus lack the necessary connection to covered waters that we described as a 

‘significant nexus’ in SWANCC.” Id. Moreover, the agencies do not state what floodplain 

interval is intended in their proposed standard, but a commonly defined floodplain 

mapped by FEMA is the 100-year floodplain. If that is what is intended, this goes far 

beyond the ruling in Rapanos. In criticizing the overbreadth of the Corps’ jurisdictional 

determinations, as an example, the Rapanos plurality specifically cited the practice of 

some Corps districts to assert jurisdiction over wetlands “if they lie within the ‘100-year 

floodplain’ of a body of water – that is, they are connected to the navigable water by 

flooding, on average, once every 100 years.” Id. at 728. Ignoring these limits imposed by 

the Rapanos plurality, the proposed rule would allow for jurisdiction over waters, 

including wetlands, based on location within the same floodplain or riparian area as 

nonnavigable, remote features now classified as tributaries. This goes well beyond what 

the Rapanos plurality allowed and would codify practices specifically rejected by the 

Rapanos Justices. 

With the proposed rule’s new definition of “neighboring” and extension of the adjacency 

concept to non-wetlands, the agencies are attempting to broaden their CWA jurisdiction 

in a manner that is wholly inconsistent with the Rapanos plurality’s and Justice 

Kennedy’s opinions, which squarely rejected the agencies’ “any hydrological 

connection” standard and the agencies’ attempts to regulate wetlands based on adjacency 

to non-navigable tributaries. Although the proposed regulation of “adjacent waters” may 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

321

result in more certainty (because it automatically covers all waters in a floodplain or 

riparian area or with a shallow subsurface hydrologic connection to jurisdictional waters), 

the agencies cannot regulate in conflict with Rapanos and beyond the scope of their 

CWA authority in order to gain certainty. (p. 103-105)

Agency Response: The agencies disagree with the commenter’s assertion that by 

changing “adjacent wetlands” to “adjacent waters,” they have expanded the scope 

of the definition of “waters of the United States.” Technical Support Document, I. 

The rule does not include a provision defining “neighboring” based on a surface or 

subsurface hydrologic connection or provide that all waters within “floodplains,” 

and “riparian areas” are “adjacent.” Instead, the rule provides specific distance 

limits for “neighboring” waters. In addition, where the definition continues to use 

the term “floodplain,” it specifies the “100-year” floodplain. Preamble, IV. While 

the plurality questioned the use of the 100 year floodplain, the dissent did not, and 

for purposes of adjacency the agencies have established that a water must be located 

in the 100 year flood plain and within 1500 foot of the ordinary high water mark.

The rule is consistent with the statute and the caselaw. Technical Support 

Document, I.A. and C.

National Association of Home Builders (Doc. #19540)

10.362 The concept of “adjacent” has been unlawfully modified and expanded to include all 

waters. The Agencies state that the term adjacent means “bordering, contiguous or 

neighboring. Waters, including wetlands, separated from other waters of the United 

States by man-made dikes or barriers, natural river berms, beach dunes and the like are 

‘adjacent waters,’”544 and that “all waters, including wetlands, adjacent to a traditional 

navigable water, interstate water, the territorial seas, impoundments or tributaries”545are 

jurisdictional by rule. The concept of “adjacent waters” is new and represents an unlawful 

modification and expansion of the term “waters of the United States.”

Operating under the 2008 Rapanos Guidance, the Corps currently asserts jurisdiction 

over wetlands adjacent to traditional navigable waters in accordance with 1986 Corps 

regulations.546 Jurisdictional authority over adjacent wetlands stems from Riverside 

Bayview and Rapanos, in which the jurisdictional status of wetlands adjacent to 

traditional navigable waters and tributaries of traditional navigable waters was in 

question. At issue in Riverside Bayview was the jurisdictional status of wetlands that 

actually abut Black Creek, a traditional navigable water and tributary of Lake St. Clair in 

Macomb County, Michigan. The Court ruled unanimously that the Corps has authority to 

“require permits for the discharge of fill material into wetlands adjacent to ‘waters of the 

United States.’”547 Additionally, all Justices agreed that “a definition of ‘waters of the 

United States’ encompassing all wetlands adjacent to other bodies of water over which 

the Corps has jurisdiction is a permissible interpretation of the [Clean Water] Act.”548

 

544 79 Fed. Reg. at 22,268.

545 Id. at 22,193. 

546 2008 Rapanos Guidance at 1; 33 C.F.R. 328.3(c).

547 Riverside Bayview, 474 U.S. at 139. 

548 Id. at 135. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

322

Whereas the Supreme Court considered the jurisdictional status of wetlands adjacent to 

navigable waters in Riverside Bayview, it was not until Rapanos that the Court opined on 

the jurisdictional status of wetlands adjacent to non-navigable waters. Four justices, in a 

plurality opinion authored by Justice Scalia, rejected the argument that the term “waters 

of the United States” is limited to only those waters that are navigable in the traditional 

sense and their abutting wetlands. However, the plurality concluded that the Agencies’ 

regulatory authority should extend only to “relatively permanent, standing or 

continuously flowing bodies of water”549 connected to traditional navigable waters, and 

to “wetlands with a continuous surface connection to” such relatively permanent 

waters.550

Justice Kennedy did not join the plurality’s opinion, but instead authored an opinion 

concurring in the judgment vacating and remanding the cases to the Sixth Circuit Court 

of Appeals. Justice Kennedy agreed with the plurality that the term “waters of the United 

States” extends beyond waterbodies that are traditionally considered navigable, but found 

the plurality's interpretation of the scope of the CWA to be “inconsistent with the Act's 

text, structure, and purpose[,]” and instead proposed a different standard for evaluating 

CWA jurisdiction over wetlands.551 Justice Kennedy concluded that wetlands are “waters 

of the United States” “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.’ When, in 

contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall 

outside the zone fairly encompassed by the statutory term ‘navigable waters.’”552

Clearly, at issue in both Riverside Bayview and Rapanos was the jurisdiction of adjacent 

wetlands – not adjacent rivers, not adjacent streams, not adjacent seeps, not adjacent 

ponds, not adjacent lakes, not adjacent puddles, not adjacent swales...not adjacent 

waters. More recently, in San Francisco Baykeeper v. Cargill Salt Division the U.S. 

Court of Appeals for the Ninth Circuit held that adjacent non-wetlands are not subject to 

CWA regulation.553 In fact, since 1986 “wetlands [not waters] adjacent to waters” have 

been defined as “waters of the United States.”554 And yet, in the proposed rule, the 

Agencies have disregarded critical case law and defined “all waters, including wetlands, 

adjacent to a water identified in paragraphs (a)(1) through (5)” as “waters of the United 

States.”555 This is an unlawful and expansive modification of the jurisdictional scope of 

the CWA and not supported by case law. The Agencies must rewrite (a)(6) to read “All 

wetlands adjacent to a water identified in paragraph (a)(1) through (5) of this section.” (p. 

74-75)

Agency Response: The rule is consistent with caselaw. Technical Support 

Document, I.C. 

 

549 Rapanos, 547 U.S. at 739.

550 Id. at 742. 

551 See id. at 779; Id. at 776.

552 Id. at 780. 

553 San Francisco Baykeeper v. Cargill Salt Division, 481 F.3d 700 (9th Cir. 2007).

554 33 C.F.R. § 328.3(c).

555 79 Fed. Reg. at 22263. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

323

10.363 The concept of “adjacent” has been unlawfully modified and expanded with the addition 

of the over broad definition of “neighboring.” Under the existing 2008 Rapanos

Guidance, the term “adjacent” means “bordering, contiguous, or neighboring.”556 Indeed, 

this definition has remained unchanged since regulations were penned in 1986. With the 

proposed rule, however, the Agencies have modified and expanded the definition of 

adjacent by subsequently defining the term “neighboring” within the adjacent definition. 

According to the proposed rule the term neighboring “for purposes of the term 

‘adjacent’...includes waters located within the riparian area or floodplain of a water 

identified in paragraphs (a)(1) through (5)...or waters with a shallow subsurface 

hydrologic connection or confined surface hydrologic connection to such a jurisdictional 

water.”557

This expanded definition of “adjacent” was never contemplated in the CWA and is not 

permitted by prior case law. In Riverside Bayview, the respondents’ property was “part of 

a wetland that actually abuts a navigable waterway.”558 The Supreme Court “found that 

Congress’ concern for the protection of water quality and aquatic ecosystems indicated its 

intent to regulate wetlands ‘inseparably bound up with the ‘waters’ of the United States” 

and unanimously agreed the respondent in Riverside Bayview was required to have a 

permit.559 At issue in SWANCC was the jurisdictional status of isolated ponds, and the 

Court, recounting Riverside Bayview stated, “[t]he Court expressed no opinion on the 

question of the Corps' authority to regulate wetlands not adjacent to open water [in 

Riverside Bayview], and the statute's text will not allow extension of the Corps' 

jurisdiction to such wetlands here.”560 Indeed, the Court recognized that the wetlands in 

Riverside Bayview “actually abut[ted]” and were “inseparably bound up with” Black 

Creek and were thus adjacent and jurisdictional. However, the Court held that the isolated 

ponds in SWANCC were not adjacent to a traditional navigable water and not 

jurisdictional, stating, “In order to rule for the respondents 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.”561 Clearly, SWANCC revealed 

that the jurisdictional scope of the CWA is not without limit. 

What’s more, in Rapanos the plurality noted, “because SWANCC did not overrule 

Riverside Bayview, the Corps continues to assert jurisdiction over waters ‘neighboring’ 

traditional navigable waters and their tributaries.”562 Here, the Rapanos plurality 

characterized the wetlands that “actually abut” and were “inseparably bound up with the 

‘waters’ of the United States” in Riverside Bayview with the term “navigable.” Indeed, to 

extend the meaning of “adjacent” by expanding the definition of “navigable” to include 

all waters in vaguely defined floodplains and riparian areas as well as those waters 

connected to any (a)(1) through (5) water by the slightest shallow subsurface hydrologic 

connection or confined surface hydrologic connection would stretch the definition of 

 

556 2008 Rapanos Guidance at 5.

557 79 Fed. Reg. at 22,263.

558 Riverside Bayview, 474 U.S. at 135.

559 SWANCC, 531 U.S. at 167, citing Riverside Bayview, 474 U.S. at 134.

560 Id. at 160. 

561 Id. at 168. 

562 Rapanos, 547 U.S. at 726. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

324

“adjacent” beyond parody. The Supreme Court has already shut down such sweeping 

assertion of federal authority in SWANCC and Rapanos. That the Agencies would now 

try to assert categorical jurisdiction over so-called “neighboring” waters shows their 

complete disregard for the highest court in the land. (p. 75-76)

Agency Response: The rule does not include a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provide that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule 

provides specific distance limits for “neighboring” waters. Preamble, IV. The rule is 

consistent with the statute and the caselaw. Technical Support Document, I.A. and 

C. The rule is based on the agencies’ careful examination of the science and the law 

to make a determination of significant nexus for covered adjacent waters. Preamble, 

III and IV, and Technical Support Document, I and VIII.

10.364 Under the proposed definition of “adjacent waters,” all waters, including wetlands, that 

happen to fall within vaguely defined riparian areas and floodplains of all (a)(1) through 

(5) waters are per se jurisdictional. This will result in a dramatic expansion of waters 

under the Agencies’ control. Additionally, vague definitions of “riparian area” and 

“floodplain” will result in unpredictable and inconsistent application of the Act, leading 

to increased regulatory confusion. Finally, the science to support categorical jurisdiction 

over all waters and wetlands within riparian areas and floodplains of (a)(1) through (5) 

waters is sorely lacking. 

Even though the Agencies have not defined the floodplain parameters they will use to 

assert jurisdiction, it is clear that millions of acres of land could be affected. In addition to 

the regulatory uncertainty associated with the definitions, floodplains can be massive, 

extending miles from the banks of large rivers and coastlines. For instance, the floodplain 

of the Mississippi River south of St. Louis, Missouri, widens to a distance of nearly 50 

miles.563 Further south, the Lower Mississippi Alluvial Valley (Fig. 9) covers some 24 

million acres (roughly the size of the state of Indiana) of relatively flat, weakly dissected 

alluvial plain, comprised of natural levees, basins and flats, point bar formations, terraces, 

tributary floodplains, and depressional wetlands.564 Even the 100-year floodplains 

mapped by FEMA illustrate that wetlands, ponds, lakes, and headwater streams that 

could be considered “adjacent” to traditional navigable waters can be separated from one 

another by tens of miles (Fig. 10). By categorically defining all waters that lie within the 

floodplain as “neighboring” and “adjacent,” the Agencies have significantly expanded the 

definition of “waters of the United States.” This is absurd and unlawfully and 

inexplicably expands the concept of “adjacent” as it pertains to CWA case law (e.g., 

Riverside Bayview and Rapanos).

Additionally, the proposed rule defines any water within the riparian area of an (a)(1) 

through (5) water as jurisdictional by rule. Yet, because riparian area refers to land –

 

563 Fremling, C. R., J. L. Rasmussen, R. E. Sparks, S. P. Cobb, C. F. Bryan, and T. O. Claflin. 1989. Mississippi 

River fisheries: A case history. Pages 309–351 in D. P. Dodge, editor. Proceedings of the International Large River 

Symposium. Canadian Special Publication of Fisheries and Aquatic Sciences 106, Ottawa, Ontario.

564 Stanturf, J.A., E.S. Gardiner, P.B. Hamel, M.S. Devall, T.D. Leininger, and M.E. Warren. 2000. Restoring 

bottomland hardwood ecosystems in the Lower Mississippi Alluvial Valley. Journal of Forestry. 98(8):10-16.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

325

“[r]iparian areas are transitional areas between aquatic and terrestrial ecosystems...”

565

 –

it is not clear what areas are being targeted. Of particular concern is the reasoning within 

the draft Connectivity Report, which goes so far as to cite studies of soil water in the 

riparian zone. For example, work by Dr. Tracie-Lynn Nadeau and Dr. Mark Rains notes 

“much of the temporal [hydrologic] storage [in stream networks] is in upland [riparian] 

soils.”566 Do the Agencies intend to assert jurisdiction over riparian areas based on soil 

water found therein? Is water within riparian area soils, or floodplain soils for that matter, 

a water of the United States? NAHB thinks not, but the Agencies’ direction is not so 

clear. 

Figure 9: Geographic extent of Mississippi alluvial valley.567

 

565 79 Fed. Reg. at 22,263. 

566Nadeau, T-L, and M.C. Rains. 2007. Hydrological connectivity between headwater streams and downstream 

waters: how science can inform policy. Journal of the American Water Resources Association. Vol. 43: 118-133.

567 Source: Twedt, D., D. Pashley, C. Hunter, A. Mueller, C. Brown, B. Ford. September 1999. Partners in Flight: 

Bird Conservation Plan for the Mississippi Alluvial Valley, available at 

http://www.partnersinflight.org/bcps/plan/MAV_plan.html. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

326

Figure 10: FEMA 100-yr Flood Zone, Miami-Dade County, Florida (p. 76-79)

Agency Response: The rule does not include a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provide that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule 

provides specific distance limits for “neighboring” waters. In addition, where the 

definition continues to use the term “floodplain,” it specifies the “100-year” 

floodplain and establishes a 1,500-foot maximum distance for neighboring waters in 

the rule. Preamble, IV.

10.365 Under the proposed rule, the Agencies will assert categorical jurisdiction over all waters 

located within the riparian area or floodplain of any traditional navigable water, interstate 

water, territorial sea, impoundment, or tributary. For the first time, the Agencies provide 

regulatory definitions for “riparian area” and “floodplain.” According to the proposed 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

327

rule, riparian area means “an area bordering a water where surface or subsurface 

hydrology directly influence the ecological processes and plant and animal community 

structure in that area. Riparian areas are transitional areas between aquatic and terrestrial 

ecosystems that influence the exchange of energy and materials between those 

ecosystems.”568 Floodplain is defined as “an area bordering inland or coastal waters that 

was formed by sediment deposition from such water under present climatic conditions 

and is inundated during periods of moderate to high water flows.”569

The new definitions for “riparian area” and “floodplain” will create confusion and 

increase regulatory uncertainty because they are purely scientific in nature and will be 

applied based on the Agencies’ “best professional judgment.”570 What’s more, key terms 

within the riparian area and floodplain definitions, including “ecological processes,” 

“plant and animal community structure,” “exchange of energy and materials,” “present 

climatic conditions” and “moderate to high water flows” are left undefined. A landowner 

will not be able to look at a map and objectively know the extent of the “riparian area” or 

“floodplain” on his property or a property he is considering purchasing. Rather, he will 

have to wait until a field inspector from the Corps walks the property and subjectively 

determines the reach of the riparian area and/or floodplain. Definitions based on science 

rather than engineering and maps will lead to increased uncertainty about what waters are 

and are not “neighboring” and, in turn, are considered “adjacent waters” subject to CWA 

jurisdiction.

Adding to the confusion, the Agencies cannot seem to make up their minds. At one point 

in the preamble, the Agencies appear to embrace the flood frequency interval as a basis 

for identifying the floodplain:

There is, however, variability in the size of the floodplain, which is dependent on 

factors such as the flooding frequency being considered, size of the tributary, and 

topography. As a general matter, large tributaries in low gradient topography will 

generally have large floodplains (e.g., the lower Mississippi Delta) whereas small 

headwater streams located in steep gradients will have the smallest floodplains. It 

may thus be appropriate for the agencies to consider a floodplain associated with 

a lower frequency flood when determining adjacency for a smaller stream, and to 

consider a floodplain associated with a higher frequency flood when determining 

adjacency for a larger stream. When determining whether a water is located in a 

floodplain, the agencies will use best professional judgment to determine which 

flood interval to use (for example, 10 to 20 year flood interval zone). The 

agencies request comment on whether the rule text should provide greater 

specificity with regard to how the agencies will determine if a water is located in 

the floodplain of a jurisdictional water.571

But then reject the use of a flood interval, stating it is not ecologically based: 

 

568 79 Fed. Reg. at 22,263. 

569 Id. at 22,263.

570 Id. at 22,208.

571 Id. at 22,209. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

328

It should be noted that ‘floodplain’ as defined in today’s proposed rule does not 

necessarily equate to the 100-year floodplain as defined by the Federal 

Emergency Management Agency (FEMA). However, the FEMA defined 

floodplain may often coincide with the current definition proposed in this rule. 

Flood insurance rate maps are based on the probability of a flood event occurring 

(e.g., 100-year floods have a 1% probability of occurring in a given year or 500 

year-floods have a 0.2% probability of occurring in a particular year). Flood 

insurance rate maps are not based on an ecological definition of the term 

‘floodplain,’ and therefore may not be appropriate for identifying adjacent 

wetlands and waters for the purposes of CWA jurisdiction.”572

The definitions of “riparian area” and “floodplain” should be based on engineering 

standards and include measurable parameters, both spatial and temporal, in order for 

these terms to have meaning in a practical sense and to be applied as consistently as 

possible. 

EPA’s SAB has voiced concerns about the vague floodplain definition as well. SAB 

panel member Dr. Emily Bernhardt commented that the Agencies should be “more 

explicit about how a floodplain . . . [is] defined” as this would “allow for more consistent 

application of the rule.”573 Dr. Michael Josselyn also voiced concerns about the 

floodplain definition: 

By definition, all wetlands within the floodplain would be considered 

jurisdictional under the Proposed Rule. However, there is ambiguity in the 

definition of floodplain within the Draft Science Report and the Proposed Rule—

both of which state that it is an area of sediment deposition and subject to 

flooding during moderate to high flood events. However, at present, there is no 

definition of what that flooding frequency means except the brief statement in the 

Proposed Rule that the agencies will use Best Professional Judgment and 

generally use something between a 10 and 20 year flood event. In another section, 

the Proposed Rule also states that ‘floodplain as defined in today’s proposed rule 

does not necessarily equate to the 100-year floodplain as defined by the Federal 

Emergency Management Agency (FEMA). However, the FEMA defined 

floodplain may often coincide with the current definition proposed in this rule.’ 

Thus, there is considerable confusion over what the Proposed Rule is stating 

would be included within the category of floodplain wetlands subject to 

jurisdiction.574

NAHB agrees.

Adding to the challenge of identifying the extent of any given floodplain, beyond the 

active floodplain may exist abandoned terraces. These abandoned terraces, typically at 

higher elevations, are a consequence of channel gradient changes resulting from either 

decreases or increases in sediment loads. These changes isolate previous channels and 

floodplains above the newly established channel. In arid stream systems, abandoned 

 

572 Id. at 22,236. 

573 8/14/14 SAB Comments on the Proposed Rule at 15. 

574 Id. at 27.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

329

terraces sometimes are easy to distinguish since they are high above the active channel. 

However, in systems with limited relief it may be difficult to distinguish the active 

floodplain.575 In these cases, Corps staff could improperly delineate the floodplain well 

beyond its true extent, thereby erroneously classifying any waters that happen to fall 

within the expanded limits as “waters of the United States.” 

The vague definitions of riparian area and floodplain do not increase clarity of the 

jurisdictional scope of the CWA. As written, these definitions are inadequate and will 

lead to regulatory confusion. The Agencies are urged to remove the definition of 

“neighboring” and the associated “floodplain,” “riparian area,” “shallow subsurface 

hydrologic connection,” and “confined surface hydrologic connection” terms and 

definitions from the proposed rule and maintain the existing definition of “adjacent.” This 

will reduce regulatory uncertainty while simultaneously complying with congressional 

intent, case law, and existing guidance. 

The Agencies claim the proposed rule is supported by conclusions from the draft 

Connectivity Report. Although the proposed rule would assert categorical jurisdiction 

over “waters located within the riparian area or floodplain” of a traditional navigable 

water, interstate water, territorial sea, impoundment, or tributary, the portion of the draft 

Connectivity Report addressing the impact of riparian areas and floodplains on 

downstream waters is incomplete, as it highlights findings from studies of riparian areas 

and floodplains, not necessarily wetlands or waters therein. Indeed, the authors of the 

draft Connectivity Report admit, “Although ample literature is available on riparian and 

floodplain wetlands...most papers on riparian areas and floodplains do not specify 

whether the area is a wetland...This situation creates a dilemma, because limiting our 

literature review to papers that explicitly describe the area as a wetland would exclude a 

major portion of this body of literature and greatly restrict our discussion of wetland 

science. Alternatively, if we include papers that do not explicitly classify the area as a 

wetland, we could mistakenly incorporate results that are relevant only to upland riparian 

areas. Our response to this dilemma was to survey the riparian literature broadly and 

include any results and conclusions that we judged were pertinent to riparian/floodplain 

wetlands.”576 This is problematic for two reasons. First, the draft Connectivity Report 

draws conclusions about the ecological and hydrological importance of wetlands within 

the riparian area and floodplain on downstream waters when the studies claimed to 

support these conclusions may or may not even include wetlands. Relying on such studies 

is irresponsible and fails to meet even basic requirements of scientific integrity.

Second, the proposed rule will assert categorical jurisdiction over waters, including 

wetlands, in the riparian areas and floodplains of traditional navigable waters, interstate 

waters, territorial seas and impoundments and tributaries of those waters when the draft 

Connectivity Report only presents conclusions from studies of riparian areas and 

floodplains that may have included wetlands, not waters. This is similarly suspect and 

even SAB members have voiced concerns over the categorical assertion of jurisdiction 

over all waters in the riparian area and floodplain. SAB panel member Dr. Mazeika 

 

575 Dunne, T., and L.B. Leopold. Water in Environmental Planning. New York: W.H. Freeman and Co., 1978. Print.

576 Draft Connectivity Report at 5-3, 5-5.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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Sullivan commented, “Inasmuch as I understand that the agencies are seeking to reduce 

the burden of many case-specific situations, caution is warranted in some cases when the 

science may not be available to adequately determine where jurisdiction should or should 

not be asserted . . . I do not believe that current scientific evidence supports asserting 

jurisdiction over adjacent waters only if they are located in the floodplain or riparian 

zone.”577 Clearly, the scientific evidence to support the categorical jurisdiction of all 

waters within riparian areas and floodplains of (a)(1) through (5) waters is insufficient.

Furthermore, although hydrologic connectivity between wetlands within the floodplain 

and riparian area varies as a function of distance, the Agencies propose to assert 

jurisdiction over all waters within these vaguely defined zones without regard to their 

distance to an (a)(1) through (5) water. The draft Connectivity Report, indeed, states, 

“connectivity with the river will generally be higher for riparian/floodplain wetlands 

located near the river’s edge compared with riparian/floodplain wetlands occurring near 

the floodplain edge.”578 While this would appear to be fairly straight forward, the 

Agencies disregard this simple fact by treating all waters in the riparian area and 

floodplain the same: categorically jurisdictional. (p. 77-83)

Agency Response: The rule does not include a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provide that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule 

provides specific distance limits for “neighboring” waters. In addition, where the 

definition continues to use the term “floodplain,” it specifies the “100-year” 

floodplain and establishes a 1,500-foot maximum distance for neighboring waters in 

the rule. The Preamble discusses the tools the agencies will use to identify the 100-

year floodplain. While the definition does not include a provision defining 

“neighboring” based on a surface hydrologic connection, waters with a “confined 

surface hydrologic connection” may be adjacent where they are bordering, 

contiguous, or neighboring an (a)(1) through (a)(5) water and such a connection 

may be a factor considered in a case-specific significant nexus determination.

Preamble, IV. The rule is based on the agencies’ careful examination of the science 

and the law to make a determination of significant nexus for covered adjacent 

waters. Preamble, III and IV, and Technical Support Document, I and VIII.

10.366 The Agencies define any water connected to an (a)(1) through (5) water by a “shallow 

subsurface hydrologic connection” or a “confined surface hydrologic connection” as 

“adjacent” and therefore per se jurisdictional. This assertion runs afoul of the Supreme 

Court decisions, will result in increased regulatory uncertainty, and is unsupported by 

science. Additionally, the Agencies fail to define any methods to identify or quantify a 

“shallow subsurface hydrologic connection.” And, while the proposed rule states that 

shallow subsurface hydrologic connections are themselves not “waters of the United 

States,” they can be used to assert jurisdiction over those waters they connect. This is, 

indeed, a significant overreach. 

 

577 8/14/14 SAB Comments on the Proposed Rule at 87.

578 Draft Connectivity Report at 3-42, 3-43.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

331

Regulating “adjacent waters” based upon the mere presence of a “shallow subsurface 

hydrologic connection” or “confined surface hydrologic connection” to an (a)(1) through 

(5) water is inconsistent with Rapanos. In its review of the draft Connectivity Report, 

EPA’s SAB notes the large spatial and temporal variability in hydrologic flow paths, 

including subsurface flows.579 According to the SAB, spatial and temporal scales are 

“critical aspects of connectivity and its role in maintaining the chemical, physical, and 

biological integrity of downgradient waters.”580 This sentiment rightly echoes Justice 

Kennedy’s assertion that not all hydrologic connections are significant. Yet, the Agencies 

have ignored both the science and the case law that they argue support the proposed rule 

by requiring only the presence of a shallow subsurface or confined surface hydrologic 

connection between a water and an adjacent water to assert jurisdiction by rule.

While a subsurface or confined surface hydrologic connection may indeed occur between 

a wetland outside of the floodplain or riparian area and an (a)(1) through (5) water, the 

connection may be so “remote and insubstantial” as to fail Justice Kennedy’s “significant 

nexus” test. Without defining critical subsurface or confined surface flow parameters, 

including those governed in part by topographic slope, distance between the waters in 

question, and – in the case of subsurface flows – the hydrologic connectivity of the soils 

through which the water passes, the Agencies’ vague definitions of “shallow subsurface 

hydrologic connection” and “confined surface hydrologic connection” provide them 

jurisdiction over any water on the sole basis of a mere hydrologic connection. Both the 

plurality and Justice Kennedy demanded more in Rapanos. 

The Agencies fail to adequately define the new “shallow subsurface hydrologic 

connection” and “confined surface hydrologic connection” concepts, thereby generating 

increased regulatory uncertainty. The Agencies assert that a water is “neighboring” and, 

in turn, “adjacent” and jurisdictional by rule if it is connected to a jurisdictional water via 

a “shallow subsurface hydrologic connection” or a “confined surface hydrologic 

connection.” Although the preamble states “a shallow subsurface hydrologic connection 

is lateral water flow through a shallow subsurface layer, such as can be found in steeply 

sloping areas with shallow soils and soils with a restrictive horizon that prevents vertical 

water flow, or in karst systems,”581 a formal definition is not provided. Additionally, the 

proposal fails to adequately define “confined surface hydrologic connection,” only stating 

“confined surface connections consist of permanent, intermittent, or ephemeral surface 

connections through directional flowpaths...A directional flowpath is a path where water 

flows repeatedly...”

582 If water flows downhill (i.e., along a flowpath) after every rainfall 

(i.e., repeatedly) and across any otherwise dry land surface to an (a)(1) through (5) water, 

would that flowpath be considered a “confined surface hydrologic connection” that could 

be used to assert jurisdiction over any wetland, pond, or stream? Indeed, the “confined 

surface hydrologic connection” definition is vague at best; the regulated community can 

only assume the term means something less than “tributary.”

 

579 SAB Final Review of the Draft Connectivity Report, Figure 1 at 22.

580 Id. at 21.

581 79 Fed. Reg. at 22,242. 

582 Id. at 22,208.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

332

Although the Agencies claim the proposed rule will clarify what waters are protected 

under the CWA, regulating waters based upon connections that cannot be seen does not 

provide clarity. Before NAHB’s members purchase a parcel of land, they and/or their 

environmental consultant, engineer, or other team members walk the property to identify 

wetlands, streams, and other water features that may be subject to CWA Section 404 

permits. In instances where a large percentage of a property falls under the jurisdiction of 

the CWA, a land developer or builder might not make the purchase. Most surface water 

features including wetlands, ponds, lakes, and streams can be spotted while walking a 

property. Subsurface water features, however, cannot be readily seen. If a property has 

unseen subsurface hydrologic connections that render additional waters on that site 

jurisdictional, the builder/developer might have taken on a financial burden due to the 

permit, mitigation, and project delay costs he had no ability to anticipate. NAHB 

members, as well as all other regulated industry personnel, cannot identify waters they 

can’t see.

Beyond the lack of clarity regarding the very existence of shallow subsurface hydrologic 

connections, critical parameters associated with these out-of-sight flowpaths are left 

undefined thereby creating additional uncertainties. For example, the depth at which 

“shallow subsurface” hydrologic connections become “groundwater” connections is not 

defined. This is crucial because shallow subsurface hydrologic connections can be used 

to determine jurisdiction of an“adjacent” water whereas groundwater connections “do not 

satisfy the requirement for adjacency.”583 Currently, only a vague, qualitative distinction 

between shallow subsurface water and groundwater is provided: “Shallow subsurface 

connections are distinct from deeper groundwater connections...in that the former exhibit 

a direct connection to the water found on the surface in wetlands and open waters.”584 

Unfortunately, this fails to adequately or clearly distinguish the two and adds uncertainty 

to the definition of “waters of the United States.” After all, deep groundwater can exhibit 

a direct connection to water found on the surface, as is the case with springs, groundwater 

seeps, and geysers, for instance.

Without defined parameters, how will the Agencies or property owners determine where 

shallow subsurface water stops and groundwater begins? This ambiguity presents a 

particularly interesting case in the surficial aquifer system of the Southeastern United 

States. Given the extent of the surficial aquifer underlying large portions of Florida, 

Georgia, and South Carolina (Fig. 11), the movement of water within the surface aquifer 

(Fig. 12), and the often minimal depth to ground water across the region (Fig. 13), will all 

waters in the entirety of the southern half of Florida meet the definition of “waters of the 

United States” based on “shallow subsurface hydrologic connections” to “adjacent” 

jurisdictional waters? NAHB believes not, as it is clearly unreasonable to interpret Justice 

Kennedy’s “significant nexus” to such an extent. Yet, as the proposed rule is written, this 

would not be a stretch. 

 

583 Id. at 22,208.

584 Id.
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333

Figure 11: Extent of the surficial aquifer system of the Southeastern U.S.585

 

585 Source: United States Geological Survey Ground Water Atlas of the US, Alabama, Florida, Georgia, and South 

Carolina - HA 730-G. J.A. Miller. 1990. Figure 15.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

334

Figure 12: Groundwater processes in the surficial aquifer system of the Southeastern 

U.S.586

 

586 Source: id. Figure 17.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

335

Figure 13: Periodic measurements of depth to water level at USGS well site 

270157081203101 - H-15A near Palmdale, FL between 10/08/85 and 6/12/14. Latitude 

27°02'02", Longitude 81°20'33".587 (p. 83-88)

Agency Response: The rule does not include a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection. That said, waters with a 

“confined surface hydrologic connection” may be adjacent where they are 

bordering, contiguous, or neighboring an (a)(1) through (a)(5) water. Even if a 

water does not meet the definition of neighboring a “confined surface hydrologic 

connection” may be an important factor considered in a case-specific significant 

nexus determination. Preamble, IV. The rule is based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for covered adjacent waters. Preamble, III and IV, and Technical Support 

Document, I and VIII.

 

587 Source: United States Geological Survey well data from http://groundwaterwatch.usgs.gov/ site 

270157081203101 – H-15A. Accessed 9/27/14.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

336

10.367 Additionally, more challenges arise because the proposed rule fails to define critical flow 

parameters associated with “shallow subsurface hydrologic connections” or “confined 

surface hydrologic connections,” including rate of shallow subsurface flow, travel 

distance along a shallow subsurface flowpath, volume of shallow subsurface flow, and 

duration of shallow subsurface flow. Each of these flow parameters is critical in 

determining the chemical, physical, and biological impact these “hydrologic connections” 

may have on an “adjacent” water (see Section VI. c. iv. 5. b.).

To illustrate the importance of defining these critical subsurface flow parameters, let us 

consider the impact of soil type on the rate of water flow through a soil matrix. Table 1, 

which has been modified from EPA Method 9100 to include the number of days required 

for water to travel a distance of 100 feet within each soil matrix type, provides soil 

hydraulic conductivity values in feet per day (ft d-1).588 The values highlighted in yellow 

indicate the range of hydraulic conductivities from less than 0.001 ft d-1 (clay) to greater 

than 600 ft d-1 (well sorted coarse gravel).

To put these values in context, it would take a molecule of water more than 274 years to 

travel 100 feet through a clay confining layer underlying an isolated playa lake (see Fig. 

14). As another example, a USGS study of the Delmarva Peninsula found that 

groundwater return times (the time required for recharge at the water table to return to a 

surface water through groundwater) can take from years to decades.589 If an isolated 

Delmarva Bay wetland recharges shallow groundwater that only surfaces downstream 

some 60 years later, does this meet the “shallow subsurface hydrologic connection” that 

would constitute the wetland jurisdictional by rule?

The draft Connectivity Report acknowledges the “magnitude and transit time of 

groundwater flow from a wetland to other surface waters depends on the intervening 

distance and the properties of rock or unconsolidated sediments between the water 

bodies.”590 Nowhere in the proposed rule, however, is a spatial or temporal threshold 

provided by which shallow subsurface hydrologic connections or confined surface 

hydrologic connections can be used to define “neighboring.” Lacking these critical 

thresholds, the Agencies have proposed to extend the jurisdiction of the CWA well 

beyond parody. 

 

588 Modified from EPA Method 9100: Saturated Hydraulic Conductivity, Saturated Leachate Conductivity, and 

Intrinsic Permeability (September 1986) at 28, 29.

589 Sanford, W.E., and J.P Pope. 2013. Quantifying Groundwater’s Role in Delaying Improvements to Chesapeake 

Bay Water Quality. Environ. Sci. Technol. 47:13330-13338.

590 Draft Connectivity Report at 5-24.
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Figure 14: Playa characteristics include a clay rich floor and an annulus, the sloped 

surface at a playa’s margin.591 (p. 83-91)

Agency Response: The rule does not include a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection. That said, waters with a 

“confined surface hydrologic connection” may be adjacent where they are 

bordering, contiguous, or neighboring an (a)(1) through (a)(5) water. Even if a 

water does not meet the definition of neighboring a “confined surface hydrologic 

connection” may be an important factor considered in a case-specific significant 

nexus determination. Preamble, IV. The rule is based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for covered adjacent waters. Preamble, III and IV, and Technical Support 

Document, I and VIII.

10.368 The science to support the inclusion of waters with shallow subsurface or confined 

surface hydrologic connections to (a)(1) through (5) waters categorically jurisdictional is 

lacking. Even if a water falls outside of the subjectively defined riparian area or 

floodplain, it can still meet the Agencies’ definition of “neighboring” and, in turn, 

“adjacent” if it has a “shallow subsurface hydrologic connection” or “confined surface 

hydrologic connection” to an (a)(1) through (5) water. This assertion is problematic, in 

 

591 Gurdak, JJ, and Roe, CD, 2009, Recharge rates and chemistry beneath playas of the High Plains aquifer—A 

literature review and synthesis: U.S. Geological Survey Circular 1333, 39 p.
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that the proposed rule is purported to be based on the conclusions of the draft 

Connectivity Report, yet the authors of the Report clearly state, “The literature we 

reviewed does not provide sufficient information to evaluate or generalize about the 

degree of connectivity (absolute or relative) or the downstream effects of wetlands in 

unidirectional landscape settings.”592 In the SAB review of the draft Connectivity Report, 

the SAB recommends EPA use the term “non-floodplain wetlands” in place of 

“unidirectional wetlands.”593 Following this definitional change, the authors of the draft 

Connectivity Report, though they have reviewed more than 1,000 pieces of peerreviewed literature on the connectivity of streams and wetlands on downstream waters, 

admit they do not have enough evidence to even generalize about connections between 

wetlands outside of the floodplain and (a)(1) through (5) waters. 

Despite this dearth of evidence, the Agencies are proposing categorical jurisdiction over 

nonfloodplain waters with a shallow subsurface hydrologic connection or confined 

surface hydrologic connection to an (a)(1) through (5) water and claim the proposed rule 

is supported “by a body of peer-reviewed scientific literature on the connectivity of 

tributaries, wetlands, adjacent open waters, and other open waters to downstream waters 

and the important effects of these connections on the chemical, physical, and biological 

integrity of those downstream waters [i.e., the draft Connectivity Report].”594 This is 

illogical and flies in the face of any attempt to justify the rule via sound science. What’s 

even more surprising, the Agencies cite verbatim the draft Connectivity Report statement 

regarding the lack of sufficient information to generalize about the impact of nonfloodplain wetlands on downstream waters in Appendix A of the proposed rule.595 While 

the Agencies attest the proposed rule is grounded in science, they seem to be telling two 

different stories. 

Furthermore, according to EPA’s SAB, subsurface connectivity represents an on-going 

research need for EPA. In its review of the draft Connectivity Report, the SAB 

recommends that EPA “consider where along [a] gradient the [groundwater] connections 

are of sufficient magnitude to impact the integrity of downstream waters. This may 

represent an important research need for the agency. Past this threshold, groundwater 

connections will need to be evaluated on a case-by-case basis.”596 If subsurface 

connections are still an important research need for EPA, how do EPA and the Corps 

justify using “shallow subsurface hydrologic connections” to determine that an 

“adjacent” water significantly impacts the chemical, physical, and biological integrity of 

an (a)(1) through (5) water? Rather than amassing a smattering of 1,000 pieces of 

existing scientific literature to understand the potential of streams and wetlands to impact 

downstream waters, EPA’s Office of Research and Development should have conducted 

new research to address the actual spatial and temporal variability associated with the 

point at which “adjacent” waters pass the “significant nexus” test. EPA has failed to 

 

592 Id. at 1-10, 1-11.

593 SAB Final Review of the Draft Connectivity Report at 5.

594 79 Fed. Reg. at 22,190.

595 Id. at 22,225.

596 SAB Final Review of the Draft Connectivity Report at 55 (emphasis added) (Note, in SAB’s June 5, 2014 draft 

review of the Draft Connectivity Report at 56, the panel originally stated “This represents an important research 

need for the agency.” The word “may” has since been added to this sentence).
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complete this critical task. Until the Agency does so, the science to support this proposed 

rule will remain deficient.

The Agencies explicitly state that “shallow subsurface flows are not ‘waters of the United 

States,’” yet they “may provide the connection establishing jurisdiction.”597 Likewise, 

non-jurisdictional features such as rills, gullies, and non-wetland swales “may still serve 

as a confined surface hydrologic connection between an adjacent wetland or water” and 

an (a)(1) through (5) water.598 And, finally, while riparian areas and floodplains are not, 

in and of themselves jurisdictional, they can be used to demonstrate adjacency.

The original intent of the CWA was to exercise Congress’s traditional commerce power 

over navigation, not flight paths or flyways, not surface transportation routes, but 

navigable waterways. The use of non-jurisdictional connections to establish adjacency or 

a significant nexus not only turns that intent on its side, it also has no limits. The 

proposed rule essentially allows for all waters to be jurisdictional based on virtually any 

connections – whether or not those connections have anything to do with water or 

navigability or commerce. This amounts to the “any hydrologic connection” theory 

rejected in Rapanos and hardly clarifies jurisdiction. The agencies must eliminate the use 

of dry lands and excluded waters as a basis for jurisdiction. (p. 91-93)

Agency Response: The rule does not include a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection. That said, waters with a 

“confined surface hydrologic connection” may be adjacent where they are 

bordering, contiguous, or neighboring an (a)(1) through (a)(5) water. Even if a 

water does not meet the definition of neighboring a “confined surface hydrologic 

connection” may be an important factor considered in a case-specific significant 

nexus determination. Consistent with Justice Kennedy’s opinion, the rule is not 

based on the “any connection theory” but is instead based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for covered adjacent waters. Preamble, III and IV, and Technical Support 

Document, I and VIII. The rule is consistent with decisions of the Supreme Court 

and the Constitution. Technical Support Document, I.C. 

10.369 The Agencies fail to establish critical spatial and temporal parameters under the 

“neighboring” definition, thereby leaving the scope the per se jurisdiction “adjacent 

waters” without limit. The new “neighboring” definition extends the jurisdiction of the 

CWA well beyond the limits of the historical “adjacent” definition and those set by the 

Court. Moreover, the Agencies have not defined any spatial or temporal parameters 

associated with “neighboring,” thereby leaving the scope of per se jurisdictional 

“adjacent waters” without limit. To clarify the jurisdictional scope of the CWA, the 

Agencies must define the flow parameters associated with “neighboring,” including 

magnitude, frequency, duration, and travel distance. Indeed, EPA’s Office of Research 

and Development recognizes the effect of distance on the likelihood a water will 

significantly impact the ecological integrity of another water. The draft Connectivity 

Report states, “[i]f geographically isolated unidirectional wetlands have surface water 

 

597 79 Fed. Reg. at 22,208.

598 Id. at 22,204.
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outputs . . . the probability that surface water will infiltrate or be lost through 

evapotranspiration increases with distance” and continues, “[a]ll things being equal, 

wetlands with shorter distances to the stream network will have higher hydrologic and 

biological connectivity than wetlands located farther from the same network.”599 In other 

words, the farther a so-called “neighboring” and therefore “adjacent” water is from an 

(a)(1) through (5) water, the less likely it is to significantly affect the chemical, physical, 

and biological integrity of that water; the less likely it is to exhibit a significant nexus.

The Agencies acknowledge the effect of distance on a “significant nexus” between waters 

in the proposed rule: “[t]he scientific literature recognizes the role of hydrologic 

connections in supporting a substantial chemical, physical, or biological relationship 

between water bodies, but this relationship can be reduced as the distance between water 

bodies increases.”600 Yet, they only pay lip service to this relationship, stating “[i]n 

circumstances where a particular water body is outside of the floodplain and riparian area 

of a tributary, but is connected by a shallow subsurface hydrologic connection or 

confined surface hydrologic connection with such tributary, the agencies will . . . assess 

the distance between the water body and tributary in determining whether or not the 

water body is adjacent . . . The agencies recognize that in specific circumstances, the 

distance between water bodies may be sufficiently far that even the presence of a 

hydrologic connection may not support an adjacency determination.”601 While the 

Agencies may think that is a reasonable approach, as they retain the ability to make 

whatever jurisdictional call they believe to be prudent, the regulated community is left in 

the dark without bright line thresholds used to determine whether or not a water 

“neighbors” and is “adjacent” to an (a)(1) through (5) water and as a result is or is not 

under the jurisdiction of the CWA. (p. 94-95)

Agency Response: The rule no longer includes a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provides that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now 

provides specific distance limits for “neighboring” waters. Preamble, IV. The rule 

is based on the agencies’ careful examination of the science and the law to make a 

determination of significant nexus for covered adjacent waters. Preamble, III and 

IV, and Technical Support Document, I and VIII; Science Compendium.

American Petroleum Institute (Doc. #15115)

10.370 The 2014 Proposed Rule appears to base this expansion of jurisdiction on a review of the 

scientific literature, and acknowledges there is no legal precedent supporting this broad 

expansion: “While the issue was not before the Supreme Court, it is reasonable to also 

assess whether non-wetland waters have a significant nexus, as Justice Kennedy’s 

opinion makes clear that a significant nexus is a touchstone for the CWA.”602 The 

agencies provide no statutory or judicial support for this conclusion. 

 

599 Draft Connectivity Report at 3-42 and 3-43.

600 79 Fed. Reg. at 22,211. 

601 Id. at 22,207, 22,208.

602 Id. at 22,209, 22,260.
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No such statutory or judicial support in fact exists. The Supreme Court has never held 

that the Clean Water Act protects all “waters” with a significant nexus to navigable 

waters.603 In United States v. Riverside Bayview Homes, the Court upheld the Corps’ 

definition of “waters of the United States” to include adjacent wetlands based, in large 

part, on a finding that it was reasonable to treat adjacent wetlands as unique and subject 

to Clean Water Act jurisdiction despite their non-navigability.604 Riverside Bayview did 

not suggest that other adjacent waters should be considered jurisdictional. Nor did 

Rapanos: “No Justice [in Rapanos], even in dictum, addressed the question whether all 

waterbodies with a significant nexus to navigable waters are covered by the Act.”605

In fact, both opinions in the Rapanos majority limited jurisdiction even over adjacent 

wetlands. The plurality opinion would find adjacent wetlands to be jurisdictional only if 

the wetlands have a continuous surface connection to a navigable water.606 Although 

Justice Kennedy did not overrule the agencies’ presumption that wetlands adjacent to 

navigable waters are jurisdictional, he rejected any presumption of jurisdiction for 

wetlands adjacent to non-navigable waters— requiring that jurisdiction be established by 

a significant nexus.

607 Lower courts have also rejected the notion that all adjacent 

“waters” to navigable waters are per se jurisdictional.608

The 2014 Proposed Rule extends the reference waters to which adjacency applies to not 

just navigable waters but also all interstate waters (including interstate wetlands), 

territorial seas, impoundments of waters, and all tributaries of waters of these waters.609 

This is an exponential expansion in coverage for adjacent waters given the 2014 

Proposed Rule’s broad new definition of “tributary.” Under the 2014 Proposed Rule, a 

tributary to any stream, pond or other wet feature that crosses a state line would become 

jurisdictional. 

The agencies ground their legal justification for asserting per se jurisdiction over all 

adjacent waters on Justice Kennedy’s conclusion that adjacent wetlands to tributaries are 

jurisdictional.610 The agencies also acknowledge, however, that Justice Kennedy’s 

opinion was based solely on the facts before him, and that those facts did not involve the 

question of jurisdiction over all adjacent waters.611 Without legal support, the agencies 

 

603 San Francisco Baykeeper, 481 F.3d at 706.

604 Bayview Homes, Inc., 474 U.S. at 135 (wetlands “may function as integral parts of the aquatic environment even 

when the moisture creating the wetlands does not find its source in the adjacent bodies of water”); Rapanos, 547 

U.S. at 779 (quoting same).

605 San Francisco Baykeeper, 481 F.3d at 707.

606 Rapanos, 547 U.S. at 742.

607 Id. at 780, 782.

608 In San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700 (9th Cir. 2007), the Ninth Circuit explicitly 

rejected jurisdiction over adjacent ponds: “the district court improperly expanded the regulatory definition of ‘waters 

of the United States’ when it held that bodies of water that are adjacent to navigable waters are subject to the CWA 

by reason of that adjacency. Our conclusion is based on the CWA, the regulations promulgated by the agencies 

responsible for administering it, and the decisions of the Supreme Court addressing the reach of the Act and its 

regulations.”

609 2014 Proposed Rule, 79 Fed. Reg. at 22,263-64.

610 Id. at 22,260 (“Justice Kennedy’s significant nexus standard provides a framework for establishing categories of 

waters which are per se “waters of the United States.”). 

611 Id. at 22,260. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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determine it is “reasonable to also assess whether non-wetland waters have a significant 

nexus,” and conclude “that adjacent waters as defined in today’s 2014 Proposed Rule, 

alone or in combination with other adjacent waters in the region that drains to a 

traditional navigable water, interstate water or the territorial seas, significantly affect the 

chemical, physical, and biological integrity of those waters.”612 On that basis, the 

agencies have determined to treat all adjacent waters as categorically significantly 

affecting the chemical, physical or biological integrity of downstream waters. In support 

of this sweeping claim of jurisdictional authority, the agencies simply claim that this 

authority is an “appropriate reflection of Congressional intent.”613 A new and massive 

expansion of jurisdiction such as this must rest on more than bald assertions of 

Congressional intent. (p. 25-26)

Agency Response: The rule is consistent with the statute and caselaw. Technical 

Support Document, I.A., B., and C. Consistent with Justice Kennedy’s opinion, the 

rule is based on the agencies’ careful examination of the science and the law to make 

a determination of significant nexus for covered adjacent waters. Preamble, IV and

Technical Support Document, I and VIII. The agencies’ rule makes no change to 

the interstate waters section of the existing regulations and the agencies will

continue to assert jurisdiction over interstate waters, including interstate wetlands. 

The language of the CWA is clear that Congress intended the term “navigable 

waters” to include interstate waters, and the agencies’ interpretation, promulgated 

contemporaneously with the passage of the CWA, is consistent with the statute and 

legislative history. The Supreme Court’s decisions in SWANCC and Rapanos did 

not address the interstate waters provision of the existing regulation. Technical 

Support Document, IV.

Jefferson Mining District (Doc. #15706)

10.371 This jurisdiction determining term, in respect of Congressional disposal obligations does 

not include a mere hydrologic connection but more "that would be required'. These are to 

be determined; not prejurisdictionally predetermined, or as the agencies mischaracterize 

as 'confused', lacking clarity. In the 2006 case Rapanos v. United States, the Supreme 

Court stated the extent of the interpretive authority by way of identified obfuscation, 

continuing in the definition proposal: "The dissent reasons (I) that Riverside Bayview

held that "the waters of the United States" include "adjacent wetlands," and (2) we must 

defer to the Corps' interpretation of the ambiguous word "adjacent." Post, at 20-21. But 

this is mere legerdemain. The phrase "adjacent wetlands" is not part of 'the statutory 

definition that the Corps is authorized to interpret, which refers only to "the waters of the 

United States," 33 U. S. C. §1362(7). "The term "waters of the United States" is likewise 

determined by statute 33 U.S. Code § 1362 2 Definitions: (7) to include "navigable 

waters”, circumscribing the intent of an agencies’ interpretive authority. (p. 1)

Agency Response: The rule is consistent with the statute and caselaw. Technical 

Support Document, I.A. and C. 

 

612 Id.

613 Id. 
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Gas Processors Association (Doc. #16340)

10.372 In the context of the Clean Air Act, EPA’s prior attempt to define “adjacent” in terms 

other than distance failed in the courts. In April 2012, the United States Court of Appeals 

for the Sixth Circuit held that EPA interpreted the term “adjacent” too expansively when 

the agency aggregated a natural gas company’s facilities that were separated by several 

miles as a single source under the Clean Air Act. See Summit Petroleum Corp. v. U.S. 

Envtl. Prot. Agency, 690 F .3d 733 (6th Cir. 2012). The EPA relied on prior agency 

guidance in making its source determination. Id. at 740. At issue was whether Summit 

Petroleum’s facilities were “adjacent” to one another, turning them into a stationary 

source that requires EPA to regulate the facilities as a major source under Title V of the 

Clean Air Act. Id. at 741. EPA argued that the term “adjacent” was ambiguous and added 

that the court should look at the “functional relatedness” of the facilities to see whether 

they are adjacent. Id.at 741-42. The court disagreed, holding that the term “adjacent” 

unambiguously refers only to physical proximity and that EPA’s unlawful interpretation 

defied the plain and ordinary meaning of the Clean Air Act regulations. Id. at 744. 

Therefore, the agencies cannot expand the concept of “adjacent” to mean anything other 

than physical proximity or else the interpretation will be invalidated by the courts similar 

to the Summit Petroleum case. (p. 3-4)

Agency Response: The Supreme Court has stated that the term “waters of the 

United States” is ambiguous in some respects. With this rule, the agencies interpret 

the scope of the “waters of the United States” for the CWA in light of the goals, 

objectives, and policies of the statute, the Supreme Court caselaw, the relevant and 

available science, and the agencies’ technical expertise and experience. Technical 

Support Document, I. A and C and Preamble, III and IV. 

Home Builders Association of Tennessee (Doc. #19581)

10.373 The definition of "adjacent" waters or wetlands must be read in the same context as that 

described in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) which 

determined that adjacent wetlands arc "inseparably bound up" with the waters to which 

they are adjacent. Since the wetlands themselves are not navigable, the Court took the 

occasion in that case to read the CWA broadly to cover such adjacent wetlands physically 

adjacent to the traditional navigable waters of Saginaw Bay. However, the newly defined 

terms appear to go much further than that permitted under any of the Supreme Court 

decisions. (p. 10-11)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

Barrick Gold of North America (Doc. #16914)

10.374 The agencies’ assertion of jurisdiction over all “adjacent waters” suffers from the same 

deficiencies as the assertion of jurisdiction over all tributaries, discussed above. The 

proposed rule is based on the agencies’ conclusion that “adjacent waters,” alone or 

together with similarly situated waters, are per se “waters of the United States,” because 

they have a “significant nexus” with traditional navigable waters, interstate waters, the 

territorial seas, tributaries (as defined in 18 the proposed rule), or impoundments. 79 Fed. 

Reg. at 22,207-09. The proposed rule relies on aggregation of “similarly situated” 
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345

adjacent waters to conclude that they are “waters of the United States” categorically. 79 

Fed. Reg. at 22,209. Like the proposed rule’s treatment of tributaries, its treatment of 

adjacent waters would result in jurisdiction over channels with intermittent or ephemeral 

flow and isolated wetlands. These features may be hundreds of miles from a traditional 

navigable water.614 The rule would require no proof that such remote water features 

actually contribute flow to a traditional navigable water, or that any such flow represents 

the required significant nexus. That outcome is inconsistent with SWANCC and Rapanos, 

including with Justice Kennedy’s concurring Rapanos opinion upon which the proposed 

rule purports to be based. (p. 19-20)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. The rule is based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for covered adjacent waters and covered tributaries. Preamble, IV and Technical 

Support Document, I, VII and VIII. 

Independent Petroleum Association of New Mexico (Doc. #16915.1)

10.375 The US Supreme court has established legal standards as to how expansive the 

jurisdiction of the agencies will be in defining ‘Waters of the United States’ which does 

not include ‘other waters.’ The interpretation of the terms “waters of the United states” 

and “navigable waters” are issues that have been repeatedly addressed by the Courts. 

Indeed, twice before, the US Supreme Court has specifically reviewed the Army Corps 

interpretations of the term “navigable waters” in the Clean Water Act. The “significant 

nexus” standard expounded by Justice Kennedy in his concurrence in Rapanos is what 

the EPA and USACE rely upon in creating the “other waters” category in the proposed 

rule for the definition of “waters of the United States” under the CWA. Rapanos v. U.S., 

547 U.S. 715, 767 (2006). IPANM would submit that the expansive nature of the 

proposed new definition for ‘waters of the United States’ is another overreach by the 

Corps which will result in additional litigation and ultimately another case before the 

Supreme Court.615

In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), the Court 

upheld the Corps’ jurisdiction over wetlands adjacent to navigable--‐in--‐fact waterways. 

Id., at 139. The Court held that wetlands are lands that “are inundated or saturated by 

surface or ground water at a frequency and duration sufficient to support, and that under 

normal circumstances do support, a prevalence of vegetation typically adapted for life in 

 

614 Under the proposed rule, waters may be “adjacent” to a tributary (as defined in the proposed rule) and thus such 

waters in many cases could be remote from any traditional navigable water. See 79 Fed. Reg. at 22,210.11 “While 

the issue [of non-wetland waters] was not before the Supreme Court, it is reasonable to assess whether [they] have a 

significant nexus, as Justice Kennedy’s opinion makes clear that a significant nexus is the touchstone for CWA 

jurisdiction.” 79 Fed. Reg. at 22,209.

615 Given the ages of the Supreme Court Justices, it is likely that the makeup of the court will be substantially 

different in the very near future. In the Rapanos case, cited below, Justice Kennedy offered a concurrence opinion 

and the remaining Justices split down the traditional lines of Scalia, Roberts, Thomas and Alito with the plurality 

opinion and Justice Stevens, Ginsbuerg, Souter and Breyer dissenting. Justice Kennedy is currently 79 and was 

appointed by President Regan. Justice Scalia is 79, Alita is 64, Thomas is 66 and Chief Justice Roberts is 59. There 

has been speculation and media commentary that Justice Ginsberg, who is 81 should retire by the end of this term so 

that President Obama can replace her with a Justice with similar liberal leanings.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

346

saturated soil conditions.” Id. (citing 33 C.F.R. § 323.2(c) (1985)). The Court also 

accepted the Corps argument that wetlands adjacent to lakes, rivers, streams, and other 

bodies of water may function as integral parts of the aquatic environment. In the context 

of this case, wherein the respondents property abutted a navigable waterway, the Court 

concluded that a definition of “waters of the United States” encompassing all wetlands 

adjacent to other bodies of water over which the government has jurisdiction. Id. at 135. 

In Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 163 

(2001). (“SWANCC”), the Corps created a ‘migratory bird rule’ and “determined that the 

seasonally ponded, abandoned gravel mining depressions located on the project site, 

while not wetlands, did qualify as ‘waters of the United States’. Id. at 164-65 (citing U.S. 

Army Corps of Engineers, Chicago District, Dept. of Army Permit Evaluation and 

Decision Document, Lodging of Petitioner, Tab No. 1, p. 6). However, the Supreme 

Court held the “Migratory Bird Rule” was not sufficient to establish Corps jurisdiction 

under the CWA. Id. at 167. Interestingly, in SWANCC the Court seemed to have 

expanded its own decision in the Riverside case when it held:

“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 the authority of the Corps to 

regulate discharges of fill material into wetlands that are not adjacent to bodies of 

open water...” Id. at 167 (citing Riverside Bayview Homes, Inc., 474 U.S. at 131-

-32, n. 8). 

The most recent Supreme Court decision on the Corps jurisdiction under CWA is John A. 

Rapanos, et al. v. United States, 547 U.S. 715 (2006). Unfortunately, this decision was a 

plurality decision, with the Court splitting 4-1-4, as Justice Kennedy only agreed with the 

majority decision to remand but offered the ‘significant nexus’ standard in determinations 

of whether a particular source of water is to be considered a ‘water of the United States’. 

In contrast, the plurality found that the Corps authority to regulate limited “waters of the 

United States” constituted those waters that were “relatively permanent, standing or 

flowing bodies of water...forming geologic features” and not “ordinary dry channels 

through which water occasionally or intermittently flows.” Id. at 732--‐33. The plurality 

specifically excluded from the definition “streams that flow intermittently or 

ephemerally, or channels that periodically provide drainage for rainfall.” Id at 739. The 

plurality also stated, “[O]nly those wetlands with a continuous surface connection to 

bodies that are “waters of the United States” in their own right, so that there is no clear 

demarcation between “waters” and wetlands, are “adjacent to” such waters and covered 

by the Act.” Id. at 742 (citing Solid Waste Agency of N. Cook Cnty., 531 U.S. at 167). 

The proposed expansion of the definition of “waters of the United States” to include 

“other waters” extends far beyond the plurality ruling of the Court. 

In expanding its jurisdictional authority with the proposal, the Corps will have to most 

likely face Chief Justice Roberts in any litigation that arises from this proposal.616 In 

Rapanos, Chief Justice Roberts’ wrote a scathing concurring opinion admonishing the 

 

616 IPANM would note that Justice Roberts is the second youngest Justice on the court so the likelihood of his 

involvement in the next round is likely.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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Corps for ignoring the Court’s “generous standards” and direction in the Solid Waste 

Agency of Northern Cook Cty. v. Army Corps of Engineers case. Rapanos at 758. “[In 

SWANCC] the Corps had taken the view that its authority was essentially limitless; 

[however], this Court explained that such a boundless view was inconsistent with the 

limiting terms Congress had used in the Act” Rapanos at 758 citing Solid Waste Agency 

of N. Cook Cnty. 531 U.S. at 167–174. Justice Roberts further noted that, 

“Agencies delegated rulemaking authority under a statute such as the Clean Water 

Act are afforded generous leeway by the courts in interpreting the statute they are 

entrusted to administer. (citing, Chevron U. S. A. Inc. v. Natural Resources 

Defense Council, Inc., 467 U. S. 837, 842–845 (1984)}. Given the broad, 

somewhat ambiguous, but nonetheless clearly limiting terms Congress employed 

in the Clean Water Act, the Corps and the EPA would have enjoyed plenty of 

room to operate in developing some notion of an outer bound to the reach of their 

authority.” Ibid.

Justice Roberts’ palatable frustration with the agencies will easily be resurrected when 

this proposal is litigated, “Rather than refining its view of its authority in light of our 

decision in SWANCC, and providing guidance meriting deference under our generous 

standards, the Corps chose to adhere to its essentially boundless view of the scope of its 

power. The upshot today is another defeat for the agency.” IPANM maintains that this 

current proposal is yet another example of the Corps seeking to expand its authority 

beyond the very clear limitations imposed by Congress in the CWA. 

In Justice Kennedy’s Rapanos opinion, he holds that “[u]nder the Corps’ regulations, 

wetlands are adjacent to tributaries, and thus covered by the [CWA], even if they are 

‘separated from other “waters of the United States” by man--‐made dikes or barriers, 

natural river berms, beach dunes, and the like.’” Id. at 762 (citing 33 C.F.R. § 328.3(c)). 

“A “significant nexus” standard must be applied in order to determine if a connection 

between a nonnavigable water or wetland is significant enough to deem the water or 

wetland a “navigable water” under the CWA”. Id. at 767. In addition, it is of note that in 

his opinion, Justice Kennedy applied the significant nexus test to only wetlands as a type 

of ‘water’ other than ‘navigable waters’. In a lengthy dissertation, Justice Kennedy states, 

“[wetlands] can perform critical functions related to the integrity of other waters—

functions such as pollutant trapping, flood control, and runoff storage.” Id. at 779. 

[I]f 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. When, in contrast, wetlands affect 

on water quality are speculative or insubstantial, they fall outside the zone fairly 

encompassed by the statutory term “navigable waters.” Id. at 780. 

Finally, Justice Kennedy limits the Corp jurisdiction in the final step of the ‘significant 

nexus’ analysis, stating that,

“...if the wetlands, either alone or in combination with similarly situated lands in 

the region, significantly affect the chemical, physical, or biological integrity of 

other covered waters more readily understood as “navigable.” When, in contrast, 

wetlands’ effect on water quality is speculative or insubstantial, they fall outside 

the zone fairly encompassed by the statutory term “navigable waters.”
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

348

It is IPANM’s position, as well as that of several other associations that the plurality 

opinion of Rapanos should govern implementation of the Clean Water Act “waters of the 

United States.” The agencies have over-stated the Kennedy standard which clearly only 

applies to wetlands, to apply the standard to waters with tenuous nexus results in 

impermissibly expanding the proposed definition beyond the scope of the Clean Water 

Act. (p. 4-9)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

Petroleum Association of Wyoming (Doc. #18815)

10.376 Of particular importance to PAW, is the agencies' reliance on an incorrect interpretation 

of Justice Kennedy's analysis of the "significant nexus" test to assert sweeping 

jurisdiction over "tributaries", "adjacent" waters and "other waters" (alone or aggregated 

with other "similarly situated waters") under subsections (5), (6) and (7) of the proposed 

rule. 40 CFR 230.3(5), (6), (7). Justice Kennedy's concurring opinion in Rapanos does 

not support the agencies' broad interpretation of the "significant nexus" test, and the 

agencies' interpretation essentially removes the limitations on federal jurisdiction 

imposed by the CWA and recognized in Rapanos by both the plurality and Justice 

Kennedy. By proposing that virtually any drainage feature could present a "significant 

nexus" to traditional navigable waters ("TNW"), the agencies have stretched Justice 

Kennedy's concurring opinion well past the breaking point. In doing so, they have also 

largely ignored the legal rationale articulated by both the Rapanos plurality and Justice 

Kennedy's concurrence. Essentially the proposed rule appears to attempt to 

circumnavigate the limitations expressed by both the plurality and Justice Kennedy's 

concurrence. 

The agencies' extensive reliance on Justice Kennedy's concurrence as the prevailing law 

as to what constitutes a jurisdictional water is misplaced. The agencies compound this 

misplaced reliance by attempting to fill legal holes with rationale from the agencies' 

Connectivity Report to attempt to support some of the most controversial aspects of 

subsections (5), (6), and (7) of the proposed WOTUS definition. The end result is that the 

agencies have ignored any reasonable reading of the plurality and concurring opinion in 

Rapanos. The plurality was critical of Justice Kennedy's significant nexus discussion and 

pointed out its limited utility in light of the Court's earlier precedent referring to the 

"significant nexus" test. Rapanos, pp. 753-756. Rather than exercising any restraint, or 

acknowledging the plurality's criticism of the Kennedy concurrence, it appears the 

agencies have instead liberally extended Justice Kennedy's concurrence as far as possible 

to expand federal jurisdiction to the maximum extent their arguments will permit.617

For example, the agencies expansive jurisdictional assertion overlooks the most basic of 

limitations expressed in the CWA, that grant the agencies authority over only "navigable 

waters" or "water of the United States" 33 U.S.C. § 344, 1362(7). In Rapanos, the 

plurality determined the "Corps has stretched the term 'waters of the United States' 

 

617 Should the agencies determine it is appropriate to withdraw the proposed rule and start over, PAW urges the 

agencies to focus on following a reasonable reading of the CWA and the Supreme Court's interpretation of the act, 

rather than trying to find ways to enlarge upon the fair import of CWA jurisprudence.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

349

beyond parody" by applying it to such things as ephemeral streams, wet meadows, 

directional sheet flow during storm events, manmade drainage ditches and dry arroyos . 

Instead, the plurality recognized that jurisdiction depended on "relatively permanent, 

standing or continuously flowing bodies of water" or waters which have a "continuous 

surface connection to relatively permanent waters." Rapanos, 547 U.S. 715, 734, 742. 

Nor does Justice Kennedy's concurrence support the expansive reach of the agencies ' 

proposed rule. Justice Kennedy's concurrence specifically limited his opinion to 

"wetlands" (not other "waters") that "alone or in combination with similarly situated 

lands in the region" could "significantly affect the chemical, physical and biological 

integrity of other covered waters more readily understood as 'navigable'." Id. at 780. 

Taken in context, his analysis cannot be stretched as far as the agencies have proposed, as 

it does not support a determination that non-wetland drainage features such as many 

ephemeral and intermittent drainages or "waters" within floodplains or ditches possess 

the requisite significant nexus to be jurisdictional. 

In Wyoming, there are many such features that have historically been deemed 

nonjurisdictional, but which could become jurisdictional if the proposed rule were 

adopted. Notably, Justice Kennedy specifically criticized the Rapanos dissent's 

interpretation of CWA jurisdiction, stating that it "reads a central requirement outnamely, the requirement that the word 'navigable' in 'navigable waters' be given some 

importance." ld, at 179. Far from supporting a general notion that any drainage feature 

could rise to a "significant nexus" with TNW, the issues that Justice Kennedy addressed 

in his concurrence were limited to wetlands in the context of the facts before the Court. 

The agencies' reliance on statements by Justice Kennedy to assert jurisdiction over 

remote intermittent and ephemeral waters and wetlands, (individually or aggregated with 

others in a watershed), takes too many liberties with the concurrence. Justice Kennedy 

himself recognized that where "the dissent would permit federal regulation whenever 

wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually 

may flow into traditional navigable waters" that "[t]he deference owed to the Corps' 

interpretation of the statute does not extend so far." Id. at 778-779. Many of the drainage 

features in Wyoming that could fall under regulation in the proposed rule are so "remote 

and insubstantial" as to render wholly erroneous the agencies' reliance on Justice 

Kennedy's concurrence to support the jurisdictional assertions. Numerous comments 

submitted under this docket demonstrate the fallacy in the agencies' broad reading of 

Justice Kennedy's concurrence, and their analysis will not be repeated here, other than to 

state that PAW agrees with the analysis in the comments referenced previously.618 PAW 

also believes that as a matter of law, the agencies place undue weight and reliance on the 

concurring opinion of one justice. (p. 2)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute and caselaw. Technical Support Document, I.A., B., and 

C. 

 

618 See, e.g., IPAA, AXPC, WEA Comments referenced, Supra.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

350

10.377 In 2008 Guidance619, the agencies recognized two significant limitations on their 

jurisdiction based on their then-prevailing interpretation of the Rapanos and SWAANC

decisions, which have been stripped in the proposed rule. First, the 2008 Guidance held 

that for non-navigable "tributaries" to be deemed WOTUS, they must be "relatively 

permanent where the tributaries typically flow year-round or have continuous flow at 

least seasonally (e.g., typically three months)." 2008 Guidance, p. 1. Any "tributary" that 

was not "relatively permanent" and "wetlands" adjacent to tributaries that were not 

"relatively permanent" required a fact-specific analysis to determine whether a significant 

nexus with a TNW existed, sufficient to exercise jurisdiction. By contrast, the proposed 

rule would deem any "tributary" exhibiting a bed, banks and ordinary high water mark 

("OHWM") to be jurisdictional, regardless of any flow considerations. Further, a 

tributary that by itself would fail the jurisdictional test, could, under the proposed rule, be 

aggregated with other "similarly situated" "tributaries" in the watershed to overcome the 

lack of jurisdiction. PAW contends that interpreting jurisdiction in this manner clearly 

exceeds any reasonable construction of the CWA or Supreme Court precedent and is 

grossly over-inclusive.

Second , the 2008 Guidance limited jurisdictional determinations relating to wetlands that 

"directly abut" jurisdictional tributaries to just that-"wetlands". By contrast, the proposed 

rule purports to extend jurisdiction to both "waters" and "wetlands" that abut, or are 

"adjacent" to tributaries, regardless of whether the tributary is relatively permanent or 

not. 

The agencies purport to support these significant expansions of jurisdiction through an 

overly-generous interpretation of Justice Kennedy's Rapanos concurrence. But as many 

comments filed in response to the proposed rule have demonstrated, such an expansive 

reading of the Kennedy concurrence is erroneous. In addition, the agencies present no 

compelling justification or analysis for changing their prior legal interpretation of their 

jurisdictional limits under the CWA, as expressed in their own 2008 Guidance , and 

substituting a far more liberal legal analysis that purports to grant the agencies virtually 

unbounded jurisdiction. (p. 2-5)

Agency Response: The agencies do not view the 2008 Guidance as an 

interpretation of the Clean Water Act, but to the extent the agencies have changed 

their interpretation, they disagree that they failed to explain their basis. Technical 

Support Document, I.C. 

Montana Wool Growers Association (Doc. #5843.1)

10.378 The Court concluded in SWANCC that the CWA did not grant the Corps jurisdiction over 

"ponds that are not adjacent to open water." The Proposed Rule would confront this 

holding. (p. 5)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

 

619 Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & 

Carabell v. United States, December 2, 2008.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

351

Red River Joint Water Resource Board (Doc. #4227)

10.379 In our view, the proposed rules seek to widely expand the jurisdiction of EPA and the 

Corps under the CWA, and to roll-back the outcome of the Supreme Court’s decision in 

Solid Waste Agency of Northern Cook County v. US. Army Corps of Engineers, 531 U.S 

159 (2001) ("SWANCC"). While EPA contends the proposed rule does not seek to protect 

any new types of waters and does not broaden the coverage of the CWA, the clear 

language of the proposed rule revisions expands greatly on the proposed 2011 guidance 

document circulated by EPA and the Corps, and basically enacts a more expansive 

version of the migratory bird rule. In short, the new descriptions of "other waters" and 

“adjacent waters” in the proposed rules seek to render previously non-jurisdictional 

waters jurisdictional via the rulemaking process and contrary to Supreme Court 

precedent. (p. 1)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute and caselaw. Technical Support Document, I.A., B., and 

C. 

National Cattlemen’s Beef Association (Doc. #8674)

10.380 Additionally, our organizations disagree that Riverside Bayview and Rapanos allow the 

agencies to take the adjacent wetlands “significant nexus” and “similarly situated” test 

and apply it to all tributaries. Both cases analyzed “adjacent wetlands,” neither were 

analyzing the far removed, isolated waters, which the agencies now seek to apply this test 

to. Since Rapanos, even a lower court has recognized the importance of such 

distinction.620 In Baykeeper, the 9th Circuit recognized the distinction between wetlands 

that are adjacent to navigable waters and other waters such as ponds, streams, and other 

waters that might also be near navigable waters. The agencies have failed to adequately 

explain their justification in applying such a test to all categories of water features. (p. 8-

9)

Agency Response: The rule is consistent with caselaw. Technical Support 

Document, I.C. 

10.381 What the agencies have done in this proposed rule however, goes against the logic and 

reasoning in all three Supreme Court decisions. The agencies have expanded the category 

of "adjacent wetlands" to "adjacent waters" and expanded the word "adjacent" to mean 

any open water within a floodplain or riparian area, the size and scope ofboth are 

undefined in the proposed rule and left to the "best professional judgment" of the 

regulator. The agencies have made the new category of "adjacent waters" virtually 

limitless, violating the CWA and contrary to the Supreme Court decisions. Justice 

Kennedy summed it up well when he stated, "Because such a nexus was lacking with 

respect to isolated ponds [in Riverside Bayview Homes], the Court held that the plain test 

of the statute did not permit the Corps' action." (Rapanos, J. Kennedy, concurring at 9). 

Geographically located in an undefined floodplain area does not remove a feature from 

being "isolated." There are countless ponds and wetlands in floodplains or riparian areas 

that are considered "isolated." Based on Riverside Bayview Homes and even Justice 

 

620 San Franscisco Baykeeper v. Cargill Salt Division, 418 F.3d 700, 707 (9th Cir. 2007).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

352

Kennedy's opinion in Rapanos, these isolated features LACK a significant nexus 

connection to a TNW and therefore cannot be a "water of the U.S.," putting the proposed 

definition beyond the bounds of the law itself. (p. 12)

Agency Response: The rule no longer includes a provision defining 

“neighboring” based on a surface or subsurface hydrologic connection or provides 

that all waters within “floodplains,” and “riparian areas” are “adjacent.” Instead, 

the rule now provides specific distance limits for “neighboring” waters. Preamble, 

IV. The rule is based on the agencies’ careful examination of the science and the law 

to make a determination of significant nexus for covered adjacent waters. Preamble, 

III and IV, and Technical Support Document, I and VIII. The rule is consistent with 

caselaw. Technical Support Document, I.C. 

10.382 In Rapanos, the court evaluated jurisdiction over adjacent wetlands. In his concurring 

opinion, Justice Kennedy stated that the agencies could “identify categories of tributaries

that, due to their volume of flow, their proximity to navigable waters, or other relevant 

considerations, are significant enough that wetlands adjacent to them are likely, in the 

majority of cases, to perform important functions for an aquatic system incorporating 

navigable waters.” In fact, the entire analysis of adjacency goes no further than wetlands 

adjacent to these major tributaries, but the Corps and EPA has expounded upon this 

language (major tributaries of TNWs) to say that any waters that are in the floodplain or 

riparian area of (a)(1)-(5) waters are considered adjacent. (a)(1)-(5) includes TNWs; 

interstate waters; the territorial seas; impoundments of TNWs, interstate waters or the 

territorial seas; and tributaries of TNWs, interstate waters, the territorial seas, or 

impoundments. (Proposed Rule at 22198-99). This is clearly an expansion of what the 

Supreme Court would consider “adjacent.”(p. 13)

Agency Response: The rule no longer provides that all waters within 

“floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now provides 

specific distance limits for “neighboring” waters. Preamble, IV. The rule is 

consistent with decisions of the Supreme Court. Technical Support Document, I.C. 

National Alliance of Forest Owners (Doc. #15247)

10.383 Under the proposed rule, all waters, not just wetlands, that are “adjacent” to a traditional 

navigable water, interstate water, territorial sea, jurisdictional impoundment, or tributary, 

are jurisdictional.621 Although the proposed rule carries forward the definition of 

“adjacent” from the existing regulations (i.e., “bordering, contiguous, or neighboring”), it 

contains a new definition for the term “neighboring,” which “includes waters located 

within the riparian area or floodplain of” a traditional navigable water, interstate water, 

territorial sea, jurisdictional impoundment, or tributary.622 “Neighboring” waters also 

include those “with a shallow subsurface hydrologic connection or a confined surface 

hydrologic connection to such a jurisdictional water.”623 The proposed rule leaves it to 

the regulators’ “best professional judgment” how to apply these new definitions in 

 

621 See 79 Fed. Reg. at 22,263.

622 Id.

623 Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

353

determining the extent of CWA jurisdiction.624 Thus, individual regulators have wide 

latitude to determine, e.g., which floodplain625 to use; how large a given riparian area626 

is; or what it means to have a confined surface hydrologic connection. According to the 

Agencies, “[w]aters, including wetlands, that meet the proposed definition of adjacency, 

including the new proposed definition of neighboring, have a significant nexus to (a)(1) 

through (a)(3) waters, and this proposed rule would include all adjacent waters, including 

wetlands, as ‘waters of the United States’ by rule.”627

By extending the definition of “waters of the United States” to encompass all adjacent 

waters, not just wetlands, the Agencies have stretched the scope of CWA jurisdiction 

well beyond what the Supreme Court would allow and even beyond existing regulations 

and guidance. None of the relevant Supreme Court decisions addressed, much less 

affirmed, whether CWA jurisdiction extends to adjacent nonnavigable waters that are not 

wetlands. Riverside Bayview, for example, upheld the assertion of CWA jurisdiction over 

wetlands abutting a navigable-in-fact waterway.628 The Court made it clear in that case 

that it was not addressing “wetlands that are not adjacent to bodies of open water.”629 

Decades later, “Rapanos, like Riverside Bayview, concerned the scope of the Corps’ 

authority to regulate adjacent wetlands.630 Importantly, “[n]o justice, even in dictum, 

addressed the question of whether all waterbodies with a significant nexus to navigable 

waters are covered by the Act.”631 And not even the Agencies’ 2008 Rapanos Guidance 

goes so far as to address adjacent non-wetlands.

In addition to improperly extending CWA jurisdiction to adjacent non-wetlands, the 

proposed rule has defined “neighboring,” “riparian area,” and “floodplain” far too 

broadly. This new concept of adjacency runs headlong into both Justice Kennedy’s and 

the plurality’s opinions in Rapanos. Because all waters that are “adjacent” to tributaries 

(as newly defined under the proposed rule) are per se jurisdictional, the proposed rule 

will allow the Agencies to assert jurisdiction over waters that are “adjacent” to “drains, 

ditches, and streams remote from any navigable-in-fact water and carrying only minor 

water-volumes towards it.”632 Justice Kennedy’s opinion, however, does not leave room 

for such a categorical assertion of jurisdiction even over wetlands adjacent to those types 

of waters. Rather, he explained that a “more specific inquiry” is necessary to determine 

 

624 See id at 22,208.

625 “Floodplain” is defined as “an area bordering inland or coastal waters that was formed by sediment deposition 

from such water under present climatic conditions and is inundated during periods of moderate to high water flows.” 

The proposed rule does not specify a particular flood interval. 

626 “Riparian area” means “an area bordering a water where surface or subsurface hydrology directly influence the 

ecological processes and plant and animal community structure in that area.” They are “transitional areas between 

aquatic and terrestrial ecosystems that influence the exchange of energy and materials between those ecosystems.” 

627 79 Fed. Reg. at 22,207.

628 See 474 U.S. at 135.

629 Id. at 131 n.8.

630 San Francisco Baykeeper, 481 F.3d at 707.

631 Id. 

632 Rapanos, 547 U.S. at 781.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

354

whether wetlands’ “mere adjacency” to nonnavigable tributaries is sufficient to establish 

CWA jurisdiction.633

The plurality opinion in Rapanos, for its part, found that “only those wetlands with a 

continuous surface connection to bodies that are ‘waters of the United States’ in their 

own right, so that there is no clear demarcation between ‘waters’ and wetlands, are 

‘adjacent to’ such waters and covered by the Act.”634 The plurality emphasized that 

wetlands with merely an “intermittent, physically remote hydrologic connection to 

‘waters of the United States’...lack the necessary connection to covered waters that we 

described as a ‘significant nexus’ in SWANCC.”

635 Notably, the plurality spoke critically 

about how, despite the holding in SWANCC, “some of the Corps’ district offices have 

concluded that wetlands are ‘adjacent’ to covered waters if they are hydrologically 

connected ‘through directional sheet flow during storm events...or if they lie within the 

‘100-year floodplain’ of a body of water—that is, they are connected to the navigable 

water by flooding, on average, once every 100 years.”636 Despite these criticisms, that is 

exactly what the proposed rule allows by, for example, failing to place any limits on the 

Agencies’ ability to choose what floodplain interval to use when applying the new 

definition of “neighboring.” As a result, waters that are miles away from the nearest 

jurisdictional water can now be deemed jurisdictional simply by an agency employee’s 

selection of the 100-year (or perhaps even the 50-year) floodplain interval as the basis for 

identifying “adjacent” waters. 

Similarly, waters that are currently considered to be isolated (and thus, nonjurisdictional) 

are nevertheless per se jurisdictional so long as a regulator determines that: (i) there is 

some subsurface connection to a traditional navigable water, interstate water, territorial 

sea, jurisdictional impoundment, or tributary; and (ii) the “adjacent” water is within 

“reasonable proximity” of the downstream jurisdictional water.637 The Agencies’ 

categorical assertion of jurisdiction over such “adjacent” waters based on subsurface 

hydrologic connections is incompatible with the Supreme Court’s rejection of the “any 

hydrologic connection” standard in Rapanos. 

Not only are the new definitions in the proposed rule overly broad, they are too vague to 

serve the Agencies’ goal of providing clarity through this rulemaking. Individual 

regulators have discretion in determining how to apply the definitions of “floodplain” 

(e.g., which floodplain interval to use638); how to apply the definition of “riparian area” 

(e.g., whether hydrology “directly influence[s]” ecological processes and plant and 

 

633 Id. at 780, 786.

634 Id. at 742.

635 Id.

636 Id. at 728.

637 79 Fed. Reg. at 22,263, 22,207-08.

638 The proposal’s lack of clarity with respect to floodplains is particularly problematic. The preamble provides that 

the term “floodplain” as used in the proposed rule does not necessarily equate to the 100-year floodplain defined by 

the Federal Emergency Management Agency (FEMA), but it does not specify how else a regulator might interpret 

the term. See 79 Fed. Reg. at 22,236. To add to the confusion, regulations from a number of federal agencies, 

including FEMA, refer to various floodplain categories. See, e.g., 7 C.F.R. § 761.2 (referencing 100-year and 500-

year floodplains); 14 C.F.R. § 1216.204 (same); 24 C.F.R. § 55.12 (same); 40 C.F.R. § 280.43 (referencing 25-year 

floodplain); 40 C.F.R. part 300, Appx. A (referencing 10-year, 100- year, and 500-year floodplains).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

355

animal community structures639); how deep subsurface connections can be; and how 

remote an adjacent water can be located from a jurisdictional water but still be within 

“reasonable proximity” of the jurisdictional water. These ambiguities are bound to result 

in inconsistent application of the rule and will further encourage citizen suit litigation 

against the forest industry. 

The breadth of the adjacency standard is self-evident and troubling. Entire tributary 

(including ditch) systems are now per se jurisdictional under the proposed rule. Such 

systems likely have subsurface and surface hydrologic connections to a variety of water 

features, and their floodplains and riparian areas could cover vast reaches of lands and 

include countless small wetlands, ponds, playas, and other man-made and natural 

waterbodies. All of these features could now be jurisdictional under the proposed rule 

depending how regulators exercise their discretion in applying the new definitions in the 

proposed rule. 

The proposed rule’s new adjacency concept is deeply flawed. The Agencies should 

withdraw the proposed provisions relating to adjacency and carry forward existing 

provisions that extend jurisdiction only to adjacent wetlands. (p. 15-18) 

Agency Response: The rule no longer includes a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provides that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now 

provides specific distance limits for “neighboring” waters. In addition, where the 

definition continues to use the term “floodplain,” it specifies the “100-year” 

floodplain. While the plurality questioned the use of the 100 year floodplain, the 

dissent did not, and for purposes of adjacency the agencies have established that a 

water must be located in the 100 year flood plain and within 1500 foot of the 

ordinary high water mark. Preamble, IV. The agencies do not view the 2008 

Guidance as an interpretation of the Clean Water Act, but to the extent the agencies 

have changed their interpretation, they disagree that they failed to explain their 

basis. Technical Support Document, I.C. The rule is based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for covered adjacent waters and covered tributaries. Preamble, III and IV, and 

Technical Support Document, I, VII and VIII.

Beet Sugar Development Foundation (Doc. #15368)

10.384 The preamble to the proposed rule states “that adjacent waters, rather than simply 

adjacent wetlands, are ‘waters of the United States.’”640 The preamble recognizes that the 

Supreme Court has not addressed the agencies’ jurisdiction over adjacent non-wetland 

waters but concludes that “it is reasonable to also assess whether non-wetland waters 

have a significant nexus, as Justice Kennedy’s opinion makes clear that a significant 

nexus is a touchstone for CWA jurisdiction.”641 But the agencies’ conclusion is legally 

unreasonable because the proposed rule extends CWA jurisdiction past Supreme Court 

guidance. In Riverside Bayview, the Court only addressed and approved of CWA 

 

639 79 Fed. Reg. at 22,263.

640 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22193. 

641 Id. at 22260.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

356

jurisdiction over adjacent wetlands.642 Likewise in Rapanos, the Court only considered 

wetlands.643 Further, Justice Kennedy applied his “significant nexus” test specifically to 

wetlands without any language or indication that he would approve of CWA jurisdiction 

over non-wetlands with a “significant nexus.”644 Even if Justice Kennedy would approve 

of the application of the “significant nexus” test to non-wetlands, that speculative 

approval would have no binding effect on future judicial review because the test is 

entirely dicta. If the agencies extend CWA jurisdiction to all “adjacent waters,” they do 

so without any indication that the Court would support the jurisdictional extension. (p. 

11-12)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

10.385 Both the existing and proposed rules include the word “neighboring” within the definition 

of “adjacent.”645 But the proposed rule adds a new overbroad definition for “neighboring” 

waters: “waters located within the riparian area or floodplain of a water identified in 

paragraphs (a)(1) through (5) of this section, or waters with a shallow subsurface 

hydrologic connection or confined surface hydrologic connection to such a jurisdictional 

water.”646 This proposed definition adds new and troubling aspects to the term 

“adjacent.” The proposed rule categorically covers all waters based on their location 

within a riparian area or floodplain without a case-by-case analysis of a “significant 

nexus.”647 The agencies’ categorical finding of jurisdiction based solely on location 

ignores the case-by-case determination requirement underlying Justice Kennedy’s 

“significant nexus” test.648 Justice Kennedy stated: “Absent more specific regulations, 

however, the Corps must establish a significant nexus on a case-by-case basis when it 

seeks to regulate wetlands based on adjacency.”649 The proposed regulations would fail 

Justice Kennedy’s test because the proposed rule per se extends jurisdiction based only 

 

642 See generally United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). In Riverside Bayview, the 

Court used the phrase “adjacent wetlands” fourteen times. Id. at 125, 130, 134, 135 n.9, 136–38. The Court only 

used the term “adjacent waters” once in Riverside Bayview. Id. at 134 (“For example, wetlands that are not flooded 

by adjacent waters may still tend to drain into those waters.”. And the one time the Court used the term “adjacent 

waters,” it referred to “waters of the United States” that were adjacent to wetlands. Id.

643 Rapanos v. United States, 547 U.S. 715, 729 (2006) (Scalia, J., plurality opinion).

644 Id. at 780 (“Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase 

‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, 

significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood 

as ‘navigable.’ When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall 

outside the zone fairly encompassed by the statutory term ‘navigable waters.’”)

645 33 C.F.R. § 328.3(c) (2013); Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. 

Reg. at 22263.

646 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22263.

647 Id. at 22207 (“Waters, including wetlands, that meet the proposed definition of adjacency, including the new 

proposed definition of neighboring, have a significant nexus to (a)(1) through (a)(3) waters, and this proposed rule 

would include all adjacent waters, including wetlands, as ‘waters of the United States’ by rule.”).

648 See id. at 22207 (“The agencies propose a definition of the term ‘neighboring,’ to identify those adjacent waters 

that the agencies concluded have a significant nexus to (a)(1) through (a)(3) waters.”).

649 Rapanos, 547 U.S. at 782 (Kennedy, J., concurring). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

357

on a water’s location within a riparian area or floodplain.650 The proposed rule contains 

no adequate explanation of why its conclusion that location equals a “significant nexus” 

would satisfy either Justice Kennedy’s regulatory specificity or case-by-case “significant 

nexus” requirements.651 The proposed rule’s definition of neighboring fails Justice 

Kennedy’s test. 

The proposed rule’s addition of the term “floodplain” automatically extends jurisdiction 

over waters in broad geographical areas without any concern for those waters’ nexus, or 

lack thereof, with “waters of the United States.” The current rule, for example, provides 

that “wetlands separated from other waters of the United States by man-made dikes or 

barriers” qualified as “adjacent.”652 The upshot of the current rule is that physically 

adjacent wetlands do not lose their physical proximity merely due to man-made features. 

But the proposed rule extends jurisdiction based on adjacency to waters in broad 

geographical floodplains when those waters may have no nexus to “waters of the United 

States.” For example, a man-made treatment pond that is not physically adjacent to a 

jurisdictional water but is located within the geographical area of a floodplain might be 

constructed to withstand a 100-year flooding event, thereby preventing any possible 

interchange between the man-made treatment pond and the flooding water. But the 

categorical inclusion of all waters within a floodplain would provide jurisdiction over the 

man-made treatment pond without consideration for the significance of the man-made 

treatment pond’s connectivity with “waters of the United States.” The categorical 

inclusion of all waters within a floodplain, without specific consideration for their nexus 

with jurisdictional waters has no basis in law or sound public policy.

The proposed rule also adds a shallow subsurface connection as a jurisdictional trigger. 

But the proposed rule does not define “shallow,” making only the blanket assertion that 

“[s]hallow subsurface connections are distinct from deeper groundwater connections, 

which do not satisfy the requirement for adjacency, in that the former exhibit a direct 

connection to the water found on the surface in wetlands and open waters.”653 The 

proposed rule’s use of the words “shallow” and “deeper” leaves the agencies and the 

regulated community guessing at the depth limitations of subsurface jurisdiction. Despite 

the EPA’s assertions that the proposed rule “[d]oes not regulate groundwater,”654 in many 

geographical areas the uppermost groundwater aquifer is relatively shallow. The 

overbroad definition of “neighboring” may therefore allow the agencies to regulate 

groundwater under the CWA. Furthermore, expanding federal jurisdiction to “shallow 

 

650 See Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22263 (providing for 

CWA jurisdiction over adjacent wetlands regardless of a significant nexus determination under proposed the 33 

C.F.R. § 328.3(a)(6)); id. at 22207 (“Waters, including wetlands, determined to have a shallow subsurface 

hydrologic connection . . . to an (a)(1) through (a)(5) water would also be ‘waters of the United States’ by rule as 

adjacent waters falling within the definition of ‘neighboring.’)

651 Only “other waters,” a different subcategory of “waters of the United States,” would require a case-by-case 

“significant nexus” finding. See id. (providing jurisdiction over “other waters” so long as they have a “significant 

nexus” to “waters of the United States” under proposed 33 C.F.R. § 328.3(a)(7)).

652 33 C.F.R. § 328.3(c) (2013).

653 Id. at 22208.

654 Waters of the United States: Proposal to Protect Clean Water, U.S. ENVTL. PROT. AGENCY, 

http://www2.epa.gov/uswaters.(last visited Oct. 27, 2014) (“What the Rule Does Not Do . . . Does not regulate 

groundwater.”) 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

358

subsurface connections” is unlikely to withstand judicial review.655 A “shallow 

subsurface connection” might not be so physically distant to qualify as “isolated” under 

SWANCC, but a shallow subsurface connection certainly fails the Rapanos plurality’s 

“continuous surface connection” requirement.656 This is so because a neighboring water 

with only a subsurface connection may very well have a “clear [surface] demarcation” 

between the wetlands and a navigable water.

Expanding the categories of surface and subsurface waters that fall within the 

jurisdictional reach of the agencies will have meaningful economic consequences for beet 

sugar processing facilities and factory grounds. If tenuous subsurface connectivity 

triggers “adjacency,” many features of sugar beet operations may not be sustainable: 

stormwater management in ponds, discharged water and materials management in 

lagoons, land application of treated water onto hay fields, stormwater ditches, stormwater 

mains, and lift stations will all be subject to an additional layer of costly federal 

regulation. If processing facilities may no longer irrigate on land or release stormwater 

from pile sites, the facilities will have to double the capacity of manmade treatment 

plants and build miles of discharge pipeline. BSDF estimates that the proposed rule could 

result in compliance costs of fifty to eighty million dollars for sugar beet processing 

plants.

Sugar beet farmers will face similar costs. If the proposed rule is implemented, farmers’ 

drain tiles will be subject to a new layer of additional regulation. Farmers will be 

compelled to take lands out of production to create, among other features, buffer strips, 

ponds, and impoundments. Many of BSDF members’ farms also operate on or near 

wetlands, specifically in the southern part of Minnesota. Should these isolated wetlands 

become subject to the regulatory requirements the CWA imposes, additional compliance 

costs will strain smaller farmers, potentially driving those farmers out of business. (p. 12-

14)

Agency Response: The rule no longer includes a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provides that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now 

provides specific distance limits for “neighboring” waters. In addition, where the 

definition continues to use the term “floodplain,” it specifies the “100-year” 

floodplain and establishes a 1,500-foot maximum distance for neighboring waters in 

the rule. Preamble, IV. That said, waters with a “confined surface hydrologic 

connection” may be adjacent where they are bordering, contiguous, or neighboring 

an (a)(1) through (a)(5) water. Even if a water does not meet the definition of 

neighboring a “confined surface hydrologic connection” may be an important factor 

considered in a case-specific significant nexus determination. Preamble, IV. The 

rule is based on the agencies’ careful examination of the science and the law to make 

 

655 See Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22263 (proposed 

April 21, 2014) (to be codified at 33 C.F.R. § 328.3(c)(2)).

656 Rapanos v. United States, 547 U.S. 715, 742 (2006) (Scalia, J., plurality opinion) (“Therefore, only those 

wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so 

that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the 

Act.”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

359

a determination of significant nexus for covered adjacent waters. Preamble, III and 

IV, and Technical Support Document, I and VIII. The agencies have concluded the 

benefits of the rule exceed the costs. Preamble, V and Economic Assessment in the 

docket.

Weyerhaeuser Company (Doc. #15392)

10.386 Under the proposed rule, all waters, not just wetlands, that are “adjacent” to a traditional 

navigable water, interstate water, territorial sea, jurisdictional impoundment, or tributary, 

are jurisdictional.657Although the proposed rule carries forward the definition of 

“adjacent” from the existing regulations (i.e., “bordering, contiguous, or neighboring”), it 

contains a new definition for the term “neighboring,” which “includes waters located 

within the riparian area or floodplain of” a traditional navigable water, interstate water, 

territorial sea, jurisdictional impoundment, or tributary, are jurisdictional.658

“Neighboring” waters also include those “with a shallow subsurface hydrologic 

connection or a confined surface hydrologic connection to such a jurisdictional water.”659 

The proposed rule leaves it to the regulators’ “best professional judgment” how to apply 

these new definitions in determining the extent of CWA jurisdiction.660

Thus, individual regulators have wide latitude to determine, e.g., which floodplain to use; 

how large a given riparian area is; or what it means to have a confined surface hydrologic 

connection. According to the Agencies, “[w]aters, including wetlands, that meet the 

proposed definition of adjacency, including the new proposed definition of neighboring, 

have a significant nexus to [traditional jurisdictional] waters, and this proposed rule 

would include all adjacent waters, including wetlands, as ‘waters of the United States’ by 

rule.”661

By extending the definition of “waters of the United States” to encompass all adjacent 

waters, not just wetlands, the Agencies have stretched the scope of CWA jurisdiction 

well beyond beyond existing regulations and guidance, and well beyond their lawful 

statutory authority. None of the applicable Supreme Court decisions have addressed, 

much less affirmed, whether CWA jurisdiction extends to adjacent nonnavigable waters 

that are not wetlands. Riverside Bayview, for example, upheld the assertion of CWA 

jurisdiction over wetlands abutting a navigable-in-fact waterway.662 Similarly, Rapanos

concerned the scope of ACOE’s authority to regulate adjacent wetlands.663 Importantly, 

“[n]o justice, even in dictum, addressed the question of whether all waterbodies with a 

significant nexus to navigable waters are covered by the Act.”664 Tellingly, not even the 

Agencies’ 2008 Rapanos Guidance goes so far as to address adjacent non-wetlands.

In addition to improperly extending CWA jurisdiction to adjacent non-wetlands, the 

proposed rule has defined “neighboring,” “riparian area,” and “floodplain” far too 

 

657 See 79 Fed. Reg. at 22,263. 

658 Id.

659 Id.

660 See id at 22,208.

661 79 Fed. Reg. at 22,207.

662 See 474 U.S. at 135.

663 San Francisco Baykeeper, 481 F.3d at 707.

664 Id.
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360

broadly. This new concept of adjacency runs headlong into both Justice Kennedy’s and 

the plurality’s opinions in Rapanos. Because all waters that are “adjacent” to tributaries 

(as newly defined under the proposed rule) are per se jurisdictional, the proposed rule 

will allow the Agencies to assert jurisdiction over waters that are “adjacent” to “drains, 

ditches, and streams remote from any navigable-in-fact water and carrying only minor 

water-volumes towards it.”665 Justice Kennedy’s opinion, however, does not leave room 

for such a categorical assertion of jurisdiction. Rather, he explained that a “more specific 

inquiry” is necessary to determine whether “mere adjacency” to nonnavigable tributaries 

is sufficient to establish CWA jurisdiction.666

Not only are the new definitions in the proposed rule overly broad, they are too vague to 

serve the Agencies’ goal of providing clarity through this rulemaking. Individual 

regulators have discretion in determining how to apply the definitions of “floodplain” 

(e.g., which floodplain interval to use667); how to apply the definition of “riparian area” 

(e.g., whether hydrology “directly influence[s]” ecological processes and plant and 

animal community structures668); how deep subsurface connections can be; how remote 

an adjacent water can be located from a jurisdictional water but still be within 

“reasonable proximity” of the jurisdictional water. These ambiguities are bound to result 

in inconsistent application of the rule and will further encourage citizen suit litigation 

against the forest industry.

The breadth of the adjacency standard is self-evident and troubling. Entire tributary 

(including ditch) systems are now per se jurisdictional under the proposed rule. Such 

systems likely have subsurface and surface hydrologic connections to a variety of water 

features, and their floodplains and riparian areas could cover vast reaches of lands and 

include countless small wetlands, ponds, playas, and other man-made and natural 

waterbodies. All of these features could now be jurisdictional under the proposed rule 

depending how regulators exercise their discretion in applying the new definitions in the 

proposed rule.

In sum, the proposed rule’s new adjacency concept is deeply flawed. The Agencies 

should withdraw the proposed provisions relating to adjacency and carry forward existing 

provisions that extend jurisdiction only to adjacent wetlands. (p. 8-10)

Agency Response: The agencies disagree with the commenter’s assertion that by 

changing “adjacent wetlands” to “adjacent waters,” they have expanded the scope 

of the definition of “waters of the United States.” Technical Support Document, I. 

The rule no longer includes a provision defining “neighboring” based on a surface 

 

665 Id. at 781.

666 Id. at 780, 786.

667 The proposal’s lack of clarity with respect to floodplains is particularly problematic. The preamble provides that 

the term “floodplain” as used in the proposed rule does not necessarily equate to the 100-year floodplain defined by 

the Federal Emergency Management Agency (FEMA), but it does not specify how else a regulator might interpret 

the term. See 79 Fed. Reg. at 22,236. To add to the confusion, regulations from a number of federal agencies, 

including FEMA, refer to various floodplain categories. See, e.g., 7 C.F.R. § 761.2 (referencing 100-year and 500-

year floodplains); 14 C.F.R. § 1216.204 (same); 24 C.F.R. § 55.12 (same); 40 C.F.R. § 280.43 (referencing 25-year 

floodplain); 40 C.F.R. part 300, Appx. A (referencing 10-year, 100-year, and 500-year floodplains).

668 Id. at 22,263.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

361

or subsurface hydrologic connection or provides that all waters within 

“floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now provides 

specific distance limits for “neighboring” waters. In addition, where the definition 

continues to use the term “floodplain,” it specifies the “100-year” floodplain and 

establishes a 1,500-foot maximum distance for neighboring waters in the rule.

Preamble, IV. The rule is consistent with the statute and caselaw. Technical Support 

Document, I.A. and C. The agencies do not view the 2008 Guidance as an 

interpretation of the Clean Water Act, but to the extent the agencies have changed 

their interpretation, they disagree that they failed to explain their basis. Technical 

Support Document, I.C.

Jensen Livestock and Land LLC (Doc. #15540)

10.387 The agencies have expanded the category of “adjacent wetlands” to “adjacent waters” 

and expanded the word “adjacent” to mean any open water within a floodplain or riparian 

area, the size and scope of both are undefined in the proposed rule and left to the “best 

professional judgment” of the regulator. The agencies have made the new category of 

“adjacent waters” virtually limitless, violating the CWA and contrary to the Supreme 

Court decisions. Justice Kennedy summed it up well when he stated, “Because such a 

nexus was lacking with respect to isolated ponds [in Riverside Bayview Homes], the 

Court held that the plain test of the statute did not permit the Corps’ action.” (Rapanos, J. 

Kennedy, concurring at 9). Geographically located in an undefined floodplain area does 

not remove a feature from being “isolated.” There are countless ponds and wetlands in 

floodplains or riparian areas that are considered “isolated.” Based on Riverside Bayview 

Homes and even Justice Kennedy’s opinion in Rapanos, these isolated features LACK a 

significant nexus connection to a TNW and therefore cannot be a “water of the U.S.,” 

putting the proposed definition beyond the bounds of the law itself. 

On more than one occasion during the comment period, the agencies have said the 

“adjacent waters” category does not include every water within a floodplain and riparian 

area, but simply those that have a connection to another jurisdictional water. Perhaps 

these officials should read the words that were placed in the Federal Register on April 21, 

2014. “The term neighboring, for purposes of the term “adjacent,” includes waters 

located within the riparian area or floodplain of a water identified in paragraphs (a)(1) 

through (5), or waters with a shallow subsurface hydrologic connection or confined 

surface hydrologic connection to such a jurisdictional water.” (Proposed Rule at 22207). 

The plain language of the regulation makes all waters within a floodplain or riparian area 

jurisdictional and any water left outside those areas that might have some surface or 

subsurface hydrologic connection can also be included. The agencies are out of bounds. 

Not every water within a floodplain and riparian area meet Justice Kennedy’s “significant 

nexus” test and therefore you cannot make them jurisdictional by rule. This change in the 

definition has a very real possibility to impact every single operation in the United States 

that is involved in production agriculture, usurping the federal-state partnership that 

underpins the CWA.

In Rapanos, the court evaluated jurisdiction over adjacent wetlands. In his concurring 

opinion, Justice Kennedy stated that the agencies could “identify categories of tributaries 

that, due to their volume of flow, their proximity to navigable waters, or other relevant 

considerations, are significant enough that wetlands adjacent to them are likely, in the 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

362

majority of cases, to perform important functions for an aquatic system incorporating 

navigable waters.” (Rapanos, J. Kennedy, concurring, at 24). In fact, the entire analysis 

of adjacency goes no further than wetlands adjacent to these major tributaries, but the 

Corps and EPA has expounded upon this language (major tributaries of TNWs) to say 

that any waters that are in the floodplain or riparian area of (a)(1)-(5) waters are 

considered adjacent. (a)(1)-(5) includes TNWs; interstate waters; the territorial seas; 

impoundments of TNWs, interstate waters or the territorial seas; and tributaries of TNWs, 

interstate waters, the territorial seas, or impoundments. (Proposed Rule at 22198-99). 

This is clearly an expansion of what the Supreme Court would consider “adjacent.” 

The term “adjacent” should have the plain meaning of the word if the true intent of the 

regulation is to provide clarity to the regulated community. Using the common definition 

of the word allows the vast majority of people to have a shared understanding of its 

meaning. The term “neighboring” within the agencies’ definition of “adjacent” is beyond 

the common understanding of what would be an “adjacent water” to a TNW. A simple 

google search should enlighten the agencies on the public’s understanding of the term 

“neighboring.” That search results in a definition for “neighboring” of “next to or very 

near another place; adjacent.”669 If the agencies’ definition of neighboring can include all 

waters within an undefined floodplain and riparian area they have gone well beyond the 

common understanding of the term, making the category of “adjacent waters” virtually 

limitless. 

Jensen Livestock and Land LLC. assert that the agencies expansive definition for 

“neighboring” in their per se jurisdictional category of “adjacent waters” is beyond the 

scope of the CWA. It is so expansive that it obliterates the federal-state partnership under 

the CWA, and pushes the outer limits of the Commerce Clause of the Constitution. Based 

on the Supreme Court’s decisions in Rapanos and SWANCC, the agencies cannot finalize 

a regulation that makes any open water within a floodplain or riparian area per se 

jurisdictional. Jensen Livestock and Livestock LLC strongly encourage the agencies not 

to change the “adjacent wetlands” category to “adjacent waters” and not to finalize their 

definition of “neighboring.” (p. 12-13)

Agency Response: The rule no longer provides that all waters within 

“floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now provides 

specific distance limits for “neighboring” waters. In addition, where the definition 

continues to use the term “floodplain,” it specifies the “100-year” floodplain and 

establishes a 1,500-foot maximum distance for neighboring waters in the rule.

Preamble, IV. The rule is consistent with the statute, caselaw and the Constitution. 

Technical Support Document, I.A., B. and C.

10.388 The agencies have failed to adequately distinguish “shallow subsurface flow” (or 

“shallow subsurface connection”) from groundwater, and through its use of the phrase 

has raised the question whether groundwater is truly excluded from the category of 

“waters of the U.S.” or not (Proposed Rule at 22207). What is Shallow Subsurface Flow? 

How shallow is it? And how is a landowner supposed to know whether the wetland in his 

pasture is connected through shallow subsurface flow? 

 

669 Google definition of “neighboring,” available at https://www.google.com/?gws_rd=ssl#q=define+neighboring. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

363

The proposed rule states, “The term neighboring, for purposes of the term “adjacent,” 

includes waters located within the riparian area or floodplain of a water identified in 

paragraphs (a)(1) through (5), or waters with a shallow subsurface hydrologic connection 

or confined surface hydrologic connection to such a jurisdictional water.” (Id.). The 

agencies use of the term “or” in this definition means that even geographically isolated 

waters outside of a floodplain and riparian area, but that have such shallow subsurface 

hydrologic connection, are automatically jurisdictional. It seems this definition is in 

direct conflict with the Supreme Court’s decision striking down the “any hydrologic 

connection” rule of jurisdiction because this definition allows automatic jurisdiction over 

waters that have only a hydrologic subsurface connection. 

When “waters with a shallow subsurface hydrologic connection” to (a)(1) through (5) 

waters are jurisdictional simply by virtue of that connection, without any consideration of 

the significance of that connection. Because EPA and the Corps have not excluded any

types of water from the term “waters” it could have the meaning of puddles, wetlands, 

ditches, or possibly damp depressions in a pasture. If that damp depression does have a 

shallow subsurface hydrologic connection it appears by the language of the proposed rule 

to be a jurisdictional water. 

Based on the intent of Congress to only regulate surface water via the CWA, it follows 

that the agencies should not use shallow subsurface flow, shallow subsurface hydrologic 

connections or the like to serve as the basis for determining jurisdiction. Regulating the 

surface water that has this “groundwater” flow is the same as regulating the groundwater 

connection. Is it the agencies’ position that a citizen could inject pollutants into this 

“shallow subsurface hydrologic connection” without running afoul of the CWA? If the 

answer is no then the agencies are regulating groundwater, running afoul of their stated 

exclusion of groundwater. 

There are also additional questions regarding this phrase. How deep must a landowner

dig to discover whether his pond is connected to another water via “shallow subsurface 

flow”? At what depth must he dig to know whether it is groundwater instead of “shallow 

subsurface flow?” The agencies stated intent in providing this proposed rule was to 

provide clarity to everyone, including landowners. Jensen Livestock and Land LLC. 

assert that the agencies’ decision to find adjacent waters with “shallow subsurface 

hydrologic connections” jurisdictional by rule puts an enormous burden on landowners to

have surveys and analysis done on each and every “water” on their property to determine 

whether they have this type of connection and whether they can utilize their waters or 

must ask permission from the government to conduct numerous activities near these 

waters. 

Jensen Livestock and Land LLC strongly encourages the agencies to consider not looking 

at groundwater as the source of any connection, as there is too much confusion regarding 

whether it is part of the regulated water. Additionally, there is no logical way for 

landowners to know whether these connections exist, unfairly placing them squarely in 

the sites of a regulatory enforcement action without any knowledge. (p. 17-18)

Agency Response: The rule explicitly excludes groundwater from the definition of 

“waters of the United States.” The rule does not include a provision defining 

adjacency and neighboring based on shallow subsurface flow. Preamble IV. While 
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364

the agencies acknowledge that shallow subsurface flow may be an important factor 

in evaluating a water on a case-specific significant nexus determination this does not 

mean that shallow subsurface connections are themselves “waters of the United 

States.” Preamble IV. The rule is consistent with the statute and caselaw. Technical 

Support Document, I.A and C. 

10.389 The definition of floodplain in the proposed rule has been left overly broad by the 

agencies, providing maximum administrative flexibility for regulators, while leaving 

livestock owners guessing whether water features on their property are or are going to be 

within the floodplain designated by a regulator. Additionally, it is unclear from the 

proposed rule whether the entire floodplain itself is a “water of the U.S.” 

According to the U.S. Geological Service the Mississippi River floodplain includes over 

30 million acres.670 The proposed rule does not prevent a regulator from determining that 

every open water within the 30 million acres that make up the entire Mississippi River 

floodplain is jurisdictional. Within those 30 million acres are numerous natural ponds,

perennial ditches, isolated wetlands, and isolated prairie potholes. Based on the proposed 

rule, the regulator decides using their “best professional judgment” the size and scope of 

the floodplain.671 The proposed rule continues that it can be the same as the FEMA 100-

year floodplain, but does not have to be. (Id. at 22236). 

Jensen Livestock and Land LLS. Assert this does not provide clarity, but expands the 

type and number of waters that are jurisdictional under the CWA, and flies in the face of 

the Supreme Court decisions that clearly stated there is a limit to federal jurisdiction.672 

The definition of floodplain in the proposed rule recognizes no limit when, and with the 

stroke a regulator’s pen, every water within a 30 million acre plot would become federal 

waters. Should the agencies choose a floodplain frequency such as 100-year, 50-year, or 

5-year, Jensen Livestock and Land LLC would make specific comments to that 

frequency. Because the agencies failed to provide any sort of specificity for the regulated 

community, we cannot meaningfully comment on every possibility the agency might 

choose. Instead, the agencies should withdraw the proposed rule, fill in the many gaps 

that are prevalent throughout the proposal and re-propose the rule. 

The agencies’ proposed rule also is unclear to the floodplain itself, leaving open the 

interpretation that the floodplain itself is a “water of the U.S.” If every open water in a 

floodplain is a “water of the U.S.,” then it could mean that when the water is out of its 

bank and covering the land in the floodplain, that is an “open water” and automatically a 

“water of the U.S.” And of course, just like tributaries, just because the water recedes and 

is not present does not mean that jurisdiction ends. Can the agencies clarify this 

confusion for the public. We understand that the agency stated in the proposed rules, 

“Absolutely no uplands located in ‘‘riparian areas’’ and ‘‘floodplains’’ can ever be 

‘‘waters of the United States’’ subject to jurisdiction of the CWA,” (Proposed Rule at 

22207), but if the floodplain itself is a “water of the U.S.” then there is actually no 

 

670 USGS, available at http://www.umesc.usgs.gov/reports_publications/psrs/psr_1997_02.html.

671 Proposed rule at 22209; “When determining whether a water is located in a floodplain, the agencies will use best 

professional judgment to determining which flood interval to use.”.

672 SWANCC at 172; “We cannot agree that Congress’ separate definitional use of the phrase “waters of the United

States” constitutes a basis for reading the term “navigable waters” out of the statute.”
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

365

“uplands” located within it. It is also unclear from the proposal what the agencies mean 

by “uplands,” making the proposal even more perplexing. Jensen Livestock and Land 

LLC. believe that floodplains should not be “waters of the U.S.” and the agencies should 

make that clear in a new proposed rule. 

Jensen Livestock and Land LLC believe the agencies to re-think their proposal to make 

all open waters in a floodplain or riparian area jurisdictional by rule. It is limitless. The 

agencies must find a way to limit their jurisdiction to within the bounds set for it by 

SWANCC and Rapanos. (p. 19-20)

Agency Response: The rule no longer provides that all waters within 

“floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now provides 

specific distance limits for “neighboring” waters. In addition, where the definition 

continues to use the term “floodplain,” it specifies the “100-year” floodplain and 

establishes a 1,500-foot maximum distance for neighboring waters in the rule.

Preamble, IV. The rule is consistent with the statute, caselaw and the Constitution. 

Technical Support Document, I.A., B. and C. The agencies reiterate that only 

waters, not land, are subject to today’s definition of “waters of the United States.” 

10.390 The proposed rule expands its “adjacent wetlands” category to include all “adjacent 

waters,” which now wraps every water within a floodplain or riparian in as a “water of 

the U.S.” by rule. While Jensen Livestock and Land LLC believe that this category 

should be expanded as such, we also disagree with the agencies vague description of 

“riparian area.” The agencies state, 

“The term neighboring, for purposes of the term “adjacent,” includes waters 

located within the riparian area or floodplain of a water identified in paragraphs 

(a)(1) through (5), or waters with a shall subsurface hydrologic connection or 

confined surface hydrologic connection to such a jurisdictional water. The term 

riparian area means an area bordering a water where surface or subsurface 

hydrology directly influence the ecological processes and plant and animal 

community structure in that area.” (Proposed Rule at 22207). 

Jensen Livestock and Land LLC. would like the agencies to explain how a livestock 

producer should know whether a natural pond, or puddle in his pasture lies within an area 

where the “surface or subsurface hydrology directly influences the ecological processes 

and plant and animal community structure in that area?” The agencies have again failed 

miserably in providing any clarity to the public, its field personnel, or anyone else. All 

the agencies have done is provide themselves enough flexibility to find any water 

(however broad that term can be expanded) to be a “water of the U.S.” Jensen Livestock 

and Land LLC. asserts that the agencies definition of “riparian area” is vague at best and 

does not articulate any discernible limit to their authority, violating both the CWA itself 

and the Commerce Clause of the Constitution. (p. 20)

Agency Response: The rule no longer includes a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provides that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Preamble, IV. The rule 

is consistent with the statute, Supreme Court decisions, and the Constitution. 

Technical Support Document, I.A., B., and C. 
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366

10.391 The agencies’ proposed rule leaves open the question whether they will assert jurisdiction 

over groundwater through contradictory statements and ill-defined terms and phrases. 

While under Section I. the agencies have specifically excluded “Groundwater, including 

groundwater drained through subsurface drainage systems” they turn around and find that 

connection through “shallow subsurface” flows can make a water an “adjacent water” 

and therefore jurisdictional. (Proposed Rule at 22207). It is hard for a reasonable person 

to see how “groundwater” is different than “shallow subsurface” flow. It appears that 

“groundwater” includes “shallow subsurface” flow, and the agencies have failed to 

distinguish the two from each other. It is also unclear how a landowner could dig up 

some ground, and seeing water, whether they would know whether they are obstructing 

“shallow subsurface” flow or are at groundwater. EPA official Robert Perciascepe stated 

at a Congressional hearing before the House Science Committee on July 9, 2014 that the 

“shallow subsurface” flow is not jurisdictional. If true, could a landowner not cut off the 

“shallow subsurface flow” and prevent their natural pond from being a “water of the 

U.S.?” 

The federal government cannot divert or otherwise control water for its own uses 

regardless of the authority cited without a reserved water right or a state-adjudicated 

water right. Never has it been suggested that the scope of the CWA extends to the 

regulation of groundwater.673

States have their own system of water law that governs public and private water rights 

within their borders. The western states in particular have adopted some form of the prior 

appropriation doctrine (prior appropriation), or “first in time, first in right,” regarding 

surface water and many have, to some degree, integrated this approach into their system 

of ground water law. Under the prior appropriation doctrine, water rights are obtained by 

diverting water for “beneficial use”, which can include a wide variety of uses such as 

domestic use, irrigation, stock-watering, manufacturing, mining, hydropower, municipal 

use, agriculture, recreation, fish and wildlife, among others, depending on state law. The 

extent of the water right is determined by the amount of water diverted and put to 

beneficial use. 

Any imposition by the federal government that infringes on property rights based on 

settled state water law would constitute takings under the Fifth Amendment to the United 

States Constitution and would require just compensation. 

Jensen Livestock and Land LLC. agrees that the agencies’ properly excluded 

groundwater from jurisdiction under the CWA, and similarly, have no jurisdiction over 

“shallow subsurface flow.” This should not be a valid consideration under the “adjacent 

waters” analysis. (Proposed Rule at 22207). Similarly, it should not be a consideration 

under the significant nexus determination under the “other waters” or any other category. 

(p. 25-26)

 

673 Rapanos, J. Scalia, at 24 (“First, that the adjacent channel contains a “wate[r] of the United States,” (i.e., a 

relatively permanent body of water connected to traditional inter- state 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.)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

367

Agency Response: The rule explicitly excludes groundwater from the definition of 

“waters of the United States.” The rule does not include a provision defining 

adjacency and neighboring based on shallow subsurface. Preamble IV. While the 

agencies acknowledge that shallow subsurface flow may be an important factor in 

evaluating a water on a case-specific significant nexus determination this does not 

mean that shallow subsurface connections are themselves “waters of the United 

States.” Preamble IV. The rule is consistent with the statute and caselaw. Technical 

Support Document, I.A and C. This rule does not constitute a taking of private 

property in violation of the Fifth Amendment. Technical Support Document, I.C.

Bayer CropScience (Doc. #16354)

10.392 BCS is convinced that, contrary to the agencies’ position, the overriding question in the 

rulemaking is not one of science, but of legal authority. The proposed rule would create a 

sweeping jurisdictional expansion of federal regulation of minor waters and manmade 

conveyances based on inappropriate technical assumptions that overlook the legal and 

institutional boundaries established by Congress and interpreted by the Supreme Court 

(SC). In Rapanos v. United States (Rapanos) and the Solid Waste Agency of Northern 

Cook County v. U.S. Army Corps of Engineers (SWANCC) decision that preceded it, the 

Supreme Court specifically rejected the notion that “any hydrological connection” is a 

sufficient basis for federalization of conveyances. In SWANCC, the SC held that CWA 

jurisdiction did not extend to isolated “non-navigable” intrastate ponds by virtue of 

migratory birds using them as habitat. 531 U.S. 159, 174 (2001). Five years later, in 

Rapanos the SC was asked whether wetlands near ditches or man-made drains that 

eventually connected to traditionally navigable waters were “waters of the U.S.” Justice 

Scalia, writing for the plurality, concluded that only those wetlands with a continuous 

surface connection to bodies that are “waters of the U.S.”...are “adjacent to” such waters 

and covered by the Act. 547 U.S. 715, 742 (2006). The plurality opinion also concluded 

that “waters of the United States” only included “relatively permanent, standing or 

continuously flowing bodies of water ‘forming geographic features’” such as streams, 

rivers, lakes and oceans and does not include channels that flow intermittently, 

ephemerally or periodically after rain. Justice Kennedy, while concurring with the 

plurality judgment, added that the Corps must establish that a “significant nexus” exists 

when it asserts jurisdiction over wetlands adjacent to non-navigable tributaries. In his 

concurrence, Justice Kennedy rejected the agencies’ assertion of jurisdiction over nonnavigable waters based on “any hydrological connection” to navigable waters.” 547 U.S. 

at 784. He repeatedly cautioned that “remote,” “insubstantial,” “speculative,” or “minor” 

flows are insufficient to establish a significant nexus. A significant nexus exists “if the 

wetlands...significantly affect the chemical, physical and biological integrity of other 

covered waters more readily understood as “navigable.” 547 U.S. 715, 779 (2006). BCS 

concludes that the proposed rule ignores most of the limits placed on the agencies and 

selectively extrapolates from Justice Kennedy’s opinion those aspects which suit the 

agencies’ interests. Not only is the science lacking to justify such an expansion, but the 

legal authority too. (p. 4)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is not 

based on the “any connection theory” but is instead based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

368

for specified waters and to provide that certain other waters may be jurisdictional 

where a case-specific determination has found a significant nexus. Preamble, III 

and IV, and Technical Support Document, I.A., B., C. and II.

Glenn-Colusa Irrigation District (Doc. #16635)

10.393 The Proposed Rule’s new definition of “adjacent” significantly expands jurisdiction 

without sufficient case-by-case analysis. In the Proposed Rule, all types of waterbodies 

(not just wetlands, as was the case previously) that are “adjacent” to WOTUS would be 

jurisdictional by rule. In addition to previous definitions of “adjacent” (separated by manmade dikes, berms, dunes, etc.), the category would now include, by rule, all waterbodies 

located within the riparian area or floodplain of a “traditional” WOTUS. Further, where 

waterbodies are adjacent to impoundments or tributaries of traditional navigable waters, 

interstate waters, or territorial seas, under the Proposed Rule these waters would also be 

jurisdictional by rule. “Neighboring” waters would include “waters located within the 

riparian area or floodplain” of WOTUS, or “waters with a shallow subsurface hydrologic 

connection or confined surface hydrologic connection” to WOTUS. Like with the 

proposed definition of “tributaries,” the new definition of “adjacent” does not require any 

nexus analysis, and thus arguably expands the reach of the CWA to include entire 

floodplains or riparian areas that may not have been previously regulated under the 

CWA. 

The Proposed Rule broadly asserts jurisdiction by rule over waters (not just wetlands) 

adjacent to more traditional navigable waters. Specifically, the Proposed Rule defines 

“riparian area” to mean “transitional areas between aquatic and terrestrial ecosystems that 

influence the exchange of energy and materials between those ecosystems.”674 The 

Proposed Rule defines “floodplain” to mean “an area bordering inland or coastal waters 

that was formed by sediment deposition from such water under present climatic 

conditions and is inundated during periods of moderate to high water flows.”675 The 

Proposed Rule also states that when adjacent water and neighboring water are in contact 

with the same shallow aquifer, a shallow subsurface connection exists.676 These new 

definitions and their accompanying explanations are an attempt to demonstrate a 

hydrologic connection or a chemical, physical, or biological effect for purposes of the 

relatively permanent and significant nexus tests. In so doing, however, the Agencies 

expose the flaw in their approach—specifically, the failure to undertake a case-bycase 

analysis to determine whether a particular waterbody is sufficiently adjacent under the 

relatively permanent test or significant nexus test. 

Thus, the Proposed Rule broadens the scope of waterbodies that would be jurisdictional 

by rule, here, by including definitions for “adjacent,” “riparian area,” and “floodplain,” 

which are not defined in the existing WOTUS definition. This approach impermissibly 

contravenes U.S. Supreme Court precedent requiring case-by-case analysis under the 

relatively permanent or the significant nexus tests, and shifts the burden of demonstrating 

jurisdiction from the Agencies to the regulated communities. (p. 5-6)

 

674 79 Fed. Reg. 22207.

675 Id.

676 Id. 
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369

Agency Response: The rule no longer includes a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provides that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now 

provides specific distance limits for “neighboring” waters. In addition, where the 

definition continues to use the term “floodplain,” it specifies the “100-year” 

floodplain and establishes a 1,500-foot maximum distance for neighboring waters in 

the rule. Preamble, IV. The rule is based on the agencies’ careful examination of the 

science and the law to make a determination of significant nexus for covered 

adjacent waters. Preamble, IV and Technical Support Document, I and VIII. The 

rule does not shift the burden of proof to the regulated community; the federal 

government must demonstrate that a water is a "water of the United States" under 

the CWA and its implementing regulations. 

Association of American Railroads (Doc. #15018.1)

10.394 The Agencies must remove “floodplain” areas from the definition of Waters of the 

United States, as this term is undefined and includes features that exceed the scope of the 

CWA and constitutional limitations. 

● The proposed rule does not satisfy Due Process and Fair Notice doctrines 

because it fails to define critical terms such as “upland,” “waters,” and 

“floodplain.”

● The Agencies must remove “riparian” from the definition of Waters of the 

United States, as this term is so poorly defined it does not satisfy Due Process and 

Fair Notice doctrines and will create excessive uncertainty and cost for the 

regulated community (p. 2)

Agency Response: The rule no longer provides that all waters within 

“floodplains,” and “riparian areas” are “adjacent.”Instead, the rule now provides 

specific distance limits for “neighboring” waters. In addition, where the definition 

continues to use the term “floodplain,” it specifies the “100-year” floodplain and 

establishes a 1,500-foot maximum distance for neighboring waters in the rule. 

Preamble, IV. The rule is consistent with the Constitution. Technical Support 

Document, I.C.

10.395 The proposed rule determines that all “waters” within the floodplain or riparian area of a 

jurisdictional water or that have a shallow subsurface hydrological connection to a 

jurisdictional water categorically have a significant nexus and will be jurisdictional by 

rule. 79 Fed. Reg. at 22,207. The addition of floodplain and riparian areas represents a 

substantial expansion of the definition of Waters of the United States, is not supported or 

justified by science or the administrative record, exceeds the Agencies’ authority under 

the enabling CWA statute, and applicable Constitutional provisions, is arbitrary, 

capricious, and constitutes an abuse of discretion. 

1. “Adjacent waters” is Undefined and Vastly Expands CWA jurisdiction. The 

Agencies are expanding the definition of Waters of the United States to include 

“neighboring” waters as Waters of the United States. The proposed rule asserts 

jurisdiction over “[a]ll waters, including wetlands, adjacent to” a traditional 

navigable water, interstate water, territorial sea, impoundment, or tributary. 79 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

370

Fed. Reg. at 22,263 – 22,274. There is nothing in the proposed rule that limits or 

explains what is meant by the term “adjacent waters.” In the proposed rule, 

“adjacent” is defined as “bordering, contiguous, or neighboring.” Id. The 

proposed rule expands the meaning of “adjacency” with its new, broader 

definition of the word “neighboring” and undefined terms “bordering” and 

“contiguous” and the addition of the terms “floodplain,” “riparian areas” and 

“subsurface” connections. This broad language allows the agencies to treat 

essentially any feature adjacent to a Water of the United States as a jurisdictional 

“water” by virtue of its adjacency. (p. 10-11)

Agency Response: The rule no longer includes a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provides that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now 

provides specific distance limits for “neighboring” waters. In addition, where the 

definition continues to use the term “floodplain,” it specifies the “100-year” 

floodplain and establishes a 1,500-foot maximum distance for neighboring waters in 

the rule. Preamble, IV. The rule is based on the agencies’ careful examination of the 

science and the law to make a determination of significant nexus for covered 

adjacent waters. Preamble, IV and Technical Support Document, I and VIII. The 

rule is consistent with the statute, Supreme Court decisions, and the Constitution. 

Technical Support Document, I.A., B., and C. 

Union Pacific Railroad Company (Doc. #15254)

10.396 The Proposed Rule’s regulation of “adjacent waters” and “other waters” expands CWA 

jurisdiction, contrary to the limitations set forth in both the plurality opinion and Justice 

Kennedy’s concurring opinion in Rapanos, and further confuses the extent to which the 

Agencies will seek to regulate features that have no direct surface connection to 

traditional navigable waters, provides no fair notice to stakeholders, and rather than 

serving the professed goals of “increased clarity” and “greater predictability,”677 will 

result in continuing inconsistent jurisdictional determinations by the Agencies.678

The Proposed Rule would extend jurisdiction to “[a]ll waters, including wetlands,” 

adjacent to” a traditional navigable water, interstate water, territorial sea, impoundment, 

or tributary. 79 Fed. Reg. at 22,263. The preamble to the Proposed Rule states that the 

term “water” is used “in categorical reference to rivers, streams, ditches, wetlands, ponds, 

lakes, playas, and other types of natural or man-made aquatic systems.” Id. at 22,191 n.3. 

Thus, it appears that the Agencies intend to treat essentially any feature that is wet as a 

“water” that could be jurisdictional by virtue of adjacency, criteria that is overbroad, 

confusing, and contrary to the express limitations set forth by the Supreme Court. 

 

677 See 79 Fed.Reg. 22,189. 

678 As Justice Kennedy observed, the U.S. General Accounting Office found variations in jurisdictional 

determinations among Corps’ district offices, and the breadth of the Corps’ standard at issue in Rapanos “which 

seems to leave wide room for regulation or drains, ditches and streams remote from any navigable-in-fact water and 

carrying only minor water volumes toward it – precludes its adoption as the determinative measure . . .” Id., 547 

U.S. at 781.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

371

SWANCC rejected such an approach and held that regulation of isolated waters was 

beyond the scope of the Agencies’ CWA authority. SWANCC, 531 U.S. at 168. Similarly, 

in Rapanos, the plurality made clear that only those waters with a “continuous surface 

connection to bodies that are ‘waters of the United States’ in their own right” can be 

considered “adjacent” for purposes of CWA jurisdiction. Rapanos, 547 U.S. at 742. 

Justice Kennedy’s concurrence also rejected the Corps’ theory of jurisdiction based on 

“mere adjacency.” Rapanos, 547 U.S. at 742, 786-787. Under Justice Kennedy’s 

formulation, “[a] more specific inquiry” is necessary. Id. Yet under the Proposed Rule, 

features that are adjacent to remote and insubstantial tributaries would be per se 

jurisdictional, contrary to the limits imposed by Rapanos. 

The expansive standards and convoluted definitions in the Proposed Rule would allow 

the Agencies to assert jurisdiction over “adjacent waters” that are “neighboring” within 

the same floodplain or riparian area based even on a “shallow subsurface” hydrologic 

connection. What constitutes floodplain or riparian is unclear. Moreover, groundwater 

hydrogeology is complex, and groundwater has traditionally been regulated by States and 

local governments. It is clearly not a “navigable water” under the CWA statute, and 

jurisdiction based on subsurface groundwater flows was clearly not contemplated as a 

basis for jurisdiction in the rulings of the Supreme Court. Additionally, groundwater 

migration – shallow subsurface or otherwise – cannot be easily determined and can 

require installation of monitoring wells, modeling, or other expert analysis. This is hardly 

consistent with the goal of making “the process of identifying ‘waters of the United 

States’ less complicated and more efficient,” as professed in the preamble to the Proposed 

Rule. 79 Fed.Reg. at 22,190. (p. 20-21)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is not 

based on the “any connection theory” but is instead based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for specified waters, including covered adjacent waters, and to provide that certain 

other waters may be jurisdictional where a case-specific determination has found a 

significant nexus. Preamble, III and IV, and Technical Support Document, I.A., B., 

C. and II. The rule no longer provides that all waters within “floodplains,” and 

“riparian areas” are “adjacent.” Instead, the rule now provides specific distance 

limits for “neighboring” waters. In addition, where the definition continues to use 

the term “floodplain,” it specifies the “100-year” floodplain and establishes a 1,500-

foot maximum distance for neighboring waters in the rule. Preamble, IV. 

The rule explicitly excludes groundwater from the definition of “waters of the 

United States.” The rule does not include a provision defining adjacency and 

neighboring based on shallow subsurface flow. Preamble IV. While the agencies 

acknowledge that shallow subsurface flow may be an important factor in evaluating 

a water on a case-specific significant nexus determination this does not mean that 

shallow subsurface connections are themselves “waters of the United States.” 

Preamble IV. The rule is consistent with statute and caselaw. Technical Support 

Document, I.A. and C.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

372

Airports Council international (Doc. #16370)

10.397 The EPA’s Proposed Rule ignores the plurality opinion authored by Justice Scalia in 

Rapanos v. United States, 547 U.S. 715 (2006) concluding that "waters of the United 

States" are "relatively permanent, standing or flowing bodies of water"; they are not 

"occasional," "intermittent," or "ephemeral" flows. On the question of connectivity, 

Justice Scalia stated that a mere "hydrological connection" is not sufficient to qualify a 

wetland as covered by the CWA; it must have a "continuous surface connection" with a 

"water of the United States" that makes it "difficult to determine where the 'water' ends 

and the 'wetland' begins."The EPA should reevaluate its reliance on court precedent to 

ensure a balanced approach to the justices’ reading of the issue in Rapanos v. United 

States. Moreover, the science used in the form of the EPA’s connectivity study 

extrapolates connectivity in an overly broad way that does not support a regulatory 

approach in its lack of determining the significance of connectivity in context. The 

proposed treatment of “tributary” and “adjacent” waters as suggested in the Proposed 

Rule will result in an unwarranted and significant expansion of features (both natural and 

artificial) subject to regulation under the CWA as WOTUS. The EPA should adjust its 

regulatory focus to address natural features of greater ecological importance/significance, 

and should clarify that features of the built environment, such as is typical of airports, are 

not within the intended scope of the CWA. (p. 3)

Agency Response: The rule is based on the agencies’ careful examination of the 

science and the law to make a determination of significant nexus for covered 

adjacent waters and covered tributaries. Preamble, III and IV and Technical 

Support Document, I., II, VII and VIII. The rule is consistent with decisions of the 

Supreme Court, I.C. The agencies longstanding interpretation of the CWA is that is 

that it is not relevant whether a water is man-altered or man-made for purpose of 

determining whether a water is jurisdictional under the CWA. Technical Support 

Document, I.C. The rule is narrower in scope than the existing rule and is consistent 

with the decisions of the Supreme Court. Technical Support Document, I.C.

Tri-State Generation and Transmission Association, Inc. (Doc. #16392)

10.398 While Tri-State appreciates the complexities of the Rapanos Supreme Court decision, 

legal issues remain regarding whether the proposed rule is an appropriate application of 

this decision in conjunction with earlier decisions (i.e., United States v. Riverside 

Bayview Homes, 474 U.S. 122 (1985) and Solid Waste Agency of Northern Cook County 

v. U.S. Army Corps of Engineers, 531 U.S. 159(2001 )). In Rapanos, the Supreme Court 

issued a split decision with four Justices agreeing to a plurality opinion written by Justice 

Antonin Scalia, with a separate concurring opinion from Justice Anthony Kennedy. As 

stated in the WAC comments, earlier Supreme Court precedent requires that in these split 

decisions "the holding of the Court may be viewed as that position taken by those 

Members who concurred in the judgment on the narrowest grounds" (internal quotations 

omitted).679 Justice Scalia's plurality interpreted the phrase "waters of the United States" 

to include only "those relatively permanent, standing or continuously flowing bodies of 

water 'forming geographic features' that are described in ordinary parlance as 'streams [,] 

 

679 Marks v. United States, 430 U.S. at 188 and 193 (1977)
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373

... oceans, rivers, [and] lakes," and would exclude "channels through which water flows 

intermittently or ephemerally, or channels that periodically provide drainage for 

rainfall."680 In contrast, Justice Kennedy focused on the "significant nexus to a 

traditionally navigable water'', defined further as "more than speculative or 

insubstantial."681 (p. 2)

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

The rule is consistent with caselaw. Technical Support Document, I.C.

10.399 The concurring Justices continue with an additional definition related to adjacent 

wetlands. The plurality found that "only those wetlands with a continuous surface 

connection to bodies that are 'waters of the United States' in their own right, so that there 

is no clear demarcation between 'waters' and wetlands, are 'adjacent to' such waters and 

covered by the Act,".682Kennedy's opinion does not allow for jurisdiction based on 

"adjacency" to features that are not "major tributaries."683 With respect to the nonnavigable ditch at issue in Carabell (that was consolidated into Rapanos), Justice 

Kennedy's concurrence stated, "mere adjacency to a tributary of this sort is insufficient; a 

similar ditch could just as well be located many miles from any navigable-in-fact water 

and carry only insubstantial flow toward it."684 In such situations, he found that "a more 

specific inquiry" was necessary.685 Under the proposed rule, wetlands (and non-wetlands) 

that are adjacent to such remote and insubstantial tributaries (including jurisdictional 

ditches) would be per se jurisdictional. Asserting per se jurisdiction over any water or

wetland within the floodplain or riparian area of a water of the United States directly 

contradicts Justice Kennedy's opinion. Based on WAC's assessment of the single 

Rapanos holding, the concurring Justices agreed that a mere hydrological connection is 

not enough to establish jurisdiction under the CWA, that the CW A does not extend to 

features distant from navigable waters and carrying only minor volumes of flow, and that 

there must be a meaningful relationship between non-abutting wetlands and traditionally

navigable waters for those non-abutting wetlands to be jurisdictional.686 In contrast, the 

Agencies focused primarily on Kennedy's concurring opinion and provided further 

support from the dissenting Justices in the proposed rule. The Agencies must evaluate the 

proposed rule in light of the single holding of Rapanos and amend as required by law. (p.

2-3)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is based on 

the agencies’ careful examination of the science and the law to make a 

determination of significant nexus for covered adjacent waters. Preamble, IV and 

Technical Support Document, I and VIII. The rule no longer provides that all 

 

680 Rapanos. 547 U.S. at 739.

681 Id at 780

682 Id at 742

683 Id at 780.

684 Id at 786.

685 Id.

686 WAC comments at page 16.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

374

waters within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule

now provides specific distance limits for “neighboring” waters. In addition, where 

the definition continues to use the term “floodplain,” it specifies the “100-year” 

floodplain and establishes a 1,500-foot maximum distance for neighboring waters in 

the rule. Preamble, IV

Washington County Water Conservancy District (Doc. #15536)

10.400 Riverside Bayview’s holding is limited to adjacent wetlands. The Supreme Court first 

interpreted the phrase “waters of the United States” in 1985, In the case of United States 

v. Riverside Bayview Homes, Inc. (Riverside Bayview).687 Riverside Bayview involved a 

wetland adjacent to a body of navigable water that was deemed jurisdictional because it 

was “inseparably bound up” with traditional navigable waters.688 Noting that “the [Army] 

Corps must necessarily choose some point at which water ends and land begins,”689 the 

Court upheld the Army Corps’ interpretation of “the waters of the United States” to 

include wetlands that “actually abut[ted] on” traditional navigable waters.690 Riverside

Bayview’s holding is limited to its facts, where “the area characterized by saturated soil 

conditions and wetland vegetation extended beyond the boundary of respondent’s 

property to Black Creek, a navigable waterway.” Because the Court’s holding was based

on the uniquely inseparable nature of adjacent wetlands, it does not extend to other types 

of areas such as geographically-isolated ponds, non-adjacent wetlands, and other isolated 

areas. Thus, the Agencies’ reliance on Riverside Bayview in the context of other types of 

waters is misplaced. (p. 5)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

10.401 Rapanos should be applied narrowly and consistently with prior Supreme Court decisions 

and CWA policies. Supreme Court’s 2006 decision in Rapanos v. United States

addressed the question of whether the Court’s prior holding in Riverside Bayview

regarding wetlands should be interpreted to include not only wetlands directly adjacent to 

navigable waters, but also wetlands adjacent to ditches and manmade drains that 

eventually drain into traditional navigable waters.691 After reviewing two decisions by the 

Court of Appeals to affirm the Agencies’ jurisdiction over such waters, a majority of the 

Justices in Rapanos agreed to remand both cases to the appellate court for further 

proceedings, but a majority could not agree on the grounds for remand. The Court’s 4-1-4 

decision included a plurality opinion authored by Justice Scalia, two concurring opinions 

authored by Chief Justice Roberts and Justice Kennedy, and two dissenting opinions 

authored by Justice Stevens and Justice Breyer.692

The two Rapanos opinions with the most legal significance are Justice Scalia’s plurality 

opinion, which announced the judgment of the Court, and Justice Kennedy’s concurring 

 

687 474 U.S. 121, 134-35 (1985) (“Riverside Bayview”).

688 Id. at 131-34

689 Id. at 132.

690 Id. at 135

691 Rapanos v. United States, 547 U.S. 715, 730 (2006).

692 Justices Souter, Ginsburg, and Breyer joined in Justice Stevens’ dissent.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

375

opinion, which concurred in the judgment but not in the rationale underlying the plurality 

opinion. As described in Justice Scalia’s plurality opinion, CWA jurisdiction would 

extend only to “relatively permanent, standing, or continuously flowing bodies of water” 

connected to traditional navigable waters, and to wetlands with a continuous surface 

connection to such relatively permanent water. The plurality opinion states that 

jurisdictional waters “do[] not include channels through which water flows intermittently 

or ephemerally, or channels that periodically provide drainage for rainfall.”693 In contrast, 

Justice Kennedy’s concurring opinion announced an alternative rationale for remanding 

to the Court of Appeals. Under Justice Kennedy’s opinion, CWA jurisdiction would 

extend to wetlands adjacent to waters that have a “significant nexus” to traditional 

navigable waters.694

Unlike SWANCC, which included an express holding adopted by a majority of the

Supreme Court, Rapanos did not provide a clear holding for courts and the regulated 

community to follow.695 Because the majority in Rapanos agreed only to the outcome and 

not to the grounds for the remand, it is unknown how the Supreme Court will ultimately 

apply Rapanos to different facts. Various members of the Supreme Court offered 

differing interpretations of the holding in Rapanos. For example, Justice Roberts found it 

“unfortunate that no opinion commands a majority of the Court on precisely how to read 

Congress’ limits on the reach of the [CWA],” noting that “[l]ower courts and regulated 

entities will now have to feel their way on a case-by case basis.”696 The appellate courts 

have also offered differing interpretations of the holding in Rapanos.

697 The Supreme 

Court has denied petitions seeking review of various lower court decisions interpreting 

Rapanos, but the Court’s decisions to decline review have no precedential weight. In the 

 

693 Rapanos, 547 U.S. at 739

694 Id. at 779 (citing 33 U.S.C. § 1251(a)).

695 The Court’s decision included a plurality opinion authored by Justice Scalia, two concurring opinions authored 

by Chief Justice Roberts and Justice Kennedy, and two dissenting opinions authored by Justice Stevens and Justice 

Breyer. Justices Souter, Ginsburg, and Breyer joined in Justice Stevens’ dissent. Justice Roberts concurred in the 

grounds and the result as stated in Justice Scalia’s plurality opinion, while Justice Kennedy filed an opinion 

concurring in the result but offering a different rationale for remand.

696 Rapanos, 547 U.S. at 758.

697 Since the Rapanos decision, the U.S. Courts of Appeal for the Seventh, Ninth, and Eleventh Circuits have 

concluded that Justice Kennedy’s concurrency provides the controlling test of CWA jurisdiction, relying on Marks

v. United States, which found that “[w]hen a fragmented Court decides a case and no single rationale explaining the 

result enjoys the assent of five Justices, the ‘holding of the Court may be viewed as that position taken by those 

Members who concurred in the judgments on the narrowest grounds.’” 430 U.S. 188, 193 (1977) (quoting Gregg v.

Georgia, 428 U.S. 153, 169 n.15 (1976)). See also, United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 

2006), cert. denied, 552 U.S. 810 (2007); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007), 

cert. denied, 552 U.S. 1180 (2008); United States v. Robison, 505 F.3d 1208, 1211 (11th Cir. 2007). In contrast, the 

U.S. Courts of Appeal for the First Circuit concluded that CWA jurisdiction may be found under either the plurality 

or Kennedy tests. United States v. Johnson, 467 F.3d 56 (1st Cir. 2006), cert. denied, 552 U.S. 948 (2007) (reversing 

lower court ruling finding of a CWA violation by cranberry bog farmers and remanding for fact finding on whether 

waters were jurisdictional under plurality or Kennedy opinion).
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376

Supreme Court’s words, such decisions carry “no implication whatever regarding the 

Court’s views on the merits of a case which it has declined to review.”698

Thus, it is unclear how Rapanos should be applied; even in cases involving the same set

of facts presented in that case—wetlands adjacent to ditches and manmade drains that 

drain into traditional navigable waters. It is even less clear how Rapanos should be 

applied to other areas. Because Rapanos does not clearly address whether even an 

adjacent wetland is jurisdictional, it cannot support the Agencies’ assertion of jurisdiction 

over areas with more attenuated connections to traditional navigable waters than adjacent 

wetlands.

In short, the Agencies cannot rely on Rapanos for their exercise of jurisdiction over 

nonadjacent and non-wetland areas. Rapanos did not overturn SWANCC or any of the 

Court’s other decisions addressing jurisdiction under the CWA. Given the limitations and 

uncertainty regarding the scope of the holding in Rapanos, the Agencies should apply an 

interpretation of Rapanos that best comports with SWANCC and other cases in which a 

majority of the Court adopted a clear holding, and which best comports with all of the 

CWA’s policies, not just its ecological goals. Because the Proposed Rule fails to apply 

such an interpretation, it must be revised. (p. 6-8)

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

The rule is consistent with caselaw. Technical Support Document, I.C.

National Wildlife Federation (Doc. #15020)

10.402 We support the agencies’ proposed rule that “all waters, including wetlands, adjacent to a 

water identified in paragraphs (a)(1) through (5) of this section are “waters of the United 

States” by rule, because adjacent waters are “integrally linked to the chemical, physical, 

or biological functions of the (a)(1) through (a)(5) waterbodies to which they are 

adjacent.” See 33 CFR 328.3(a)(6); 79 Fed. Reg. at 22206-7.

The proposed rule is strongly supported by the draft Connectivity Report, which 

thoroughly documents and supports its conclusion that: “[w]etlands and open-waters in 

landscape settings that have bidirectional hydrologic exchanges with streams or rivers 

(e.g., wetlands and open- waters in riparian areas and floodplains) are physically, 

chemically, and biologically connected with rivers” through multiple processes, and that 

they “serve an important role in the integrity of downstream waters because they also act 

as sinks by retaining floodwaters, sediment, nutrients, and contaminants that could 

otherwise negatively impact the condition or function of downstream waters.” 

Connectivity Report at 1-3. The SAB Connectivity Peer Review Report supports this 

conclusion at 5 concluding that there is strong scientific support for the overall 

conclusion that “bidirectional” wetlands and waters in floodplain settings are physically, 

 

698 Maryland v. Balt. Radio Show, Inc., 338 U.S. 912, 919 (1950). See also Missouri v. Jenkins, 515 U.S. 70, 85 

(1995) (“Of course, ‘[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case, 

as the bar has been told many times.’” (citing United States v. Carver, 260 U.S. 482, 490 (1923))).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

377

chemically, and biologically connected with rivers through multiple pathways. Additional 

literature could be included in the Report to bolster this conclusion and related findings.

The scientific evidence also demonstrates that shallow groundwater connections serve as 

hydrologic connections between surface waters and should be considered in assessing 

connectivity and effects on downstream waters. See, e.g., Connectivity Report at 1-7 to 1-

14. This principle is scientifically sound and widely accepted as legally sound as well.699

The agencies’ finding that all adjacent waters have a significant nexus to downstream 

waters and are jurisdictional by rule is fully consistent with and relevant to Justice 

Kennedy’s significant nexus test. Justice Kennedy sets forth a clear framework for 

establishing adjacent waters and other categories of waters as jurisdictional by rule. First, 

he defines “significant nexus” and establishes significant nexus as the “touchstone for 

CWA jurisdiction.” See Rapanos, supra, at 780 (defining significant nexus); 79 Fed. Reg. 

at 22209.

Justice Kennedy then provides that the agencies can, through regulation or adjudication 

identify categories of waters that “are likely, in the majority of cases, to perform 

important functions for an aquatic system incorporating navigable waters.” Rapanos at 

780-81. The agencies rightly conclude, based on the scientific evidence, that “all adjacent 

waters should be jurisdictional by rule because the discharge of many pollutants (such as 

nutrients, petroleum wastes, and other toxic pollutants) into adjacent waters often flow 

into and thereby pollute the traditional navigable waters, interstate waters, and the 

territorial seas.” Therefore, “adjacent waters, as defined in the proposed rule, “are likely, 

 

699 See, Healdsburg, 496 F.3d at 1000 (citing to underground hydrologic connections as a basis for establishing a 

significance nexus between two bodies under Justice Kennedy’s standard); United States v. Banks, 115 F.3d 916, 

921 (11th Cir. 1997) (finding that wetlands that were at least one half mile from navigable waters were jurisdictional 

due to a hydrologic connection that “was primarily through groundwater, but also occurred through surface water 

during storms”); United States v. Tilton, 705 F.2d 429 (11th Cir. 1983) (finding that wetlands with rare surface water 

connections, but demonstrated ecological and subsurface hydrological connections, were jurisdictional); see also, 

Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169, 1180 (D. Id. 2001) (“[T]he interpretive history of the CWA 

only supports the unremarkable proposition with which all courts agree – that the CWA does not regulate 

‘isolated/nontributary’ groundwater which has no affect on surface water. It does not suggest that Congress intended 

to exclude from regulation discharges into hydrologically connected groundwater which adversely affect surface 

water. For these reasons, the Court finds that the CWA extends federal jurisdiction over groundwater that is 

hydrologically connected to surface waters that are themselves waters of the United States.”) (citations omitted); 

Quivira v. EPA, 765 F.2d 126 (10th Cir. 1985) (arroyo with continuous groundwater connection and occasional 

surface water connection to downstream jurisdictional waters protected under the Act); Washington Wilderness 

Coalition v. Hecla, 870 F. Supp. 983, 990 (E.D. Wash. 1994) (“[S]ince the goal of the CWA is to protect the quality 

of surface waters, any pollutant which enters such waters, whether directly or through groundwater, is subject to 

regulation by NPDES permit.”); Sierra Club v. Colorado Refining Company, 838 F. Supp. 1428, 1434 (D. Colo. 

1993) (where the Judge stated that, “I conclude that the Clean Water Act’s preclusion of the discharge of any 

pollutant into ‘navigable waters’ includes such discharge which reaches ‘navigable waters’ through groundwater.”) 

(citations omitted); McClellan Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182, 1196 (E.D.Ca. 

1988), vacated and remanded on other grounds, M.E.S.S. v. Perry, 47 F.3d 325 (9th Cir. 1995), cert. denied, 516 

U.S. 807 (1995) (where the Court found that discharges to groundwater could be regulated under the Act if 

“discharges from the waste pits have an effect on surface waters of the United States” and it could be established 

that the groundwater was “naturally connected to surface waters that constitute ‘navigable waters’ under the Clean 

Water Act”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

378

in the majority of cases, to perform important functions for an aquatic system 

incorporating navigable waters.” Rapanos at 781-82. 79 Fed. Reg. at 22210. (p. 43-45)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is based on 

the agencies’ careful examination of the science and the law to make a 

determination of significant nexus for covered adjacent waters. Preamble, IV and 

Technical Support Document, I and VIII.

10.403 The 2003 [SWANNC] and 2008 [Rapanos] Guidances, and their application in the field, 

have put millions of adjacent wetlands at risk through a combination of flawed guidance 

and bad calls in the field. Here are just a few examples:

Forested wetlands, Coastal South Carolina – Corps determinations in 2002, 2003, and 

2005 each found this 32-acre wetland site “isolated,” with no surface water connection to 

nearby tributaries, and therefore not subject to Clean Water Act jurisdiction due to 

SWANCC and the SWANCC Guidance.700 It was not until a citizen suit challenged the 

Corps’ 2005 non-jurisdictional determination that the Corps and EPA conducted a series 

of field inspections that confirmed that the wetlands site was, in fact, adjacent to a 

tributary that ultimately flowed to a TNW, Collins Creek. In November 2010, the Corps 

ultimately found this adjacent wetland jurisdictional, documenting that this wetland, in 

combination with similarly situated adjacent wetlands identified along the tributary reach, 

had a significant nexus with a TNW-Collins Creek. This 2010 significant nexus analysis 

confirmed jurisdiction despite the fact that the aggregation of wetlands was artificially 

limited to the stream reach due to the constraints of the existing flawed guidance.701

Forested wetlands, Coastal Georgia – Following SWANCC, the Corps accepted a mining 

company assertion that it did not a permit to destroy over 300 wetland acres in the Satilla 

River basin near the Okefenokee Swamp because those wetlands were “isolated” from 

other wetlands by a dirt road. It was left to environmental groups to demonstrate that 

many of the wetlands drained into a working culvert that went under a dirt road and 

linked the 300 acres of wetlands to other waterways downstream. Only after months of 

communications and the threat of litigation did the Corps finally reverse its nonjurisdictional determination.702 Careful implementation of the Corps’ adjacency 

definition pursuant to this rule should prevent the wasted time and resources, as well as 

the potential wetland loss, associated with this flawed non-jurisdictional determination.

Sedge wetlands, Eastern Front Range, Colorado – In 2007, the Corps found “isolated” 

and non-jurisdictional a series of wetlands because they were geographically cut off from

 

700 Charleston District, Army Corps of Engineers, Memorandum to Assert Jurisdiction for SAC 2005-41222-3JI 

(f.k.a. 87-2005-0575-3 Spectre LLC) (November 1, 2010) (2010 Spectre LLC Jurisdiction Memorandum) at 1. See 

also, Earthjustice, et al. Courting Disaster: How the Supreme Court Has Broken the Clean Water Act and Why 

Congress Must Fix It. (April 2009), at 5-6; Connolly, Kim D., The Effects of the SWANCC and Rapanos Supreme

Court Rulings on South Carolina Waters, at 4-6 (2010) (prepared for National Wildlife Federation, Trout Unlimited, 

and Ducks Unlimited).

701 Id. at 2-8. 

702 Courting Disaster at 13. See also, Courting Disaster at 20 citing EPA and Corps Memorandum to Assert 

Jurisdiction for SAS-2007-670 (February 12, 2008) (Agencies ultimately reversed non-jurisdiction determination for 

barrier island interdunal freshwater wetlands later found to be part of a connected interdunal system and 

hydrologically connected to the tidal Julienton and Little Mud Rivers.)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

379

their historic Little Dry Creek drainage by a small low-level dam. This example is not an 

isolated one, but part of a pattern of similar non-jurisdictional determinations along the 

eastern front range.703 “[O]ften the difference between wetlands receiving CWA 

protection or not depends on whether they abut a RPW or a TNW. If they do not, under 

current Corps practices, they likely will be designated non-jurisdictional regardless of 

whether they may be in the same floodplain or drainage and providing many if not all of 

the same functions.”704 A functional approach to adjacency in the final rule should 

require a more careful consideration of these wetlands and their likely ground water 

recharge, flood flow retention, and wildlife connections within the floodplain and the 

watershed.

Adjacent wetland, West Tennessee – In 2007, the Corps found non-jurisdictional a 

wetland that existed “only feet” from the confluence of the Reelfoot, North Reelfoot, and 

Cane Creek streams that flow through the Reelfoot National Wildlife Refuge.705 “Given 

the proximity of the contested wetland to the stream, the destruction of the wetland site 

and loss of the wetland’s water quality functions could significantly impact the stream 

and the refuge by introducing pollutants into the waterways.”706 (p. 53-55)

Agency Response: The rule provides for increased clarity and certainty. 

Preamble, II and IV.

Natural Resources Defense Council (Doc. #15437)

10.404 EPA and the Corps further propose to define the term “waters of the United States” as 

including all waters, including wetlands, adjacent to traditionally navigable waters, 

interstate waters, the territorial seas, impoundments of those same waters, and 

tributaries.707 Wetlands, in turn, are defined (as they long have been) as “those areas that 

are inundated or saturated by surface or groundwater at a frequency and duration 

sufficient to support, and that under normal circumstances do support, a prevalence of 

vegetation typically adapted for life in saturated soil conditions.” And “adjacent” means 

“bordering, contiguous or neighboring,” including waters that are separated from other 

waters of the U.S. by man-made dikes or barriers, natural river berms, beach dunes, and 

the like.708 This proposal amply satisfies the criteria that Justice Kennedy laid out in his 

Rapanos opinion.

 

703 Buechler, Dennis, Five Case Studies on the Effects of the SWANCC and Rapanos Supreme Court Rulings on 

Colorado Wetlands and Streams, at 19-22 (prepared for National Wildlife Federation, Trout Unlimited, and Ducks 

Unlimited) (February 2010).

704 Id. at 22.

705 Siedschlag, Greg, et al, Five Case Studies on the Effects of the SWANCC and Rapanos Supreme Court Rulings 

on Tennessee Waterways, at 9 (prepared for National Wildlife Federation, Trout Unlimited, and Ducks Unlimited) 

(January 2010).

706 Id. at 10. 

707 See 79 Fed. Reg. at 22,269 (proposed 40 C.F.R. § 230.3(s)(6)). We strongly support the agencies’ inclusion of 

adjacent waters generally, as opposed to simply adjacent wetlands, in this provision. Both the Connectivity Report 

and the SAB find that adjacent waters have a variety of critical connections to downstream waters, without limiting 

that analysis to adjacent wetlands.

708 We support the agencies’ proposal to eliminate the confusing parenthetical expression “other than waters that are 

themselves wetlands” from the adjacent waters provision. As proposed, the rule would not provide jurisdiction over 

waters adjacent to so-called “isolated” waters based solely on their adjacency. As that was the purpose of the 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

380

First, Justice Kennedy stated that wetlands’ significant nexus can be analyzed “either 

alone or in combination with similarly situated lands in the region.”709 In other words, the 

significant nexus test can justify jurisdiction over either individual wetlands or categories 

of waters is “sustainable under the Act by showing adjacency alone,” as adjacency to 

such waters supports a “reasonable inference of ecologic interconnection.”710 According 

to Justice Kennedy, it may also be reasonable to infer a significant nexus, and therefore 

CWA jurisdiction, for waters adjacent to “certain major tributaries” if the agencies 

determine that such tributaries 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.”711 For wetlands adjacent to other, “minor” tributaries, 

however, the agencies cannot assume without evidence that adjacent wetlands play an 

important enough “role in the integrity of an aquatic system.”712 For this reason, Justice 

Kennedy required a case-by-case analysis for such waters “absent more specific 

regulations.”713 This limited requirement – designed “to avoid unreasonable applications 

of the statute”714– thus permits the agencies to reasonably assert jurisdiction over waters 

adjacent to non-navigable tributaries through regulations, based on scientific evidence.

EPA and the Corps have put forth those “more specific regulations,” supported by 

overwhelming scientific evidence, in this proposal.715 With regard to waters adjacent to 

tributaries, the agencies have now determined, using their expert judgment and the 

available science, that waters adjacent to all tributaries have a significant nexus to 

traditionally navigable waters. The proposed provision is consistent with Justice 

Kennedy’s interpretation of the Clean Water Act, as jurisdiction is not based on 

“assumptions” like the ones against which he warned, but rather on a detailed review of 

relevant science.

EPA’s Connectivity Report explains the reasons why adjacent waters – which it refers to 

as waters located in floodplains and riparian areas with “bidirectional hydrologic 

exchanges with streams or rivers” – have important effects on downstream waters as 

follows:

“Wetlands and open-waters in landscape settings that have bidirectional 

hydrologic exchanges with streams or rivers (e.g., wetlands and open-waters in 

riparian areas and floodplains) are physically, chemically, and biologically 

connected with rivers via the export of channel-forming sediment and woody 

 

provision initially, see 79 Fed. Reg. at 22,209, the provision is unneeded. Moreover, because the proposal recognizes 

that wetlands can serve as tributaries, wetlands and other waters adjacent to those tributary wetlands should be 

jurisdictional by rule, something that this outdated provision would have prevented.

709 Rapanos, 547 U.S. at 780.

710 Id.

711 Id. at 780-81. 

712 Id. at 781. 

713 Id. at 782.

714 Id. 

715 We do not discuss here the assertion of jurisdiction over waters adjacent to the first four types of waters listed in 

the proposed definition: navigable-in-fact waters, interstate waters, the territorial seas, and impoundments of those 

waters. Those provisions were not at issue in Rapanos and we submit that Riverside Bayview provides the applicable 

precedent for jurisdiction over those kinds of features.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

381

debris, temporary storage of local groundwater that supports baseflow in rivers, 

and transport of stored organic matter. They remove and transform excess 

nutrients such as nitrogen and phosphorus (P). They provide nursery habitat for 

breeding fish, colonization opportunities for stream invertebrates, and maturation 

habitat for stream insects. Moreover, wetlands in this landscape setting serve an 

important role in the integrity of downstream waters because they also act as sinks 

by retaining floodwaters, sediment, nutrients, and contaminants that could 

otherwise negatively impact the condition or function of downstream waters.”

716

These conclusions are irrefutable based on the literature summarized in Chapter 5 of the 

report. The material presented in the report is more than sufficient to conclude that 

adjacent waters, including wetlands, are highly connected to downstream waters. For 

example, “Riparian areas act as buffers that are among the most effective tools for 

mitigating nonpoint source pollution.”717 These adjacent waters “connect upland and 

aquatic environments through both surface and subsurface hydrologic flow paths,” and 

they “can reduce flood peaks by storing and desynchronizing floodwaters.”718

These findings have been confirmed by the Science Advisory Board in its peer review of 

the Connectivity Report. The SAB found “that the literature review substantiates the 

Report’s conclusion that floodplains and waters and wetlands in floodplain settings 

support the physical, chemical and biological integrity of downstream waters.”719 In its 

review of the proposed rule, the SAB reaffirmed this conclusion: “adjacent waters and 

wetlands have a strong influence on the physical, chemical, and biological integrity of 

navigable waters.”720

Critically, the definition of “adjacent” that the agencies have proposed is consistent with 

the Connectivity Report’s scientific criteria for “bidirectional” waters in riparian areas 

and floodplains, the criteria that circumscribe the waters to which the above conclusions 

apply.721 The regulatory proposal defines “adjacent” to mean “bordering, contiguous or 

neighboring.” “Neighboring” is the most inclusive of these terms and is defined as 

“waters located within the riparian area or floodplain of a water identified in paragraphs 

(1) through (5) of this section [traditionally navigable waters, interstate waters, the 

territorial seas, impoundments of those same waters, and tributaries], or waters with a 

shallow subsurface hydrologic connection or confined surface hydrologic connection to 

such a jurisdictional water.” The Connectivity Report, in turn, draws the above-stated 

conclusions about waters “in landscape settings that have bidirectional hydrologic 

 

716 Connectivity Report at 1-3.

717 Id. at 1-9.

718 Id.

719 SAB Connectivity Review at 4.

720 SAB Rule Review at 2.

721 Although the SAB recommends that the final Connectivity Report move away from using the term 

“bidirectional” and instead refer to “waters and wetlands in floodplain settings” to better reflect the geographic 

position of the waters in question, and although it also suggests discussing riparian areas largely in the Report’s 

section on streams, SAB Connectivity Review at 4, it is noteworthy that the SAB did not question the inclusion of 

riparian waters in the definition of “adjacent” waters. See SAB Rule Review at 2-3.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

382

exchanges with streams or rivers (e.g., wetlands and open-waters in riparian areas and 

floodplains).”722

Finally, the proposal’s definitions for riparian areas and floodplains also closely align 

with those used in the Connectivity Report.723 The upshot is that there is enormous 

overlap between the proposal’s “adjacent waters” and those waters that the Connectivity 

Report states “are physically, chemically, and biologically connected” with navigable 

waters.724 The Connectivity Report therefore amply supports, as it does with regard to 

tributaries, the conclusion that adjacent waters have scientifically proven effects, which 

are beyond significant, on other covered waters. These findings justify and in fact require 

that the proposal’s categorical protections for adjacent waters be included in the final 

rule. (p. 34-37)

Agency Response: The rule no longer provides that all waters within 

“floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now provides 

specific distance limits for “neighboring” waters. Preamble, IV. Consistent with 

Justice Kennedy’s opinion, the rule is based on the agencies’ careful examination of 

the science and the law to make a determination of significant nexus for covered 

adjacent waters. Preamble, IV and Technical Support Document, I and VIII. 

Waterkeeper Alliance et al. (Doc. # 16413)

10.405 EPA has a longstanding and consistent interpretation that the CWA may cover discharges 

of pollutants from a point source to surface water that occur via groundwater that has a 

direct hydrologic connection to the surface water. To be sure, in EPA’s repeated 

expressions of that interpretation over the past 24 years, the Agency has not said that 

groundwater is a water of the United States, but rather that discharges to waters of the 

United States through groundwater may be covered by the CWA if the hydrologic 

connection is direct. That interpretation was not at issue in any of the Supreme Court 

decisions or called into question by those decisions, and EPA is, wisely, not undertaking 

to revisit that interpretation in the current rulemaking.

Indeed, EPA could not revisit that issue in the final rule because it did not propose to do 

so in the April 21, 2014 Notice of Proposed Rulemaking, and such a change would not be 

 

722 Connectivity Report at 1-9.

723 Compare the proposal’s definition of “riparian area” (“transitional areas between aquatic and terrestrial 

ecosystems that influence the exchange of energy and materials between those ecosystems”) with Connectivity 

Report at 3-4 (“Riparian areas are transition zones between terrestrial and aquatic ecosystems ... [and] include those 

portions of terrestrial ecosystems that that significantly influence exchanges of energy and matter with aquatic 

ecosystems.”) (internal citations omitted); compare the proposal’s definition of “floodplain” (“an area bordering 

inland or coastal waters that was formed by sediment deposition from such water under present climatic conditions 

and is inundated during periods of moderate to high water flows”) with Connectivity Report at 3-4 (“Floodplains are 

level areas bordering stream or river channels that are formed by sediment deposition from those channels under 

present climatic conditions. These natural geomorphic features are inundated during moderate to high water 

events.”).

724 Connectivity Report at 1-9.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

383

a logical outgrowth of that notice.725 Moreover, the proposed rule provides further 

scientific support for EPA’s longstanding and consistent interpretation concerning 

discharges via groundwater in that it extensively discusses the critical role that 

groundwater plays in establishing hydrological, chemical, and biological connections 

between surface waterbodies.726

To aid in clarity, the agencies should confirm in their response to comments that nothing 

in this rule alters EPA’s longstanding and consistent interpretation that the CWA may 

cover discharges of pollutants from a point source to surface water that occur via 

groundwater that has a direct hydrologic connection to the surface water. Such 

confirmation may be useful, for example, to those who might otherwise confuse the issue 

of discharges to surface waters “via groundwater” with the separate issues of: (1) whether 

certain surface waters, including wetlands, are waters of the United States due to their 

subsurface connection to a jurisdictional water; or (2) whether certain groundwaters 

might themselves be considered waters of the United States under the significant nexus 

test. 

While the EPA is well aware of its own pronouncements in the Federal Register and 

elsewhere, we review them here for the record, along with federal court decisions on this 

issue. As EPA explained to Congress in 2012: 

“The EPA has a longstanding and consistent interpretation that the Clean Water 

Act may cover discharges of pollutants from point sources to surface water that 

occur via ground water that has a direct hydrologic connection to the surface 

water.”

727

EPA has expressed that longstanding and consistent interpretation in final regulations 

published in the Federal Register following notice–and–comment rulemaking, in 

individual and general National Pollution Discharge Elimination System (“NPDES”) 

permits issued by EPA, in a brief filed by the Department of Justice on behalf of EPA in 

federal district court, and in the memorandum to Congress quoted above. In addition, the 

vast majority of federal courts that have considered the issue have likewise found that the 

CWA may cover discharges into directly hydrologically connected groundwater, if such 

connection can be demonstrated. (p. 43-45)

Agency Response: EPA agrees that the agency has a longstanding and consistent 

interpretation that the Clean Water Act may cover discharges of pollutants from 

point sources to surface water that occur via ground water that has a direct 

hydrologic connection to the surface water. Nothing in this rule changes or affects 

that longstanding interpretation, including the exclusion of groundwater from the 

definition of "waters of the United States."

 

725 Furthermore, Any attempt to revisit that interpretation in the future would face a heavy burden given that “[a]n 

agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to 

considerably less deference’ than a consistently held agency view.” INS v. Cardoza--‐ Fonseca, 480 U.S. 421, 446 

n.30 (1987).

726 See, e.g., 79 Fed. Reg. at 22196, 22207--‐ 08, 22222, 22242, and 22248.

727 Letter from Arvin Ganesan to Hon. John L. Mica, Enclosure at 1, dated Feb. 13, 2012 (internal footnotes 

omitted).
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384

10.406 The earliest rulemaking decision of which we are aware came in 1990, in a final 

stormwater rule, in which EPA responded to a public comment concerning CWA 

jurisdiction by stating: “...discharges to ground waters are not covered by this 

rulemaking (unless there is a hydrological connection between the ground water and a 

nearby surface water body...).”728

The following year, in a final water quality standards regulation for Indian reservations, 

EPA explained the issue in slightly more detail: 

“EPA and most courts addressing the issues have recognized two limited 

instances where, for the purpose of protecting surface waters and their uses, EPA 

may exercise authorities that may affect underground waters. First, the Act 

requires NPDES permits for discharges to groundwater where there is a direct 

hydrological connection between groundwaters and surface waters ... because 

such discharges are effectively discharges to the directly connected surface 

waters. Second, it is EPA’s long--‐established position that water quality 

standards are required for certain underground segments of surface waters. See 

Kentucky v. Train, 9 ERC 1280 (E.D. Kentucky 1972). In such streams, the 

subterranean component must be sufficiently stream--‐like so as to possibly allow 

the passage of fish and other aquatic organisms from a surface segment of the 

stream into the underground segment.”

729

In 1998, again in a final stormwater rule, EPA reiterated: 

“EPA interprets the CWA’s NPDES permitting program to regulate discharges to 

surface water via groundwater where there is a direct and immediate hydrologic 

connection (“hydrologically connected”) between the groundwater and the surface 

water.”

730

Following those three 1990s rulemakings, EPA articulated its interpretation and legal 

analysis at considerable length in a 2001 proposed rule for CAFOs. Under the heading 

“Applicability of the Regulations to Operations That Have a Direct Hydrologic 

Connection to Ground Water,” EPA stated: 

“Because of its relevance to today’s proposal, EPA is restating that the Agency 

interprets the Clean Water Act to apply to discharges of pollutants from a point 

source via ground water that has a direct hydrologic connection to surface 

water.”

731

Under the heading “Legal Basis,” in a detailed and extensive analysis, EPA explained its 

statutory authority to “determin[e] that a discharge to surface waters via hydrologicallyconnected ground waters can be governed by the Act,” and why “the Act is best 

interpreted to cover such discharges.” 

EPA’s extensive legal analysis was comprehensive. First, EPA framed the legal issue. 

Rather than asking whether groundwater is regulated under the Clean Water Act (as a 

 

728 55 Fed. Reg. 47990, 47997 (col. 3) (Nov. 16, 1990) (citations omitted). 

729 56 Fed. Reg. 64876, 64892 (col. 3) (Dec. 12, 1991). 

730 63 Fed. Reg. 7858, 7881 (col. 2) (Feb. 17, 1998).

731 66 Fed. Reg. 2960, 3015 (col. 1) (Jan. 12, 2001).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

385

point source or as a water of the United States), EPA asked “whether a discharge to 

surface waters via hydrologically connected ground water is unlawful.” EPA stated that 

it: 

“...does not argue that the CWA directly regulates ground water quality. . . the 

question of whether Congress intended the NPDES program to regulate ground 

water quality . . . is not the same question as whether Congress intended to protect 

surface water from discharges which occur via ground water.”

732

Exercising its authority to “fill gaps in the statutory framework.” EPA reasoned that 

excluding discharges that occur via groundwater would create a loophole inconsistent 

with the CWA’s statutory purposes: 

“[T]he Act is best interpreted to covers such discharges...An interpretation of the 

CWA which excludes regulation of point source discharges to the waters of the 

U.S. which occur via groundwater would...be inconsistent with the overall 

Congressional goals expressed in the statute...[T]here is no evidence that 

Congress intended to create a ground water loophole through which the 

discharges of pollutants could flow, unregulated, to surface water.”

733

To reach this conclusion, EPA “utilized its expertise in environmental science and policy 

to determine the proper scope of the CWA,” as well as the policymaking authority 

delegated by Congress.734 “Given the Agency’s knowledge of the hydrologic cycle and 

aquatic ecosystems, the Agency has determined that when it is reasonably likely that such 

discharges will reach surface waters, the goals of the CWA can only be fulfilled if those 

discharges are regulated.”735 Applying that knowledge of hydrology and aquatic 

ecosystems, EPA further explained that the existence of a hydrologic connection is a 

question of fact: “The determination of whether a particular discharge to surface waters 

via ground water which has a direct hydrological connection which is prohibited without 

an NPDES permit is a factual inquiry, like all point source determinations.”736 To assure 

itself that its reasoning was sound and well-grounded, EPA examined the legislative 

history and found it consistent with EPA’s interpretation: “Congress expressed an 

understanding of the hydrologic cycle and an intent to place liability on those responsible 

discharges which entered the ‘navigable waters.’”737 EPA also found that the courts 

agree: “[T]he majority of courts have determined that CWA jurisdiction may extend to 

surface water discharges via hydrologic connections...The decisions which did not find 

authority to regulate such discharges under the CWA may, for the most part, be 

distinguished.”738

In 2003, EPA finalized that CAFO rule, which the U.S. Court of Appeals reviewed in 

Waterkeeper Alliance, Inc. v. U.S. E.P.A.

739

 In that case, the Second Circuit explained 

 

732 Id. at 3015--‐ 3016.

733 Id.

734 Id. at 3018 (col. 1).

735 Id. at 3018 (col. 1‐ 2).

736 Id. at 3017 (col. 1).

737 Id. at 3016 (col. 2).

738 Id. at 3017 (col. 2‐ 3).

739 399 F.3d 486 (2d Cir. 2005).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

386

that the shift from certain uniform national requirements governing discharges to surface 

waters via groundwater (in the proposed rule) to fully case-by-case determinations of 

hydrologic connection (in the final rule) did not alter EPA’s position on the scope of the 

CWA: 

“It is thus clear that when the EPA stated, in the Preamble to the Final Rule, that 

‘requirements limiting the discharge of pollutants to surface water via 

groundwater...are beyond the scope of today’s ELGs,’ Preamble to the Final Rule 

at 7216, the EPA meant only that uniform national requirements are beyond the 

scope of today’s ELGs. The EPA did not, in other words, mean to suggest that 

NPDES authorities lacked the power to impose groundwater-related requirements 

on a case‐by‐case basis, where necessary.” (p. 45-49)

Agency Response: EPA agrees that the agency has a longstanding and consistent 

interpretation that the Clean Water Act may cover discharges of pollutants from 

point sources to surface water that occur via ground water that has a direct 

hydrologic connection to the surface water. Nothing in this rule changes or affects 

that longstanding interpretation, including the exclusion of groundwater from the 

definition of "waters of the United States."

10.407 In 2011, EPA issued a NPDES permit to the Menominee Neopit Wastewater Treatment 

Facility in Wisconsin, based on data showing that the groundwater beneath the site “has a 

direct hydrologic connection to the adjacent surface water, the navigable waters of 

Tourtillotte Creek.”740

EPA explained: 

“Based on the modeling and the porosity of the soil, the first of the new 

discharge plume would take 3 to 5 years to reach the creek and l3 to 21 years 

before the entire breadth of the plume reaches the creek. However, since the 

existing facility had been discharging to the groundwater since the facility began 

operations in the 1970’s, the existing discharge plume is already reaching 

Tourtillotte Creek.”

741

EPA has permitted other facilities on a similar basis.742

As noted above, EPA expressed its position on this issue directly to Congress. In 2012, an 

EPA Associate Administrator responded to questions posed by U.S. Representative John 

L. Mica, in a memorandum, which EPA stated: 

“The EPA has a longstanding and consistent interpretation that the Clean Water 

Act may cover discharges of pollutants from point sources to surface water that 

occur via ground water that has a direct hydrologic connection to the surface 

water...Whether or not such a hydrological connection exists, and the need for a 

 

740 EPA Region 5, NPDES Permit No. WI0073059 Fact Sheet (April 2011) at 2.

741 Id.

742 See, e.g., EPA Region 6, NPDES Permit No. NM0022306 Fact Sheet for Molycorp Mine (May 2006) at 4‐ 6; see 

also id. at 7 describing NPDES permits issued to U.S. Liquids of Louisiana, Ltd. in 1999, Texas Eastman in 1976, 

and a CAFO general permit in 1993.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

387

National Pollutant Discharge Elimination System (NPDES) permit for any given 

source, is highly dependent on the facts and circumstances surrounding each 

permitting situation...A number of factors are relevant in evaluating the 

connection between ground water and surface water, such as geology, flow and 

slope. A fact-specific evaluation could support a determination that an NPDES 

permit is required....”

743

In 2012, the U.S. Department of Justice, on behalf of EPA, confirmed to a federal district 

court that: 

“There can be circumstances where a discharge to groundwater, or even a 

discharge to soil which eventually leads to groundwater, is so directly and 

immediately connected hydrologically to surface water that a NPDES permit is 

required...Accordingly, specific [discharges] can, under given circumstances, be 

found to be subject to NPDES permitting requirements.”

744 (p. 49-51)

Agency Response: EPA agrees that the agency has a longstanding and consistent 

interpretation that the Clean Water Act may cover discharges of pollutants from 

point sources to surface water that occur via ground water that has a direct 

hydrologic connection to the surface water. Nothing in this rule changes or affects 

that longstanding interpretation, including the exclusion of groundwater from the 

definition of "waters of the United States."

10.408 In numerous cases, federal courts around the country have reached similar conclusion as 

EPA and DOJ, upholding CWA jurisdiction over discharges of pollutants to surface 

waters that occur via groundwater. 

As noted above, in Waterkeeper Alliance, Inc. v. U.S. EPA, the Second Circuit upheld 

EPA’s requirements for the discharge of pollutants from CAFOs to surface water via 

groundwater to be regulated, “as necessary, on a case‐by‐case basis.”745 The court found 

“sufficient record support for EPA’s determination that groundwater--‐related 

requirements are better imposed on a case‐by‐case basis,” given “that variability in 

topography, climate, distance to surface water, and geologic factors influence whether 

and how pollutant discharges at a particular site enter surface water via groundwater.”746

An overwhelming majority of other courts are in accord. At least 18 federal decisions 

have held that the CWA covers discharges to surface waters via hydrologically connected 

groundwater. The reasoning behind these decisions is clear: Congress did not intend to 

exempt from the CWA “the introduction of pollutants into the groundwater [that] 

adversely affects the adjoining surface waters.”747 As one court explained: 

“It would hardly make sense for the CWA to encompass a polluter who 

discharges pollutants via a pipe running from the factory directly to the riverbank, 

 

743 Letter from Arvin Ganesan to Hon. John L. Mica, Enclosure at 1, dated Feb. 13, 2012 (internal footnotes 

omitted).

744 EPA Mem. in Support of Def.’s Mtn. for Summ. Judgment at 18--‐ 19, filed in Conservation Law Found. v. 

EPA, No. 10--‐ cv--‐ 11455 (D. Mass., Sept. 21, 2012). 

745 Waterkeeper Alliance, 399 F.3d at 514--‐ 15 n.26.

746 Id. at 515.

747 Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169, 1180 (D. Idaho 2001).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

388

but not a polluter who dumps the same pollutants into a man--‐made settling basin 

some distance short of the river and then allows the pollutants to seep into the 

river via the groundwater.”

748

Notably after EPA’s comprehensive discussion of the issue in its 2001 rulemaking, courts 

typically have deferred to that interpretation.749

The 18 federal court decisions of which we are aware, in addition to Waterkeeper 

Alliance v. U.S. EPA, finding that the CWA may cover discharges of pollutants to surface 

waters that occur via groundwater having a direct hydrologic connection are: 

 Dague v. City of Burlington, 935 F.2d 1343, 1347, 1355 (2d Cir. 1991), rev’d in 

part on other grounds, 505 U.S. 557 (1992) (where a city allowed groundwater to 

flow through contaminants in its landfill and then to migrate beyond the landfill 

boundaries into a pond and wetlands that were waters of the United States, court 

of appeals held that “district court’s conclusion that the city discharged pollutants 

into navigable waters from a point source properly applied the statute”); 

 U.S. Steel Corp. v. Train, 556 F.2d 822, 852 (7th Cir. 1977) (CWA “authorizes 

EPA to regulate the disposal of pollutants into deep wells, at least when the 

regulation is undertaken in conjunction with limitations on the permittee’s 

discharges into surface waters”), overruled on other grounds by City of West 

Chicago v. U.S. Nuclear Regulatory Comm’n, 701 F.2d 632, 644 (7th Cir. 1983); 

 Hawai’i Wildlife Fund v. County of Maui, No. 12--‐00198 SOM/BMK, 2014 U.S. 

Dist. LEXIS 74256, *35 (D. Hawaii May 30, 2014) (“liability arises even if the 

groundwater under the [sewage treatment facility] is not itself protected by the 

Clean Water Act, as long as the groundwater is a conduit through which 

pollutants are reaching navigable-in-fact water”); 

 Ass’n Concerned Over Res. & Nature, Inc. v. Tenn. Aluminum Processors, Inc., 

No. 1:10-00084, 2011 U.S. Dist. LEXIS 39280, *49 (M.D. Tenn. Apr. 8, 2011) 

(“groundwater is subject to the CWA provided an impact [sic] on federal 

waters”); 

 Greater Yellowstone Coal. v. Larson, 641 F. Supp. 2d 1120, 1138 (D. Idaho 2009) 

(referring to EPA’s interpretation and stating “there is little dispute that if the 

ground water is hydrologically connected to surface water, it can be subject to” 

the CWA); 

 Northwest Envtl. Def. Ctr. v. Grabhorn, Inc., No. CV--‐08--‐548--‐ST, 2009 U.S. 

Dist. LEXIS 101359, *34 (D. Or. Oct. 30, 2009) (“In light of the EPA’s 

regulatory pronouncements,...CWA covers discharges to navigable surface 

waters via hydrologically connected groundwater”); 

 

748 N. Cal. Riverwatch v. Mercer Fraser Co., No. C--‐ 04--‐ 4620 SC, 2005 U.S. Dist. LEXIS 42997, *7 (N.D. Cal. 

Sept. 1, 2005).

749 Greater Yellowstone Coal. v. Larson, 641 F. Supp. 2d 1120, 1138 (D. Idaho 2009).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

389

 Hernandez v. Esso Std. Oil Co. (P.R.), 599 F. Supp. 2d 175, 181 (D.P.R. 2009) 

(“CWA extends federal jurisdiction over groundwater that is hydrologically 

connected to surface waters that are themselves waters of the United States”); 

 Coldani v. Hamm, 2007 U.S. Dist. LEXIS 62644, *25 (E.D. Cal. Aug. 14, 2007) 

(“because Coldani has alleged that Lima Ranch polluted groundwater that is 

hydrologically connected to surface waters that constitute navigable waters, he 

has sufficiently alleged a claim within the purview of the CWA”); 

 N. Cal. Riverwatch v. Mercer Fraser Co., No. C-04-4620 SC, 2005 U.S. Dist. 

LEXIS 42997, *7 (N.D. Cal. Sept. 1, 2005) (“the regulations of the CWA do 

encompass the discharge of pollutants from wastewater basins to navigable waters 

via connecting groundwaters”); 

 Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169, 1180 (D. Idaho 2001) 

(“CWA extends federal jurisdiction over groundwater that is hydrologically 

connected to surface waters that are themselves waters of the United States”); 

 Mutual Life Ins. Co. of New York v. Mobil Corp., No. 96-CV-1781, 1998 U.S. 

Dist. LEXIS 4513, at *6-*8 (N.D.N.Y. Mar. 31, 1998) (court denied motion to 

dismiss complaint alleging a hydrological connection, explaining that “plaintiff 

ultimately will have to prove a link between contaminated ground waters and 

navigable waters...”); 

 Friends of the Coast Fork v. County of Lane, No. 95-6105-TC, 1997 U.S. Dist. 

LEXIS 22705, *8 (D. Or. Jan. 31, 1997) (“Defendant violated the CWA by 

discharging pollutants...into the groundwater which is hydrologically connected 

to the surface water”); 

 Williams Pipe Line Co. v. Bayer Corp., 964 F. Supp. 1300, 1319-20 (S.D. Iowa 

1997) (“Because the CWA’s goal is to protect the quality of surface waters, the 

NPDES permit system regulates any pollutants that enter such waters either 

directly or through groundwater”); 

 Friends of Santa Fe Cnty. v. LAC Minerals, Inc., 892 F. Supp. 1333, 1358 

(D.N.M. 1995) (“[T]he Tenth Circuit’s expansive construction of the Clean Water 

Act’s jurisdictional reach...foreclose[s] any argument that the CWA does not 

protect groundwater with some connection to surface waters”); 

 Wash. Wilderness Coal. v. Hecla Mining Co., 870 F. Supp. 983, 990 (E.D. Wash. 

1994) (“since the goal of the CWA is to protect the quality of surface waters, any 

pollutant which enters such waters, whether directly or through groundwater, is 

subject to regulation”); 

 Sierra Club v. Colo. Ref. Co., 838 F. Supp. 1428, 1434 (D. Colo. 1993) 

(“allegations that [defendant] has and continues to discharge pollutants into the 

soils and groundwater.which then make their way to [a surface water] through the 

groundwater state a cause of action under the Clean Water Act”); 

 McClellan Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182, 1196 

(E.D. Cal. 1988) (plaintiff can prevail by showing discharges into “groundwater 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

390

[that] is naturally connected to surface waters that constitute ‘navigable waters’ 

under the Clean Water Act”), vacated on other grounds, 47 F.3d 325 (9th Cir. 

1995); and 

 New York v. United States, 620 F. Supp. 374, 380--‐81 (E.D.N.Y. 1985) (where 

State of New York asserted a claim under the CWA for an unpermitted discharge 

to surface water occurring via groundwater, declined to reach defendant’s 

argument that the CWA does not apply to groundwater, “since it is clear that 

plaintiff has alleged that the [subsurface discharges] threaten to contaminate...

navigable waters”). 

While a few decisions have found groundwater‐related claims to be beyond the reach of 

the CWA, most of those cases pre‐date EPA’s 2001 explanation of the CWA’s authority 

over hydrologically connected groundwater. Furthermore, the few contrary cases 

typically arose in situations where a hydrological connection to surface water had not 

been pled, was remote or entirely unproven, the plaintiff claimed that the CWA applies to 

all discharges to groundwater, or the court construed the issue as such. The most notable 

pre‐2001 case is Umatilla Waterquality Protective Ass’n, Inc. v. Smith Frozen Foods, 

Inc.

750 But the holding in Umatilla depended heavily on the absence – at that time – of an 

authoritative statement from EPA.751 Indeed, in the wake of EPA’s 2001 determination, 

the same court (the District of Oregon) disavowed Umatilla: “contrary to Umatilla, the 

CWA covers discharges to navigable surface waters via hydrologically connected 

groundwater.”752

The current rulemaking does not alter EPA’s longstanding and consistent interpretation. 

The agencies should acknowledge that fact in their response to comments on the 

Proposed Definition. (p. 50-56) 

Agency Response: EPA agrees that the agency has a longstanding and consistent 

interpretation that the Clean Water Act may cover discharges of pollutants from

point sources to surface water that occur via ground water that has a direct 

hydrologic connection to the surface water. Nothing in this rule changes or affects 

that longstanding interpretation, including the exclusion of groundwater from the 

definition of "waters of the United States."

Southeastern Legal Foundation, Inc. (Doc. #16592)

10.409 The question of how far a wetland can be from Traditional Waters and still be 

jurisdictional was addressed in Riverside (wetlands abutting Traditional Waters are 

jurisdictional), SWANCC (isolated, non-navigable waters are not jurisdictional), and 

Rapanos. In Rapanos, Justice Kennedy's concurrence was instructive on the question: 

"the dissent would permit federal regulation whenever wetlands lie alongside a ditch or a 

drain, however remote or insubstantial, that may eventually flow into traditionally 

navigable waters. The deference owed to the Corps' interpretation of the statute does not 

 

750 Umatilla Waterquality Protective Ass’n. Inc. v. Smith Frozen Foods, Inc., 962 F. Supp. 1312, 1316--‐ 20 (D. Or. 

1997). 

751 See id. at 1317, 1319, 1320 (“these considerations ... would not signify if Congress or EPA had clearly spoken to 

the issue of groundwater coverage.”).

752 Northwest Envtl. Def. Ctr.v. Grabhorn, Inc., 2009 U.S. Dist. LEXIS 101359, *34 (D. Or. Oct. 30, 2009).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

391

extend so far."753 Then, as if looking into a crystal ball, Justice Kennedy admonished the 

Corps for claiming what it now includes in the Proposed Rule. 'The Corps' theory of 

jurisdiction ...-adjacency to tributaries, however remote and insubstantial - raises 

concerns that go beyond the holding of Riverside Bayview...”754

The Proposed Rule defines adjacent as "bordering, contiguous, or neighboring. Waters, 

including wetlands, separated from other waters of the United States by man-made dikes 

or barriers, natural river berms, beach dunes and the like are 'adjacent waters."' Nested 

within that definition is the concept of "neighboring" - a location distinct from both 

"bordering" and "contiguous." Neighboring is also a newly defined term. "The term 

neighboring, for purposes of the term 'adjacent' in this section, includes waters located 

within the riparian area or floodplain of [Traditional Waters or tributaries, as defined in 

the Proposed Rule], or waters with a shallow subsurface hydrologic connection or 

confined surface hydrologic connection to such jurisdictional water." 

As an initial matter, we know from Rapanos that wetlands adjacent to non-navigable 

tributaries are not necessarily jurisdictional. We also know that deference was not due to 

"the Corps' definition of 'adjacent,' which ... ha[d] been extended beyond reason.... "755 

Yet, that is exactly what the Proposed Rule intends: all waters adjacent to tributaries are 

per se jurisdictional with no further inquiry. For this reason alone, SLF submits that the 

Proposed Rule must be withdrawn. 

In addition, a recent Sixth Circuit case struck down EPA's over-broad interpretation of 

the te1m "adjacent" in the Clean Air Act context.756 EPA had been interpreting the term 

"adjacent" to include the notion of "functionally interrelated." Relying on Rapanos, the 

court held that "EPA's determination that the physical requirement of adjacency can be 

established through mere functional relatedness is unreasonable and contrary to the plain 

meaning of the term 'adjacent."'757 More to the point, "however ambiguous the term may 

be in the abstract, 'adjacent' ... is not ambiguous between physically proximate and 

merely functionally related. "'758 The court noted that despite interpreting the term more 

broadly, EPA understood that it should view "adjacency in geographical, rather than 

operational, terms."759 Applying the Summit court's logic to the definition of adjacent in 

the Proposed Rule, only one result could follow: the Agencies' definition of "adjacent" 

encompasses much more than its plain geographic meaning, therefore it cannot stand. 

An additional problem with the definition of "adjacent" is the definition of "neighboring." 

While sometimes, adjacent- meaning abutting- waters can be jurisdictional,760 

neighboring waters (as defined in the Proposed Rule) fall beyond the Corps' authority and 

jurisdiction. Again, in what appears to be clairvoyance, the Rapanos plurality, when 

discussing Riverside, said "the case could not possibly have held that merely 

 

753 Rapanos, 547 U.S. at 778- 79.

754 Id. at 780.

755 Id. at 746.

756 See Summit Petroleum Corp. v. EPA, 690 F.3d 733 (6th Cir. 2012).

757 Id at 735.

758 Id. at 743 (internal quotations omitted).

759 Id at 748.

760 See Riverside, 474 U.S.121.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

392

'neighboring' wetlands come within the Corps' jurisdiction...the most natural reading of 

the opinion is that a wetlands' mere 'reasonable proximity' to [WOTUSJ is not enough to 

confer Corps jurisdiction."761 "Neighboring" is not enough to turn an otherwise isolated 

water into a WOTUS. 

The definition of "neighboring" itself contains several problems. First, the definition 

allows for jurisdiction established by "subsurface hydrologic connections." The Agencies 

cannot use groundwater, a water that falls outside of the purview of the CWA, as a link in 

the chain of establishing jurisdiction under the CW A. Second, further nesting of 

definitions, the definition of neighboring contains two newly defined terms: "riparian 

area" and "floodplain." As defined, neither riparian areas nor floodplains are themselves 

WOTUS or even water. Despite this, the Proposed Rule establishes jurisdiction over even 

the most isolated waters in both areas based solely on their "reasonable proximity" with 

no requirement for a "significant nexus" to be established. This vastly expands on the 

Agencies' current jurisdiction under the CWA. (p. 17-20)

Agency Response: The Supreme Court has stated that the term “waters of the 

United States” is ambiguous in some respects. With this rule, the agencies interpret 

the scope of the “waters of the United States” for the CWA in light of the goals, 

objectives, and policies of the statute, the Supreme Court caselaw, the relevant and 

available science, and the agencies’ technical expertise and experience. Technical

Support Document, I. A and C and Preamble, III and IV. The rule no longer 

includes a provision defining “neighboring” based on a surface or subsurface 

hydrologic connection or provides that all waters within “floodplains,” and 

“riparian areas” are “adjacent.” Instead, the rule now provides specific distance 

limits for “neighboring” waters. In addition, where the definition continues to use 

the term “floodplain,” it specifies the “100-year” floodplain and establishes a 1,500-

foot maximum distance for neighboring waters in the rule. Preamble, IV. Consistent 

with Justice Kennedy’s opinion, the rule is based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for covered adjacent waters. Preamble, IV and Technical Support Document, I and 

VIII. The rule is consistent with caselaw. Techncial Support Document, I.C. 

Community Watersheds Clean Water Coalition, Inc. (Doc. #16935)

10.410 Prior to submitting new regulations based on SWANCC/Rapanos, the EPA and the ACOE 

should first consult with Congress regarding both their original and present 

interpretations of the 1972 Clean Water Act and its subsequent amendments. In addition, 

does Congress agree with the 1985 Riverside/Bayview unanimous Supreme Court 

interpretation that established federal jurisdiction over “adjacent wetlands”, and made 

clear that “navigable waters” mean “waters of the U.S.”, i.e., such waters are 

jurisdictional under the CWA? By 1987, the Court recognized that the CWA applied to a 

much more extensive collection of water-bodies. As a result, the EPA and the ACOE 

have, in the past, conformed their regulations to the 1972 Act with its 1977, 1981, and 

1987 amendments. 

 

761 Rapanos, 547 U.S. at 741, n.10. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

393

The regulation of activities that cause water pollution cannot rely on...artificial 

lines...but must focus on all waters that together form the entire aquatic system. 

Water moves in hydrologic cycles, and the pollution of this part of the aquatic system, 

regardless of whether it is above or below an ordinary high water mark, or mean high tide 

line, will affect the water quality of the other waters within that aquatic system. 

We cannot say that the Corps' conclusion that adjacent wetlands are inseparably bound up 

with the “waters” of the United States-based as it is on the Corps' and EPA's technical 

expertise-is unreasonable. In view of the breadth of federal regulatory authority 

contemplated by the Act itself and the inherent difficulties of defining precise bounds to 

regulational waters, the Corps' ecological judgment about the relationship between waters 

and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent 

wetlands may be defined 5 as waters under the Act. 

This holds true even for wetlands that are not the result of flooding or permeation by 

water having its source in adjacent bodies of open water. The Corps has concluded that 

wetlands may affect the water quality of adjacent lakes, rivers, and streams even when 

the waters of those bodies do not actually inundate the wetlands. For example, wetlands 

that are not flooded by adjacent waters may still tend to drain into those waters. In such 

circumstances, the Corps has concluded that wetlands may serve to filter and purify water 

draining into adjacent bodies of water, see 33 CFR § 320.4(b) (2)(vii) (1985), and to slow 

the flow of surface runoff into lakes, rivers, and streams and thus prevent flooding and 

erosion, see §§ 320.4(b)(2)(iv) and (v). In addition, adjacent wetlands may “serve 

significant natural biological functions, including food chain production, general habitat, 

and nesting, spawning, rearing and resting sites for aquatic ... species.” § 320.4(b)(2)(i). 

In short, the Corps has concluded that wetlands adjacent to lakes, rivers, streams, and 

other bodies of water may function as integral parts of the aquatic environment even 

when the moisture creating the wetlands does not find its source in the adjacent bodies of 

water.” (iv)

This broad interpretation of waters that are jurisdictional under the CWA reflects the 

mandate given to Congress under the Commerce Clause of the Constitution. Article I, 

Section 8 of the Constitution grants Congress the power “[t]o regulate 

Commerce...among the several States...” The Federal government has plenary control 

over interstate commerce and ‘acknowledges no limitations other than are prescribed in 

the Constitution’”. (v) 

“The Commerce Clause has served as the basis for nearly every major environmental and 

public health law passed by Congress, including the Clean Water Act”. (vi) 

“Notwithstanding the Supreme Court’s one-two punch to federal jurisdiction in SWANCC

and Rapanos, any restriction that the justices imposed on the Clean Water Act is based on 

the Court’s present understanding of Congressional intent in 1972, when Congress used 

the terms ‘navigable waters’ and ’waters of the United States’ to characterize federal 

jurisdiction under the Act. Neither SWANCC nor Rapanos reaches, much less describes, 

the underlying constitutional question: namely, what is the scope of Congress’s 

constitutional authority to protect the Nation’s waters? So, regardless of prior 

disagreements about statutory interpretation or Congressional intent, Congress remains 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

394

free to convey, through a ‘clear statement’, the scope it intends (and originally intended) 

for the Act”. (vii) 

And again – “...in the landmark 1985 Riverside Bayview decision, a unanimous Court 

upheld federal jurisdiction over ‘adjacent wetlands’ finding that Congress, in re-defining 

the term ‘navigable waters’ to mean ‘waters of the United States’ had intended that the 

historical word ‘navigable’ to be of ‘limited import’. Two years later, the Court would 

recognize that the Clean Water Act applies to virtually all bodies of water – a view by 

then long reflected in EPA and Corps regulations”. (viii) 

The two agencies, ACOE and EPA, are spending considerable effort and the public’s 

effort, not to mention taxpayers’ money, to determine the jurisdictional scope of two 

divided and confusing Supreme Court decisions that are sharply at odds with previous 

interpretations of the CWA. Before proceeding any further, we again urge the agencies to 

seek the original 1972 intent of Congress regarding its interpretation of the CWA, and the 

subsequent amendments of 1977 and 1987. (p. 4-5)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

George Washington University Regulatory Studies Center (Doc. #13563)

10.411 According to a recent, consensus-based legal analysis provided to state environmental 

commissioners: “with the changes in the proposed rule, all waters that are located within 

the riparian area or flood plain are considered ‘adjacent’ and thus per se jurisdictional.” 

This is based on the Agencies’ finding that “all such adjacent waters necessarily have a 

significant nexus in terms of the chemical, physical, or biological integrity of the adjacent 

water body and then downstream to other water bodies...”762 (p. 3)

Agency Response: The rule is based on the agencies’ careful examination of the 

science and the law to make a determination of significant nexus for covered 

adjacent waters. Preamble, IV and Technical Support Document, I and VIII. 

10.412 Recall that the factual basis of SWANCC involved an abandoned sand and gravel mining 

site that almost two dozen cities and villages in suburban Chicago wanted to convert to a 

landfill. Several pits had filled with water attracting over 121 species of birds, among 

them migratory ones. The Army Corps of Engineers claimed jurisdiction under section 

404’s “Migratory Bird Rule” and denied a permit to fill the ponds. On appeal the 

Supreme Court, in a 5-4 ruling, held that the Agencies could not use the Migratory Bird 

Rule to assert jurisdiction over intrastate, isolated waters.763 The mining pits were nonadjacent to any navigable waters which was a distinguishing feature from Riverside 

Bayview Homes (1985) in which the Court did allow for jurisdiction for adjacent 

wetlands.

SWANCC is still controlling case law. It was not overruled by Rapanos. The Agencies 

have misconstrued the law by de-coupling the SWANCC decision from Justice Kennedy’s 

 

762American College of Environmental Lawyers (ACOEL), "Memorandum for ECOS [The Environmental Council 

the States] Concerning Waters of the United States, September 1l,2014, p. 112.

763 Solid Waste Agency of Northern Cook county v. U.S Army Corps of Engineers, 531 U.S 159, 174 (2001). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

395

opinion in Rapanos. The Agencies are receiving, and will continue to receive, 

voluminous legal commentary on this proposed rule. But one matter does deserve 

mention because it is fundamental to the approach they have taken to jurisdiction 

generally and “significant nexus” specifically. (p. 5)

Agency Response: The rule is consistent with the decisions of the Supreme Court. 

Technical Support Document, I.C. 

Endangered Habitats League (Doc. #3384)

10.413 The two Supreme Court cases, SWANCC and Rapanos, have resulted in a lack of clarity 

when making CWA jurisdictional determinations, as well as a loss of CWA protections. 

Following SWANCC and the 2003 agency guidance, an estimated 20 million acres of so 

called “isolated” (non-floodplain) waters have gone unprotected. Rapanos, in particular, 

confused jurisdiction over adjacent wetlands and small streams. The Rapanos case 

produced five different opinions with no majority, as well as two different tests for

determining CWA jurisdiction: relative permanence and significant nexus standards. The 

resulting confusion has especially impacted small headwater and intermittently flowing

streams and adjacent wetlands. (p. 1)

Agency Response: The rule is consistent with caselaw and provides for increased 

clarity and certainty. Technical Support Document, I.C, Preamble, II and IV.

Coalition of Alabama Waterways (Doc. #15101)

10.414 The agencies assert jurisdiction too broadly over “adjacent” waters. The Proposed Rule 

includes within the scope of CWA jurisdiction “all waters, including wetlands, adjacent 

to a traditional navigable water, interstate water, the territorial seas, or

impoundment.”764By declaring all adjacent waters—not simply adjacent wetlands, as the 

current rule and past guidance do—categorically jurisdictional, the Proposed Rule sweeps 

in many waters not previously subject to federal regulation, which is contrary to the 

agencies’ assertion that the proposal does not expand jurisdiction. Furthermore, the 

definition of “adjacent” is overly broad, impermissibly relying on groundwater 

connections to capture “neighboring” waters that are not actually adjacent and otherwise 

would not fall within CWA jurisdiction. 

The agencies propose to consider adjacent waters jurisdictional because the agencies find 

that they, categorically, have a significant nexus to jurisdictional waters. However, the 

agencies’ scientific support for this finding is not yet final, and the agencies wrote the 

language without waiting for the outcome of the SAB review.765 Thus the flawed bases of 

the Proposed Rule’s impermissible expansion of CWA jurisdiction include not only the 

agencies’ faulty construction of the significant nexus text, but also incomplete science 

and analysis. 

Further, the Proposed Rule broadens the definition of “adjacent” to include waters that 

are not actually adjacent within the customary meaning of the word but rather are merely 

“neighboring,” as defined. The result is not only overbroad, it is also unclear. The 

 

764 79 Fed. Reg. at 22,198

765 See, e.g., 79 Fed. Reg. at 21,196.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

396

agencies propose to define “adjacent” as “bordering, contiguous or neighboring,” and to 

cover “[w]aters, including wetlands, separated from other waters of the United States by 

man-made dikes or barriers, natural river berms, beach dunes, and the like” as “adjacent 

waters.”766 The term “neighboring” is defined for purposes of the term “adjacent” and 

with respect to “riparian area” and “floodplain,” each of which would also be a defined 

term itself: “Neighboring” includes “waters located within the riparian area or floodplain 

of a [jurisdictional water], or waters with a shallow subsurface hydrologic connection to

such a jurisdictional water.”767

The terms “riparian area” and “floodplain” further define “neighboring” for purposes of 

the term “adjacent.” “Floodplain” would be defined as “an area bordering inland or 

coastal waters that was formed by sediment deposition from such water under present 

climatic conditions and is inundated during periods of moderate to high water flows.”768

The definition of “riparian area” is especially troublesome for its breadth and ambiguity: 

“The term riparian area means an area bordering a water where surface or 

subsurface hydrology directly influence the ecological processes and plant and 

animal community structure in that area. Riparian areas are transitional areas 

between aquatic and terrestrial ecosystems that influence the exchange of energy 

and materials between those ecosystems.”

769

The concept of “influenc[ing]” the ecosystem in the “area” bordering a water—by 

“surface or subsurface hydrology,” no less—is an amorphous and potentially far-reaching

standard. It is also an unworkable one likely to make case-specific determinations 

complicated, prolonged, and burdensome. 

The Proposed Rule impermissibly relies on groundwater to establish jurisdiction, given 

that “[t]he agencies have never interpreted ‘waters of the United States’ to include 

groundwater and the proposed rule explicitly excludes groundwater . . . .”770 It is not 

possible to rely on groundwater to establish jurisdiction without regulating the 

groundwater itself, which the agencies seem to acknowledge being beyond their 

authority. For example, suppose an activity with a discharge directly affecting only an 

area of shallow groundwater that provides some discernible hydrologic connection 

between a small upstream water and a jurisdictional area downstream. Under the 

Proposed Rule, the upstream water also must be jurisdictional. Is it the agencies’ position 

that it is without power to regulate the groundwater between the two putatively 

jurisdictional areas? If so, then the area constitutes a separation that is analogous to the 

isolation of the ponds at issue in SWANCC. If the agencies believe they can regulate that 

area directly under the CWA, then they should so state in a straightforward manner (and 

be prepared to defend that position in the courts). 

 

766 Id. at 22,263

767 Id.

768 Id.

769 Id.

770 Id. At 22,218
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

397

Contrary to the customary meaning of “adjacent” (“not distant,” “nearby,” or “having a 

common endpoint or border”771), under the agencies’ broadened interpretation, waters 

located a considerable distance from a tributary or other jurisdictional water may be 

considered adjacent waters. Again, Justice Kennedy identified that exact scenario as 

raising a problem for CWA jurisdiction. And far from making the identification of 

jurisdictional waters “less complicated and more efficient,” the Proposed Rule creates 

greater confusion and will inevitably lead to more protracted litigation. (p. 8-10)

Agency Response: The agencies disagree with the commenter’s assertion that by 

changing “adjacent wetlands” to “adjacent waters,” they have expanded the scope 

of the definition of “waters of the United States.” Technical Support Document, I. 

The rule explicitly excludes groundwater from the definition of “waters of the 

United States.” The rule does not include a provision defining adjacency and 

neighboring based on shallow subsurface flow. Preamble IV. The rule no longer 

provides that all waters within “floodplains,” and “riparian areas” are “adjacent.”

Instead, the rule now provides specific distance limits for “neighboring” waters. In 

addition, where the definition continues to use the term “floodplain,” it specifies the 

“100-year” floodplain and establishes a 1,500-foot maximum distance for 

neighboring waters in the rule. While the agencies acknowledge that shallow 

subsurface flow may be an important factor in evaluating a water on a case-specific 

significant nexus determination this does not mean that shallow subsurface 

connections are themselves “waters of the United States.” Preamble IV. The rule is 

consistent with the caselaw. Technical Support Document, I. C. See Science 

Compendium and Process Compendium.

Regulatory Environmental Group for Missouri (Doc. #16337.1)

10.415 The proposed definition of “adjacent” is at odd with the Supreme Court’s Rapanos

decision and therefore needs to be revised. It is often forgotten that the Rapanos decision 

is a consolidated case drew from two distinct fact patterns involving wetland jurisdiction: 

Rapanos and Carabell. The Carabell case pertained to the jurisdictional classification of 

a wetland that was separated from a jurisdictional drainage ditch by a man-made berm. 

The Corps determined that the wetland was jurisdictional. The Supreme Court vacated 

the Court of Appeals’ ruling that supported the Corps classification and remanded the 

case back to the lower court to determine if the wetland possesses a “significant nexus” 

with the nearby classified ditch. 

The Supreme Court’s remand of the Corps’ jurisdictional classification of the Carabell

wetland is important because at the time the Corps’ definition of what constitutes a 

“waters of the United States” included wetlands adjacent to jurisdictional waters and the 

definition of the term “adjacent” codified at 33 CFR §328.3(c) specifically provided that 

wetlands separated from a jurisdictional water, by a man-made berm, is an adjacent 

wetland. Thus according to this definition, the Carabell’s wetland was jurisdictional 

because it was adjacent to the jurisdictional ditch and the man-made berm had no effect 

on the determination. Yet, contrary to this definition, the Court found that the waters 

 

771 Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/adjacent. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

398

separated by a man-made berm were not de facto themselves waters of the United States. 

This is even though the justices were fully aware that the 4-foot-wide man-made berm 

allowed an occasional hydrological connection between the ditch and wetland when the 

ditch occasionally overflowed.772 The Rapanos decision therefore invalidated the Corps 

definition of “adjacent” because the definition was inconsistent with the decision. 

In the Proposed Rule (79 FR 22188, April 21, 2014), EPA proposes to revise the existing 

definition of the term “adjacent” by adding the words “Waters, including” to the 

beginning of the second sentence and changing the last word of the definition from 

“wetlands” to “waters.” EPA however does not propose to make any other changes to the 

existing text of the current definition. The proposed revised definition reads in full: 

“The term adjacent means bordering, contiguous, or neighboring. Water, 

including wetlands, separated from other waters of the United States by manmade 

dikes or barriers, natural river berms, beach dunes and the like are ‘‘adjacent 

waters.’’ 

Since the existing definition of “adjacent” codified at 33 CFR §328.3(c) is flawed 

because it is inconsistent with the Rapanos decision, so too is EPA’s proposed revision to 

the definition because it retains the same flawed criteria regarding berms, dikes, levees, 

and the like. 

The EPA should therefore revise the proposed definition of the term “adjacent” to reflect 

the Rapanos decision by adding qualifier verbiage that states wetlands separated from 

other waters of the United States by man-made dikes or barriers, natural river berms, 

beach dunes and the like may be ‘‘adjacent wetlands” if a significant nexus is present. (p. 

4-5)

Agency Response: The rule is based on the agencies’ careful examination of the 

science and the law to determine that adjacent waters seperated from other “waters 

of the United States” by constructed dikes or barriers, natural river berms, beach 

dunes and the like have a significant nexus with traditionally navigable waters, 

interstate waters, or the territorial seas. Preamble IV. The rule is consistent with 

decisions of the Supreme Court. I.C. 

Upper Mississippi, Illinois and Missouri Rivers Association (Doc. #19563)

10.416 The Proposed Rule includes within the scope of CWA jurisdiction "all waters, including 

wetlands, adjacent to a traditional navigable water, interstate water, the territorial seas, or 

impoundment.”773 By declaring all adjacent waters- not simply adjacent wetlands, as the 

current rule and past guidance do-categorically jurisdictional, the Proposed Rule sweeps 

in many waters not previously subject to federal regulation, which is contrary to the 

agencies ' assertion that the proposal does not expand jurisdiction. Furthermore, the 

definition of "adjacent" is overly broad, impermissibly relying on groundwater 

connections to capture "neighboring" waters that are not actually adjacent and otherwise 

would not fall within CWA jurisdiction . 

 

772 Rapanos, p. 11

773 79 Fed. Reg. at 22,198. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

399

The agencies propose to consider adjacent waters jurisdictional because the agencies find 

that they, categorically, have a significant nexus to jurisdiction al waters. However, the 

agencies ' scientific support for this finding is the still pending SAB report.774 Thus the 

flawed bases of the Proposed Rule' s impermissible expansion of CWA jurisdiction 

include not only the agencies' faulty construction of the significant nexus text , but also 

incomplete science and analysis. 

Further, the Proposed Rule broadens the definition of "adjacent" to include waters that 

are not actually adjacent within the customary meaning of the word but rather are merely 

"neighboring," as defined. The result is not only overbroad, it is also unclear. The 

agencies propose to define "adjacent" as "bordering, contiguous or neighboring," and to 

cover " [waters, including wetlands, separated from other waters of the United States by 

man-made dikes or barriers, natural river berms, beach dunes, and the like" as "adjacent 

waters.”775 The term "neighboring" is defined for purposes of the term "adjacent" and 

with respect to "riparian area" and "floodplain," each of which would also be a defined 

term itself: " neighboring" includes "waters located within the riparian area or floodplain 

of a [jurisdictional water], or waters with a shallow subsurface hydrologic connection to 

such a jurisdictional water.”776

The terms "riparian area" and "floodplain" further define "neighboring" for purposes of 

the term "adjacent." "Floodplain" would be defined as an area bordering inland or coastal 

waters that was formed by sediment deposition from such water under present climatic 

conditions and is inundated during periods of moderate to high water flows. The 

definition of "riparian area" is especially troublesome for it breadth and ambiguity: 

The term riparian area means an area bordering a water where surface or subsurface 

hydrology directly influence the eco logical processes and plant and animal community 

structure in that area. Riparian areas are transitional areas between aquatic and terrestrial 

ecosystems that influence the exchange of energy and materials between those 

ecosystems.777

The concept of "influenc[ing]" the ecosystem in the "area" bordering a water- by "surface 

or subsurface hydro logy," no less-is an amorphous and potentially far-reaching standard. 

It is also an unworkable one likely to make case-specific determinations complicated , 

prolonged, and burdensome. 

The Proposed Rule impermissibly relies on groundwater to establish jurisdiction, given 

that " [t]he agencies have never interpreted 'waters of the United States' to include 

groundwater and the proposed rule exp licitly exclude groundwater ....”778 It is not 

possible to rely on groundwater to establish jurisdiction without regulating the 

groundwater itself, which the agencies seem to acknowledge to be beyond their authority. 

For example, suppose an activity with a discharge directly affecting only an area of 

shallow groundwater that provides some discernible hydrologic connection between a 

 

774 See, e.g. , 79 Fed. Reg. at 21,196.

775 Id. at 22,263.

776 Id. 

777 Id.

778 ld. at 22,218.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

400

small upstream water and a jurisdictional area downstream. Under the Proposed Rule, the 

upstream water also must be jurisdictional. Is it the agencies ' position that it is without 

power to regulate the groundwater between the two putatively jurisdictional areas? If so, 

then the area constitutes a separation that is analogous to the isolation of the ponds at 

issue in SWANCC . If the agencies believe they can regulate that area directly under the 

CWA, then they should so state in a straightforward manner (and be prepared to defend 

that position in the courts). 

Contrary to the customary meaning of "adjacent" ("not distant," "nearby," or "having a 

common endpoint or border”779), under the agencies ' broadened interpretation, waters 

located a considerable distance from a tributary or other jurisdictional water may be 

considered adjacent waters. Again, Justice Kennedy identified that exact scenario as 

raising a problem for CWA jurisdiction. And far from making the identification of 

jurisdictional waters "less complicated and more efficient," the Proposed Rule creates 

greater confusion and will inevitably lead to more protracted litigation. (p. 7-9)

Agency Response: The rule no longer provides that all waters within 

“floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now provides 

specific distance limits for “neighboring” waters. In addition, where the definition 

continues to use the term “floodplain,” it specifies the “100-year” floodplain and 

establishes a 1,500-foot maximum distance for neighboring waters in the rule. The 

rule no longer includes a provision defining “neighboring” based on a surface or 

subsurface hydrologic connection. While the agencies acknowledge that shallow 

subsurface flow may be an important factor in evaluating a water on a case-specific 

significant nexus determination this does not mean that shallow subsurface 

connections are themselves “waters of the United States.” The rule explicitly 

excludes groundwater from the definition of “waters of the United States.” 

Preamble IV. 

Consistent with Justice Kennedy’s opinion, the rule is based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for covered adjacent waters. Preamble, III and IV and Technical Support 

Document, I and VIII. The agencies responded to commenter’s concerns expressed 

concern with the timing and sequencing of the SAB report. Science Compendium, 

Process Compendium.

10.3. OTHER WATERS

Agency Summary Response

In Rapanos, Justice Kennedy provides an approach for determining what constitutes a 

“significant nexus” that can serve as a basis for defining “waters of the United States” through 

regulation. Justice Kennedy concluded that “to constitute ‘navigable waters’ under the Act, a 

water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or 

that could reasonably be so made.” Id. at 759 (citing SWANCC, 531 U.S. at 167, 172). Again, 

 

779 Merriam-Webster Online Dictionary , http://www.merriam-webster.com/dictionary/adjacent. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

401

the four justices who signed on to Justice Stevens’ opinion would have upheld jurisdiction under 

the agencies’ existing regulations and stated that they would uphold jurisdiction under either the 

plurality or Justice Kennedy’s opinion. Justice Kennedy stated that wetlands should be 

considered to possess the requisite nexus in the context of assessing whether wetlands are 

jurisdictional: “if the wetlands, either alone or in combination with similarly situated [wetlands] 

in the region, significantly affect the chemical, physical, and biological integrity of other covered 

waters more readily understood as ‘navigable.’” Id. at 780. In light of Rapanos and SWANCC, 

the “significant nexus” standard for CWA jurisdiction that Justice Kennedy’s opinion applied to 

adjacent wetlands also can reasonably be applied to other waters such as ponds, lakes, and nonadjacent wetlands that may have a significant nexus to a traditional navigable water, an interstate 

water, or the territorial seas. This provision does not render the rule broader in scope than the 

existing regulation for the reasons articulated in the Technical Support Document, I.B.

Specific Comments

Cass County Government (Doc. #5491)

10.417 In our view, the proposed rules seek to widely expand the jurisdiction of EPA and the 

Corps under the CWA, and to roll-back the outcome of the Supreme Court's decision in 

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 531 U.S 

159 (2001). .While EPA contends the proposed rule does not seek to protect any new 

types of waters and does not broaden the coverage of the CWA, the clear language of the 

proposed rule revisions expands greatly on the proposed 2011 guidance document 

circulated by EPA and the Corps, and basically enacts a more expansive version of the 

migratory bird rule. In short, the new descriptions of "other waters" and "adjacent waters" 

in the proposed rules seek to render previously non-jurisdictional waters jurisdictional via 

the rulemaking process, and contrary to Supreme Court precedent. (p. 1)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with caselaw. Technical Support Document, I.B. and C. The rule is not 

based on the migratory bird rule.

Offices of the Attorney Generals of Oklahoma, West Virginia and Nebraska (Doc. #7988)

10.418 Even for waters that escape the Agencies' capacious per se categories, the Proposed Rule 

provides that such waters are covered by the CW A on a "case-by-case basis," so long as 

a particular water "in combination with other similarly situated waters, including 

wetlands, located in the same region, have a significant nexus to a" core water. Id. § 

230.3(s)(7). The Rule defines this inquiry as whether these "similarly situated waters" 

"significantly affect the chemical, physical, or biological integrity" of a core water. Id. § 

230.3(u)(7).780 (p. 5) 

Agency Response: While the rule continues to provide for case-specific significant 

nexus determinations, it has limited the provision from that in the proposal. 

Preamble, IV.

 

780 Id. § 230.3(t). The Proposed Rule also includes several very narrow exceptions regarding waters that the 

Agencies have deemed never to have a "significant nexus" to core waters. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

402

Arizona State Land Department (Doc. #14973)

10.419 Importantly, though the Proposed Change is, in effect, a mechanism with which to 

circumvent the judicial process, a judicial decision is being used to support its goals. 

Specifically, Justice Kennedy's 2006 Rapanos v. U.S. decision is incorrectly being 

heralded as unequivocal support of this endeavor.781

The Rapanos Court summarily dismissed the Army Corps of Engineers' (Corps) claim to 

seemingly unlimited authority over water use. The plurality, however, was unable to 

draw a bright line limiting this jurisdiction. Rather than respecting the separation of 

powers and allowing the courts to continue to unravel this question to the appropriate 

degree, the Environmental Protection Agency (EPA) and the Corps have taken this

opportunity to unilaterally decide that Justice Kennedy's "significant nexus" test serves as 

the final authority on the question of how to determine what, exactly, constitutes "other 

waters." This step is misguided not only because it is outside the scope of the separation 

of powers but, also, because Justice Kennedy's test was not embraced by the majority; in 

fact, Justice Kennedy himself has since been viewed as moving away from the reasoning 

behind the test, which appears to be a central argument advanced in support of the 

Proposed Change.782

The "significant nexus" test is being touted as the obvious answer to the question of how 

to define "other waters."783 If this had been the case, however, the Rapanos Court would 

have made that determination in 2006. In reality, the "significant nexus" test is merely 

one approach that has been offered. Not only did the Court also advance a test based on 

the "relative permanence" of bodies of water, but the appellate courts that have since 

reviewed the issue have not uniformly accepted one test over the other.784 Moreover, 

while the viability of the Proposed Change relies heavily upon the misguided position 

that Rapanos somehow stands for the application of a "significant nexus" test, it fails to 

assess the impact of the Supreme Court's 2008-2009 Term on this argument.

During 2008-2009, the Court heard Energy Corp. v. Riverkeeper, Inc.

785 and Coeur 

Alaska, Inc. v. Southwest Alaska Conservation Council.

786

 Both cases added to the 

Court's "lengthy CWA jurisprudence" and served to "stray[] far from the express 

congressional objective of the CWA."787 This is important because Justice Kennedy has 

been credited with taking account of the CWA's objectives in his formulation of the 

"significant nexus" test.788 Therefore, the fact that Justice Kennedy has joined the 

majority opinion in cases in which these objectives have not determined the Court's 

 

781 Rapanos v. U.S., 547 U.S. 715 (2006).

782 Mark L. Latham, The 2008-2009 Term and the Clean Water Act: Justice Kennedy Where Art Thou?, 44 New 

Eng. L. Rev. 293 (2010).

783 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22193.

784 U.S. Congressional Research Service. The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and 

Beyond (RL33263; Sept. 3, 2014), by Robert Meltz and Claudia Copeland, 

http://nationalaglawcenter.org/wpcontent/uploads/assets/crs/RL33263.pdf.

785 Energy Corp. v. Riverkeeper, Inc. 129 S. Ct. 1498 (2009).

786 Coeur Alaska, Inc. v. Southwest Alaska Conservation Council, 129 S. Ct. 2458 (2009). 

787 Latham, supra note

788 Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

403

decisions calls into question the ability of the EPA and the Corps to use his 2006 

"significant nexus" test to now advance the Proposed Change. 

The Proposed Change is heavily supported by a misunderstanding of both Rapanos and 

the reasoning behind Justice Kennedy's "significant nexus" test. In reality, the Court has 

not made a consistent determination regarding "waters of the United States." Therefore, 

to allow a regulatory agency to misconstrue case law and then use that misinterpretation 

to advance its own goals would be irresponsible, at best. There has already been an 

evolution by the Court between the 2006 Rapanos case and the 2008-2009 Term. Thus, 

the Court should be allowed to continue its work unimpaired by the other branches of 

government and without being held to a standard that is already obsolete. (p. 4-6)

Agency Response: The rule is consistent with the statute and caselaw. Technical 

Support Document, I.A. and C. The agencies disagree that the cited cases addressed 

the scope of “waters of the United States” or have implications for Justice 

Kennedy’s opinion in Rapanos.

North Carolina Department of Environment and Natural Resources (Doc. #14984) 

10.420 The proposed definition of WOTUS violates the Commerce Clause of the United States 

Constitution. The Supreme Court has recognized limits to federal authority under the 

Commerce Clause in the context of the Clean Water Act most recently in Solid Waste 

Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 

159 (2001) ("SWANCC") and Rapanos v. United States, 541 U.S. 715 (2006) 

("Rapanos"). 

As recognized by the Court in both Rapanos and SWANCC, Congress's decision to link 

WOTUS to "navigable waters" is important. The Act defines "navigable waters" as 

"waters of the United States." U.S.C. § 1362 (7). Congress did not use the term "waters in 

the United States," which appears to be the assumption of the Federal Agencies, as there 

are few waters which are not pulled into federal jurisdiction by this rule. 

In SWANCC, the Court examined the Corps' "Migratory Bird Rule," which purported to 

extend jurisdiction under the Act to any intrastate waters "which are or could be used as a 

habitat" by migratory birds. The SWANCC majority, of which Justice Kennedy was a 

part, held that Federal Agencies' authority did not extend to isolated sand and gravel pits 

under the Migratory Bird Rule because federal authority does not extend to 

"nonnavigable, isolated, intrastate waters." SWANCC at 171. In Rapanos, the Supreme 

Court examined federal jurisdiction over four separate wetlands, which were near ditches 

or man-made drains. The plurality held that WOTUS includes only "relatively permanent, 

standing or continuously flowing bodies of water" and adjacent wetlands that have a 

"continuous surface connection to bodies that are 'waters of the United States' in their 

own right." Rapanos at 739-42. The plurality made clear that WOTUS does not include 

"channels through which water flows intermittently or ephemerally, or channels that 

periodically provide drainage for rainfall," nor does it include "wetlands with only an 

intermittent, physically remote hydrologic connection to [WOTUS]." Id at 742. 

Justice Kennedy's concurring opinion, upon which the EPA has chosen to rely, held that 

federal jurisdiction extends to waters that "are navigable in fact or that could reasonably 

be so made" or adjacent wetlands that have a "significant nexus" to such waters. Id at 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

404

779-80. Justice Kennedy added that a "significant nexus" exists when wetlands "alone or 

in combination with similarly situated lands in the region ...significantly affect the 

chemical, physical, and biological integrity of other covered waters understood as 

navigable in the traditional sense." Id at 780. However, Justice Kennedy also criticized 

the dissenters for "reading the word "navigable" out of the statute, which he believed to 

be a "central requirement" of the Act. Id at 778-79. 

The expansion of federal jurisdiction under EPA's proposed definition of WOTUS 

blatantly ignores the Rapanos plurality's requirement that adjacent waters have a 

"continuous surface connection" to WOTUS waters. As a result, EPA's claim on its 

website that the proposed rule is "consistent with the Supreme Court's more narrow 

reading of Clean Water Act jurisdiction," is simply untrue. 

The proposed rule selectively relies on Justice Kennedy's concurring opinion to expand 

federal jurisdiction under the Act. The proposed rule ignores the Court's rejection of both 

ecological and hydrologic connectivity as a basis for federal jurisdiction of isolated 

waters. In fact, under the proposed rule, hydrologic and biological connectivity becomes 

the guidepost for jurisdiction. Under this rationale, federal jurisdiction would extend to 

all waters in the US and even dry land that is occasionally moist. However, if Justice 

Kennedy intended to establish a rule based on hydrologic connectivity alone in his 

concurring opinion, the dissenters in Rapanos would have become the majority. The 

Federal Agencies are not entitled to effect that reversal. In fact, Justice Kennedy 

expressly admonished the Sixth Circuit for basing its decision on hydrologic connectivity 

alone. Id at 784.

The "other waters" provision abuses the Court's precedent by allowing Federal Agencies 

to aggregate isolated bodies of water to determine if a significant nexus exists. The 

significance of the nexus in Rapanos was judged with respect to the particular body of 

water at issue, not by all similar bodies of waters collectively. Even in his concurrence, 

Justice Kennedy stated that "wetlands" could be considered "either alone or in 

combination with similarly situated lands" to determine whether those wetlands have a 

significant nexus to a traditionally navigable water. Rapanos at 780. Justice Kennedy 

envisioned consideration of the land surrounding the body of water at issue based on his 

view that a wetland' s "absence of an interchange" with other bodies of water and 

"filtering and runoff-control functions" may justify protection of the individual water. 

Rapanos at 775. However, there is no basis for EPA's authority to aggregate isolated 

bodies of water to determine whether a significant nexus exists for any individual body of 

water under the Scalia plurality opinion or the Kennedy concurrence. 

Furthermore, under EPA' s proposed rule, there is no effective limitation on Federal 

Agencies' ability to aggregate isolated waters to determine whether a significant nexus 

exists. As written, the rule allows EPA to consider isolated bodies of water within an 

entire watershed that "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 chemical, physical, or biological 

integrity" of a traditionally navigable water. Vague language, such as "similar functions" 

and "single landscape," combined with the alleged authority to aggregate isolated waters 

based on their proximity to each other regardless of their proximity to a traditional 

navigable water provides Federal Agencies unfettered discretion to assert their authority. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

405

Additionally, the aggregated waters need only have more than a "speculative or 

insubstantial" effect on a traditionally navigable body of water. Still further, EPA has 

chosen to edit Justice Kennedy's written opinion by removing his use of "and" and 

replacing it with "or" so that, under the proposed rule, the aggregated affect need only 

affect the "chemical, physical, or biological integrity" of a traditionally navigable water. 

See Rapanos at 780. EPA has selectively relied on some portions of the Act and the 

Court's opinions at the expense of others to extend federal jurisdiction. It is patently 

misleading to claim, as the preamble does, that ''the scope of regulatory jurisdiction of the 

CW A in this proposed rule is narrower than that under the existing regulations." 79 Fed. 

Reg. 22188, 22192. (p. 4-5)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the caselaw and the Constitution. Technical Support Document, I.B. 

and C. The agencies’ significant nexus determinations are not based solely on 

hydrologic connections. Preamble, III; Technical Support Document, II.

Tennessee Department of Environment and Conservation (Doc. #15135)

10.421 The SAB review of the Report includes the following: 

“As used in the SAB review letter of the Report, the term downstream is used to 

refer broadly to connectivity that is both downstream and down gradient with the 

understanding that all water flows down gradient towards lesser hydraulic head 

than at the point of origin or point of interest."789 The Report itself does not 

clearly define the term downstream or the term down gradient and appears to use 

the two terms interchangeably.”

As used in a scientific report, this makes sense. However, the law requires that waters 

under consideration for federal jurisdiction under the CWA have a significant nexus to 

traditionally navigable waters, not just any water down gradient. Therefore, if SAB' s 

review of the Report and the Report's scientific conclusions are more broadly applied to 

any down gradient water, then EPA and the Corps must explain in great detail how they 

extended those same conclusions to just traditionally navigable waters. This same issue 

appears in the fact that, by definition, the Report utilizes a scientific definition for a 

wetland that requires only one of the three characteristics for a wetland that the federal 

regulation requires."

790EPA and the Corps must describe how scientific conclusions with 

potentially broader application than the law would allow were utilized appropriately to 

draw legal conclusions required for the proposed rule. (p. 10)

Agency Response: See Preamble, III; Technical Support Document, II; Science 

Response to Comments Compendium

Indiana Department of Environmental Management (Doc. #16440)

10.422 We are concerned that the draft report relies on studies that conclude that waters are 

connected through the movement of birds, animals, and insects. In Solid Waste Agency of 

Northern Cook County v, U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159, 174 

 

789 SAB Report Review Letter, at p. 1, fn. 1.

790 Report, at p. 3-5; 3-6 and A-22.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

406

(2001), the Supreme Court rejected this type of connection as a basis for federal 

jurisdiction, stating it "would result in a significant impingement of the States' traditional 

and primary power over land and water use." We are also concerned that the draft report 

relies on studies of the impacts of storing water to assert that water is connected. Storage 

of water implies choices regarding water allocation that Congress expressly left to the 

States under section 101(g) of the Clean Water Act. If the draft report is to be used as a 

basis for establishing the Waters of the United States rule, studies unrelated to water 

quality should be removed from the report. (p. 2)

Agency Response: Under the significant nexus standard it is necessary and 

appropriate to assess whether waters significantly affect the biological integrity of 

traditional navigable waters, interstate waters, or the territorial seas and the 

agencies' assessment of biological data and information was based on any effects on 

biological integrity. Preamble, III and IV and Technical Support Document, I.C. 

and VII. To the extent the commenter is asserting that there is no biological or 

physical component of water quality, the agencies' disagree. See e.g. CWA Sections 

101(a), 303.

National Association of Conservation Districts (Doc. #12349)

10.423 As for isolated wetlands, EPA has been somewhat transparent in its intent to recapture 

many types of water bodies, Including isolated wetlands, no longer subject to federal 

jurisdiction under SWANCC and Rapanos. EPA argues that its proposal does not apply to 

waters not historically or ID previously regulated, which is partially correct. The 

"migratory bird rule" (MBR), struck down In SWANCC, authorized the government to 

assert jurisdiction broadly over isolated waters "which are or would be used as habitat by 

... migratory birds that cross state lines." In theory, the "migratory bird rule" granted 

broad expansive authority that could have reached nearly any and all water bodies. We do 

not think these Isolated wetlands significantly Impact water quality in the United States 

and should therefore not be considered jurisdictional. (p. 6-7)

Agency Response: The case-specific provision of the rule requires a determination 

of significant nexus, therefore a water that does not, alone or in combination, 

significantly effect the chemical, physical, or biological integrity of a traditional 

navigable water, interstate water, or the territorial seas will not be considered 

jurisdictional.

10.424 For the last several decades, the Supreme Court has sought to clarify the concept of 

“waters of the U.S.”; but in many respects, it has created greater confusion. Three 

seminal cases inform the current rulemaking: U.S. v. Riverside Bayview, 474 U.S. 121

(1985), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 

(SWANCC), 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006).

The Rapanos case requires the government to establish a “significant nexus” (biological, 

chemical or physical) between non-navigable and traditionally navigable waters (TNWs) 

to establish CWA jurisdiction. The effect of the SWANCC and Rapanos decisions was to 

significantly limit the federal government’s authority over certain waters historically 

deemed jurisdictional, including isolated, intrastate wetlands and wetlands adjacent to 

tributaries located remotely from TNWs. (p. 7)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

407

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.

10.425 This broadened jurisdiction would include water features on agricultural lands that have 

not been subject to CWA jurisdiction since before the SWANCC case in 2001. As noted 

above, EPA’s authority prior to SWANCC based on the “migratory bird rule” was 

significantly broad in that any water used or potentially used by a migratory bird would 

be subject to jurisdiction. As a practical matter, this rule would reestablish jurisdiction 

over most waters on agricultural working lands lost under SWANCC and Rapanos. (p. 7)

Agency Response: The agencies agree that jurisdiction under the “migratory bird 

rule” was very broad. The scope of the rule is narrower than the existing 

regulation. Technical Support Document, I.B.

Parish of Jefferson (Doc. #14574.1)

10.426 SWANCC decided there are "isolated waters" (e.g., certain ponds) that are not regulated 

by the Commerce Clause, the sole source of the federal agencies' authority over nonfederal territory under the Clean Water Act. It is only the water quality connection of 

wetlands to open bodies of navigable water that could justify federal wetland regulation 

of wetlands. However, not every wetland connection to any type of water, however 

remote (subsurface), strained (in combination with other wetlands) or expansive (any 

flood plain location) can justify federal regulation. Protection of wetlands bordering truly 

navigable waters is the key. In this vein, EPA references the draft report Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence (2013) ("Report"). Although the Report exploits a general truism, that virtually 

everything is "connected", that alone is not a legal test for federal regulation under the 

Commerce Clause. (p. 4)

Agency Response: The rule is consistent with the caselaw and the Constitution. 

Technical Support Document, I.C. The rule is based on the agencies’ reasonable 

significant nexus determinations and is not based on a conclusion that “virtually 

everything is ‘connected.’” Preamble, III; Technical Support Document, II.

GBMC & Associates (Doc. #15770)

10.427 The proposed rule allows the agencies for the first time to make significant nexus 

determinations based on "aggregate" or "cumulative" affects of multiple tributaries or 

wetlands in a watershed (Sec.II.C., Sec. III.H. and Appendix A.) That is, one small 

tributary or wetland may not have a significant nexus to a TNW, but all the tributaries in 

the watershed combined do, and all the "adjacent" wetlands combined in the watershed 

do, so they all have a significant nexus. This does not appear to be in the spirit of the 

Rapanos decision and is not consistent with the functions of many headwater streams 

(see comments 3 and 4 above). If this proposed rule becomes law it is a greatexpansion of 

Section 404 jurisdiction and is not consistent with the Rapanos decision. (p. 5)

Agency Response: The rule is narrower than the existing regulation and is 

consistent with caselaw. Technical Support Document, I.B and C. The Science 

Report, the Preamble, and the Technical Support Document document the functions

of headwater streams and other waters that meet the definition of “tributary.”
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

408

Waters Advocacy Coalition (Doc. #17921.1)

10.428 The agencies’ regulation of “other waters” as proposed violates the Supreme Court’s 

decision in SWANCC. Under the proposed rule, CWA jurisdiction will extend to, “[o]n a 

casespecific basis, other waters, including wetlands, provided that those waters alone, or 

in A-8 combination with other similarly situated waters, including wetlands located in the 

same region, have a significant nexus” to traditional navigable waters, interstate waters, 

or territorial seas. 79 Fed. Reg. at 22,263. Contrary to the agencies’ assertions, this is an 

expansion of jurisdiction from the current regulations.791 As we have previously noted in 

comments, for all of the reasons articulated in SWANCC, it is unlawful for the agencies to 

assert jurisdiction over these “other waters.”792

The SWANCC Court held that “nonnavigable, isolated, intrastate waters” – which, unlike 

the wetlands at issue in Riverside Bayview, did not actually abut a navigable waterway –

were not jurisdictional under the CWA. 531 U.S. at 168. As discussed in section II.B., the 

SWANCC Court found that assertion of jurisdiction over such features would raise 

“significant constitutional questions” and “would result in a significant impingement of 

the States’ traditional and primary power over land and water use.” Id. at 174. The 

Court’s holding in SWANCC, including its rationale for rejecting jurisdiction in the case 

of non-navigable, isolated waters, was reaffirmed in Justice Kennedy’s Rapanos

concurrence. Rapanos, 547 U.S. at 767. The agencies should eliminate proposed 

paragraph (a)(7) regulating “other waters,” and, consistent with SWANCC, all “other 

waters” should be excluded from jurisdiction by rule. 

In SWANCC, there was no need to perform an elaborate analysis because the lack of 

proximity alone was sufficient to determine there was no meaningful connection to 

TNWs. Like the ponds at issue in SWANCC, “other waters” that do not fall within the 

broad scope of the agencies’ proposed “tributary” and “adjacent waters” categories are 

truly isolated waters that are not jurisdictional under the CWA. (p. 105-106)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with caselaw. Technical Support Document, I.B. and C.

Coeur Mining Inc. (Doc. #16162)

10.429 Such farreaching jurisdiction over features far from navigable waters and carrying only 

minor volumes of flow was not what Congress intended and goes far beyond even the 

broadest interpretation of recent Supreme Court decisions in Solid Waste Agency of 

Northern Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172 (2001) 

(SWANCC), and Rapanos v. United States, 547 U.S. 715 (2006). (p. 3)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.

 

791 The agencies state that the current regulations assert jurisdiction over “other waters” “more broadly than what is 

proposed today.” 79 Fed. Reg. at 22,212. But SWANCC invalidated the agencies’ broad use of the 33 C.F.R. § 

328(a)(3) “other waters” provision to assert jurisdiction.

792 WAC Comments on 2011 Draft Guidance, Exhibit 1 at 87.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

409

Pennsylvania Aggregates and Concrete Association (Doc. #16353)

10.430 .Over the years, the agencies have tried and failed to broaden the interpretation of what 

are jurisdictional waters. The proposed rule attempts to apply the “waters of the United 

States” definition to a litany of water features that are significantly different from 

traditional navigable waters and have little volume, including ephemeral drainages, storm 

sewers and culverts, directional sheet flow during storm events, drain tiles, and manmade drainage ditches. And once again, in concert with both the SWANCC and Rapanos

decisions, are beyond the scope of federal jurisdiction.

The proposed rule does not faithfully implement Rapanos because it is not based on 

determining which waters would meet both tests. To abide by the Rapanos Decision, only 

those waters that would meet both the plurality and Kennedy tests can be deemed 

jurisdictional. (p. 4)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document. I.C. The rule explicitly excludes certain features, including for example 

ephemeral drainages that do not meet the definition of tributary. Preamble, IV.

Independent Petroleum Association of America, et al. (Doc. #18864)

10.431 The Agencies fail to follow the plurality opinion in Rapanos resulting in a proposed 

definition of Waters of The United States not supported by case law or statutory law. In 

1985, the Supreme Court of the United States first considered whether the CWA, and the 

regulations promulgated under its authority by USACE, authorized USACE to require 

landowners to obtain permits from USACE before discharging fill materials into 

wetlands adjacent to navigable bodies of waters and their tributaries. United States v. 

Riverside Bayview Homes, Inc., 474 U.S. 121, 123 (1985). In Riverside Bayview, 

respondent Riverside owned eighty acres of low-lying marshy land in Michigan, and in 

1976, began to place fill material on its property in preparation for the construction of a 

housing development. Id. at 124. USACE believed that the low-lying marshy land was an 

"adjacent wetland" under its jurisdiction as a "water of the United States." ld. USACE 

filed suit seeking to enjoin Riverside from filling the property without USACE's 

permission. Id. 

The Court held that USACE's jurisdiction extended to all wetlands adjacent to navigable 

or interstate waters and their tributaries. Id. at 129. Wetlands are lands that "are inundated 

or saturated by surface or ground water at a frequency and duration sufficient to support, 

and that under normal circumstances do support, a prevalence of vegetation typically 

adapted for life in saturated soil conditions." Id. (citing 33 C.F.R. § 323.2(c) (1985)). The 

Court opined that USACE has jurisdiction over adjacent wetlands, including those lowlying marshy areas of land on respondent's property. In short, the Court concluded that 

wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as 

integral parts of the aquatic environment even when the moisture creating the wetlands 

does not found its source in the adjacent bodies of water. The Court did not conclude that 

the USACE's judgment on these matters was unreasonable, and it therefore concluded 

that a definition of "waters of the United States" encompassing all wetlands adjacent to 

other bodies of water over which the USACE has jurisdiction is a permissible 

interpretation of the Act. Id. at 135. Because respondent's property is part of a wetland 

that actually abuts on a navigable waterway, respondent was required to have a permit in 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

410

this case. Id. at 135. Riverside Bayview established for the first time that wetlands that 

abut navigable waters could themselves be considered navigable waters under the CWA.

(p. 15-16)

Agency Response: The rule is consistent with the statute and caselaw. Technical 

Support Document, I.A and C.

10.432 Following its decision in Riverside Bayview, the Supreme Court was asked to again 

determine USACE' s jurisdiction under the CWA. In Solid Waste Agency of N. Cook 

Cnty. ("SWANCC'), twenty-three suburban Chicago cities and villages engaged in an 

effort to locate and develop a disposal site for nonhazardous solid waste. Solid Waste 

Agency of N. Cook Cnty. v. US. Army Corps ofEng'rs, 531 U.S. 159, 163 (2001). The 

cities and villages decided that a 533- acre parcel of land that was formerly a sand and 

gravel mining operation would be appropriate for the disposal of nonhazardous solid 

waste. Id. Because operation of the disposal site required the filling of permanent and 

seasonal ponds, SWANCC contacted USACE to determine if a permit was required 

under the CWA. Id. 

USACE initially concluded that it had no jurisdiction over SWANCC because the site 

contained no wetlands or areas that "support vegetation typically adapted for life in 

saturated soil conditions." /d. at 164 (citing 33 C.F.R. § 328.3(b) (1999)). USACE later 

changed its decision, asserting jurisdiction under the "Migratory Bird Rule,

“[T]he USACE formally "determined that the seasonally ponded, abandoned 

gravel mining depressions located on the project site, while not wetlands, did 

qualify as 'waters of the United States' ... based upon the following criteria: (1) the 

proposed site had been abandoned as a gravel mining operation; (2) the water 

areas and spoil piles had developed natural character; and (3) the waters areas are 

used as habitat by migratory bird [sic] which cross state lines.” Id. at 164-65 

(citing U.S. Army Corps of Engineers, Chicago District, Dept. of Army Permit 

Evaluation and Decision Document, Lodging of Petitioner, Tab No. 1, p. 6). 

The Court held the "Migratory Bird Rule" was not sufficient to establish USACE 

jurisdiction under the CW A. Id. at 167. The Court opined:

“We thus decline respondents' invitation to take what they see as the next 

ineluctable step after Riverside Bayview Homes: holding that isolated ponds, some 

only seasonal, wholly located within two lllinois counties, fall under§ 404(a)'s 

definition of "navigable waters" because they serve as habitat for migratory birds. 

As counsel for respondents conceded at oral argument, such a ruling would 

assume that ''the use of the word navigable in the statute ... does not have any 

independent significance." Tr. of Oral Arg. 28. We cannot agree that Congress' 

separate definitional use of the phrase "waters of the United States" constitutes a 

basis for reading the term "navigable waters" out of the statute. We said in 

Riverside Bayview Homes that the word "navigable" in the statute was of "limited 

import," 474 U.S. at 133, and went on to hold that§ 404(a) extended to 

nonnavigable wetlands adjacent to open waters. But it is one thing to give a word 

limited effect and quite another to give it no effect whatever. The term 

"navigable" has at least the import of showing us what Congress had in mind as 

its authority for enacting the CWA: its traditional jurisdiction over waters that 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

411

were or had been navigable in fact or which could reasonably be so made.” ld. at 

171-172 (citing United States v. Appalachian Elec. Power Co., 311 U.S. 377,407-

08 (1940). 

The use of the phrase "significant nexus" appeared in SWANCC for the first time. The 

Court held: 

“It was the "significant nexus" between the wetlands and "navigable waters" that 

informed our reading of the CW A in Riverside Bayview Homes; indeed, we did 

not "express any opinion" on the "question of the authority of the Corps to 

regulate discharges of fill material into wetlands that are not adjacent to bodies of 

open water..." ld. at 167 (citing Riverside Bayview Homes, Inc., 474 U.S. at 131-

32, n. 8). 

Although the Court in SWANCC did not elaborate as to what constitutes a "significant 

nexus," the phrase becomes an important component in a later decision, Rapanos v. U.S.,

and in the agencies' proposed rule for the definition of "waters of the United States." (p. 

16-17)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.

10.433 In 2006, the Supreme Court issued, John A. Rapanos, et al. v. United States, 547 U.S. 

715 (2006), the most recent decision interpreting USACE's jurisdiction under the CWA. 

This decision, however, only muddied the waters, as it was a plurality decision, with the 

Court splitting 4-1-4. Justice Anthony Kennedy joined the Court only in its decision to 

remand the cases to the Sixth Circuit for further proceedings. The result from Rapanos is 

the emergence of two different standards that could be controlling: the plurality standard 

(Justice Scalia, The Chief Justice, Justice Thomas, and Justice Alito) and Justice 

Kennedy's "significant nexus" standard. It is the position of the Associations that the 

plurality opinion should govern implementation of the Clean Water Act "waters of the 

United States." The agencies have over-stated the Kennedy standard and have extended 

the proposed definition beyond the scope of the CWA. 

In Rapanos, petitioner backfilled land that contained sometimes-saturated soil conditions. 

Rapanos v. US., 547 U.S. 715, 720 (2006). "The nearest body of navigable water was 

eleven to twenty miles away" from the saturated lands, yet petitioner was informed by 

USACE that his saturated lands were "waters of the United States," and he would need a 

permit to fill said lands. Id. The Supreme Court granted certiorari in order to determine if 

USACE had jurisdiction over the petitioner's saturated lands. 

The plurality in Rapanos held that channels through which water flows intermittently or 

ephemerally, or those channels that periodically allow drainage of rainfall, are not 

"waters of the United States.":

“In sum, on its only plausible interpretation, the phrase, "waters of the United 

States" includes only those relatively permanent, standing or continuously 

flowing bodies of water "forming geographic features" that are described in 

ordinary parlance as "streams . . . oceans, rivers, and lakes." See Webster's 

Second 2882. The phrase does not include channels through which water flows 

intermittently or ephemerally, or channels that periodically provide drainage for 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

412

rainfall. The Corps' expansive interpretation of the “waters of the United States" is 

thus not ‘based on a permissible construction of the statute.’” Id. at 739 (citing 

Chevron US.A. Inc. v. Natural Res. Def Council, Inc. 467 U.S. 837, 843 (1984)). 

The Associations direct the agencies' attention to the plurality's guidance in which they 

found that the USACE's authority to regulate limited "waters of the United States" 

constituted those waters that were "relatively permanent, standing or flowing bodies of 

water ... forming geologic features" and not "ordinary dry channels through which water 

occasionally or intermittently flows." Id. at 732-33. The plurality excluded from the 

definition "streams that flow intermittently or ephemerally, or channels that periodically 

provide drainage for rainfall." Id at 739. The plurality also considered whether a wetland 

may be considered "adjacent to" remote "waters of the United States," because of mere 

hydrologic connection to them:

“[O]nly those wetlands with a continuous surface connection to bodies that are 

"waters of the United States" in their own right, so that there is no clear 

demarcation between "waters" and wetlands, are "adjacent to" such waters and 

covered by the Act. Wetlands with only an intermittent, physically remote 

hydrologic connection to "waters of the United States" do not implicate the 

boundary-drawing problem of Riverside Bayview, and thus lack the necessary 

connection to covered waters that we described as a "significant nexus" in 

SWANCC.” ld. at 742 (citing Solid Waste Agency ofN Cook Cnty., 531 U.S. at 

167). 

The proposed expansion of the definition of "waters of the United States" to include 

"other waters" extends far beyond the plurality ruling of the Court. The "significant 

nexus" that the plurality alludes to from SWANCC is the standard advanced by Justice 

Kennedy in his concurring opinion. It is clear from the proposal that the agencies ignore 

the plurality opinion reasoning and instead selectively read only the "significant nexus" 

test as discussed further below.

The "significant nexus" standard Justice Kennedy determined that the Rapanos decision 

required the Court to determine "whether the term 'navigable waters' in the CWA extends 

to wetlands that do not contain and are not adjacent to waters that are navigable in fact." 

Id. at 759 (citing Solid Waste Agency of N. Cook Cnty, 531 U.S. at 159). In Justice 

Kennedy's view, it is the "significant nexus," first mentioned in SWANCC, which is the 

determining factor. 

In his concurrence, Justice Kennedy holds that "[u]nder the Corps' regulations, wetlands 

are adjacent to tributaries, and thus covered by the [CWA], even if they are 'separated 

from other ''waters of the United States" by man-made dikes or barriers, natural river 

berms, beach dunes, and the like."' ld. at 762 (citing 33 C.F.R. § 328.3(c)). A "significant 

nexus" standard must be applied in order to determine if a connection between a 

nonnavigable water or wetland is significant enough to deem the water or wetland a 

"navigable water" under the CWA. Id. at 767. 

“[T]he 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 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

413

SWANCC, there may be little or no connection. Absent a significant nexus, 

jurisdiction under the Act is lacking.” ld. 

Justice Kennedy's "significant nexus" standard is based upon SWANCC and Riverside 

Bayview is qualified by the term "navigable." The required nexus must be assessed in 

terms of the statute's goal and purposes. Congress enacted the law to "restore and 

maintain the chemical, physical, and biological integrity of the Nation's waters," 33 

U.S.C. § 1251(a), and it pursued that objective by restricting dumping and filling in 

"navigable waters," §§1311(a), 1362(12). With respect to wetlands, the rationale for 

CWA regulation is, as the USACE has recognized, that wetlands can perform critical 

functions related to the integrity of other waters-functions such as pollutant trapping, 

flood control, and runoff storage. 33 C.F.R. § 320.4(b)(2). Accordingly, wetlands possess 

the requisite nexus, and thus come within the statutory phrase "navigable waters," if the 

wetlands, either alone or in combination with similarly situated lands in the region, 

significantly affect the chemical, physical, and biological integrity of other covered 

waters more readily understood as "navigable." When in contrast, wetlands' effects on 

water quality are speculative or insubstantial; they fall outside the zone fairly 

encompassed by the statutory term "navigable waters." Id. at 780. 

Finally, Justice Kennedy stated: 

“When the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, 

it may rely on adjacency to establish its jurisdiction. Absent more specific 

regulations, however, the Corps must establish a significant nexus on a case-bycase 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. 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. 

The "significant nexus" standard expounded by Justice Kennedy in his concurrence in 

Rapanos is what the EPA and USACE rely upon in creating the "other waters" category 

in the proposed rule for the definition of "waters of the United States" under the CWA. 

Rapanos v. US., 547 U.S. 715, 767 (2006). The Associations disagree that the "significant 

nexus" standard is the applicable standard. EPA and US ACE have gone beyond the 

bounds of the "significant nexus" standard with the proposed rulemaking. (p. 17-20)

Agency Response: No Court of Appeals has concluded that the plurality standard 

is the only jurisdictional standard. The rule is consistent with the caselaw. 

Technical Support Document, I.C.

10.434 The EPA and US ACE are proposing to add a new category to the definition of "waters of 

the United States." This "other waters" category will not be jurisdictional as a single 

category, but will instead be jurisdictional if found, on a case-specific basis, to have a 

"significant nexus" to a traditional navigable water, interstate water, or the territorial seas. 

Id. at 22188. These "other waters" will be evaluated either individually or as a group of 

waters when they are determined to be similarly situated in the region. Id. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

414

In creating this "other waters" category, the agencies have provided several key 

definitions for interpreting waters that may become classified as "other waters" under the 

proposed rule. The proposed rule provides that the term "waters of the United States"

means, on a case-specific basis, other waters, including wetlands, provided that those 

waters alone, or in combination with other similarly situated waters, including wetlands, 

located in the same regions, have a significant nexus to traditional navigable water. Id. at 

22263. First, "other waters" will be similarly situated "where they perform similar 

functions and are located sufficiently close together or when they are sufficiently close to 

a jurisdictional water." Id. at 22211 . Whether these "other waters" are aggregated enough 

to be evaluated under a "significant nexus" standard "depends on the functions they 

perform and their spatial arrangement within the 'region' or watershed." Id. These "other 

waters" may be aggregated into a single category if they perform similar functions that 

significantly affect the physical, chemical, or biological integrity of traditional navigable 

waters, interstate waters, or the territorial seas. Id. 9 

Second, "significant nexus" is proposed to be "defined to mean that a water, either alone 

or in combination with other similarly situated waters in the region, significantly affects 

the chemical, physical, or biological integrity of a traditional navigable water, interstate 

water, or the territorial seas." Id. The effect these "other waters" have on traditional 

navigable waters, interstate waters, or the territorial seas may not be speculative or 

insubstantial. Id.

Finally, "region" is defined to be the "watershed that drains to the nearest traditional 

navigable water, interstate water, or the territorial seas." Id. This determination is critical 

in understanding the proposal's aggregation of similarly situated "other waters." With a 

basic understanding of the agencies' proposed "other waters" category, we can now begin 

distinguishing Justice Kennedy's "significant nexus" standard from the standard proposed 

by the EPA and USACE. (p. 20-21)

Agency Response: In response to comment, the agencies have modified the case 

specific provision of the rule and the definition of significant nexus. Preamble, IV.

10.435 In Rapanos v. U.S., Justice Kennedy applied the "significant nexus" standard to a single 

category of water-wetlands. The agencies propose to extend this standard to "other 

waters," including wetlands. Id. at 22211. Examples of "other waters" are not provided, 

as the agencies instead remove a previous clarifying list of "other waters" for the 

adoption of a case-specific analysis approach to all "other waters." Id. at 22212. In his 

Rapanos concurrence, it does not appear that Justice Kennedy intended for the 

"significant nexus" standard to extend to waters other than wetlands. 

Justice Kennedy opines that USACE has shown that wetlands "can perform critical 

functions related to the integrity of other waters-functions such as pollutant trapping, 

flood control, and runoff storage." Rapanos at 779. Because wetlands have been shown to 

perform such critical functions, wetlands: 

“[P]ossess 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. 

When, in contrast, wetlands affect on water quality are speculative or 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

415

insubstantial, they fall outside the zone fairly encompassed by the statutory term 

"navigable waters." Id. at 780. 

The "other waters" category proposed by the agencies does not provide any examples of 

"other waters" and does not support the proposition that these "other waters" can perform 

critical functions such as pollutant trapping, flood control, and runoff storage. Under the 

agencies proposal, all waters that are not already jurisdictional by category are evaluated 

under a "significant nexus" standard even if they have not been shown to perform critical 

functions like those of wetlands. The agencies' reasoned that application of the 

"significant nexus" standard to "other waters" not previously identified to perform critical 

functions 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 toward it . ... " 

Id. at 781. This type of standard is what Justice Kennedy was seeking to avoid, as he 

stated that waters such as drains, ditches, and streams 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 782.Without a showing that the proposed "other waters" category 

can perform critical functions like those performed by wetlands, it would appear that the 

application of the "significant nexus" standard for waters other than wetlands is beyond 

the scope of what Justice Kennedy was proposing in Rapanos. (p. 21-22)

Agency Response: Waters under the case-specific provision of the rule will be 

analyzed consistent with the rule to determine if they have a significant nexus. 

Preamble, IV. The rule is consistent with caselaw. Technical Support Document, 

I.C.

10.436 In Rapanos, Justice Kennedy opines:

“[W]etlands 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". 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 780. 

The agencies propose that "other waters" are similarly situated if those waters: "[P]erform 

similar functions and they are either (1) located sufficiently close together so they can be 

evaluated as a single landscape unit with regard to their effect on the chemical, physical, 

and biological integrity of a traditional navigable water, interstate water, or the territorial 

seas; or (2) located sufficiently close to a "water of the United States" for such an 

evaluation on their effect." ld at 22211. The term "region" is proposed to be the 

"watershed that drains to the nearest traditional navigable water, interstate water, or the 

territorial seas." Id. Thus, "other waters" are similarly situated "when they are within a 

contiguous area of land with relatively homogenous soils, vegetation, and landform." Id. 

"Other waters" that are similarly situated under the proposed rule are required to perform 

similar functions pertaining to habitat, water storage, sediment retention, and pollution 

sequestration. Id. at 22213. 

In light of Justice Kennedy's concurrence in Rapanos and past Supreme Court precedent 

established in SWANCC, this proposal for similarly situated waters in the region appears 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

416

to encompass a much broader spectrum of "adjacent waters" than what Justice Kennedy 

envisioned in his concurrence. Justice Kennedy only mentioned the aggregation of 

similarly situated wetlands. Most wetlands will share functional characteristics to include 

any or all of the following: flow, pollutant trapping, flood control, and run-off storage. 

Because wetlands tend to perform this set of functions, Justice Kennedy felt, from an 

administrative convenience standpoint, that aggregation of similarly situated wetlands 

was appropriate. Under the "other waters" category, one may have many different types 

of waters that perform substantially different functions, yet still share some 

characteristics to others within the region. Classifying all "other waters" within a 

similarly situated region may result in many "other waters" being classified as "waters of 

the United States" when these "other waters" may actually lack the requisite nexus to 

have a chemical, physical, or biological impact on a traditional navigable water, interstate 

water, or the territorial seas. (p. 22)

Agency Response: The definition of significant nexus in the rule includes a 

definition of “similarly situated” and the rule establishes limitations on the waters 

subject to the case-specific provision. Preamble, IV.

10.437 The proposed rule misinterprets the "significant nexus" standard as being satisfied when 

the impact is more than speculative or insubstantial. In the proposed rule, the agencies 

state, "[W]aters with a "significant nexus" must significantly affect the chemical, 

physical, or biological integrity of downstream navigable waters and the requisite nexus 

must be more than speculative or insubstantial." Id. With nothing further stated as to what 

is considered speculative or insubstantial, the proposed rule implies that "other waters" 

satisfy the "significant nexus" standard when "other waters" are determined to not be 

speculative or insubstantial. Justice Kennedy's use of the phrase "speculative and 

insubstantial," is as follows: 

“[W]etlands 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, 

or biological integrity of other covered waters more readily understood as 

"navigable." When, in contrast, wetlands' effect on water quality is speculative or 

insubstantial, they fall outside the zone fairly encompassed by the statutory term 

"navigable waters." Rapanos, 547 U.S. at 780.

Justice Kennedy intended for the standard to be applied to determine if the waters 

significantly affect the chemical, physical, or biological integrity of navigable waters. 

The effect will not be significant if it is speculative or insubstantial. An interpretation of 

the agencies' proposal purports to create "speculative or insubstantial" as the only criteria 

that matters when determining whether the "other waters" have a "significant" nexus to 

traditional navigable waters, interstate waters, or the territorial seas, and does not place 

any weight on the effect the "other waters" have on the chemical, physical, or biological 

integrity of traditional navigable waters, interstate waters, or the territorial seas. (p. 23)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

417

National Cattlemen’s Beef Association (Doc. #8674)

10.438 Additionally, ACCW assert that the agencies cannot rely on the Connectivity report 

because it has not been fully reviewed by the Scientific Advisory Board (SAB). At the 

time of publication in the federal register, the Connectivity report is a draft report, without 

incorporating the suggestions of the SAB panel. It is extremely troublesome that the 

agencies did not allow their own science to inform their rulemaking. It seems like the 

proposed rule was written before EPA’s ORD department even assembled the 

Connectivity report. If that were not the case then the agencies would have waited to 

propose a rule until the SAB review of the report was completed. As it stands, the public 

will not have a meaningful opportunity to comment on a proposed rule that was informed 

by the final Connectivity report. The only logical reason to do this is if the agencies knew 

they would not have a final report that was different from the draft report. This is a brave 

assumption from the agencies, and shows that more likely, the agencies had the proposed 

rule written and then fit the science to meet its proposed rule. ACCW again assert that the 

agencies cannot rely on the draft Connectivity report for the reasons described above to 

support their proposed rule. (p. 15)

Agency Response: The Science Report is a twice peer-reviewed review and 

synthesis of peer-reviewed scientific literature. The rule reflects the agencies’ 

interpretation of “waters of the United States” in light of the goals, objectives, and 

policies of the statute, the Supreme Court case law, the relevant and available 

science, and the agencies’ technical expertise and experience. Preamble, III and 

Technical Support Document, II. 

California Association of Winegrape Growers (Doc. #14593)

10.439 The stated purpose of the CWA is “to restore and maintain the chemical, physical, and 

biological integrity of the Nation’s waters.” (33 U.S.C. § 1251(a)), In countless places, 

however, the Proposed Rule examines these three connective media not as a unity, but 

rather separately and in isolation from one another. In other words, the Proposed Rule 

appears to view the presence of any measurable connection having a bearing on any of 

the three mentioned types of attributes to itself afford sufficient evidence of the requisite 

“connection” to guide Agency policy on Agency jurisdiction under the CWA. (See, e.g., 

79 Fed. Reg. 22213.) While this may be scientifically sound, it may well be legally 

infirm. In particular, for example, if there is only some biological or chemical connection, 

yet no hydrological connection, it would appear difficult to sustain that the requisite 

connection exists, between two separate waters, where there is no actual connection via 

some more or less continuous aqueous medium. Indeed, the SWANCC case would appear 

to stand for precisely this proposition. Addressing this question in his concurring opinion 

in Rapanos, Justice Kennedy requires that wetlands must “significantly affect the 

chemical, physical, and, biological integrity of other covered waters” in order to find a 

nexus. (Rapanos, supra, 547 U.S. 780.) Specifically, Justice Kennedy concluded: The 

required nexus must be assessed in terms of the statute’s goals and purposes. Congress 

enacted the law to “restore and maintain the chemical, physical, and biological integrity 

of the Nation’s waters,” 33 U.S.C. § 1251(a), and it pursued that objective by restricting 

dumping and filling in “navigable waters,” §§ 1311(a), 1362(12). With respect to 

wetlands, the rationale for Clean Water Act regulation is, as the Corps has recognized, 

that wetlands can perform critical functions related to the integrity of other waters--
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

418

functions such as pollutant trapping, flood control, and runoff storage. 33 CFR § 

320.4(b)(2). Accordingly, wetlands possess the requisite nexus, and thus come within the 

statutory phrase “navigable waters,” if the wetlands, either alone or in combination with 

similarly situated lands in the region, significantly affect the chemical, physical, and 

biological integrity of other covered waters more readily understood as “navigable.” 

When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they 

fall outside the zone fairly encompassed by the statutory term “navigable waters.” 

(Rapanos, supra, 547 U.S. 779-80.) 

The Proposed Rule’s examination of separate chemical, biological, and hydrological 

connection, especially in the preamble’s discussion of “other waters,” ignores the 

Supreme Court’s earlier direction in SWANCC, as well as Justice Kennedy’s test for a 

significant nexus in Rapanos. (p. 5-6)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

County of San Diego (Doc. #14782)

10.440 The significant nexus determination should be applied consistent with the language in the 

Rapanos decision and retain the use of "and". The agencies acknowledge in referencing 

Rapanos, Justice Kennedy concluded that wetlands are Waters of the U.S. "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." In the Proposed Rule, the agencies 

propose to apply the "Kennedy standard" when determining significant nexus for 

"adjacent waters" and "other waters." Consistent with the "Kennedy standard," the 

agencies conclude that all "adjacent waters" meet the significant nexus test owing to a 

combination of physical, chemical and biological connections. However, the agencies 

propose to deviate from the Kennedy standard in their approach to "other waters" by 

determining that effects on either the chemical, biological, or physical integrity will be 

sufficient to establish significant nexus. In the agencies proposed rule, the word "and" 

from Justice Kennedy's quote was swapped with the word "or," which clearly has a 

drastically different meaning. By using the word "and,” the significant nexus standard is 

held to a higher and more realistic threshold of needing to show three types of affects to 

the integrity of the downstream navigable water. On the other hand, using the word "or'' 

greatly diminishes the need for a clear influence as it only requires one of the three 

affects to occur. The County requests that the new rule be revised to define interpretation 

of the significant nexus standard consistent with Justice Kennedy's opinion, including use 

of the word "and" when referring to the effect on the chemical, physical, and biological 

integrity.

EXAMPLE: If the rule is determined using chemical, physical, or biological integrity as 

the threshold, the scope of potential Waters of the U.S. could be much broader. A 

biological connection could be determined for areas where birds perch temporarily during 

migrations, or seeds are dispersed along a momentary flow. This could cause puddles, 

potholes, and small ponds to be considered significant by determination. By remaining 

consistent with Kennedy's interpretation of chemical, physical, and biological integrity, a 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

419

more defined focus of what is considered significant could be identified, addressed, and 

managed. (p. 9)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Ingram Barge Company (Doc. #14796)

10.441 Additionally, the Proposed Rule includes within the scope of CWA jurisdiction "all 

waters, including wetlands, adjacent to a traditional navigable water, interstate water, the 

territorial seas, or impoundment." 793 By declaring all adjacent waters-not simply adjacent 

wetlands, as the current rule and past guidance do—categorically jurisdictional, the 

Proposed Rule sweeps in many waters not previously subject to federal regulation, which 

impermissibly expands jurisdiction. Also, by including "neighboring" waters, the 

Proposed Rule creates lack of clarity as to its overbroad coverage, as it includes "waters 

located within the riparian area or floodplain of a [jurisdictional water], or waters with a 

shallow subsurface hydrologic connection to such a jurisdictional water." 794 Thus, the 

Proposed Rule impermissibly relies on groundwater to establish jurisdiction, which it 

additionally notes it cannot regulate, as regulating groundwater is beyond the authority of 

the Agencies. Furthermore, the Proposed Rule classifies tributaries as jurisdictional, 

impermissibly finding that all tributaries have a significant nexus to jurisdictional waters. 

The Proposed Rule does exclude two types of ditches from CWA jurisdiction; 795 ditches 

that do not meet the criteria for exclusion could be considered waters of the United 

States, which by the narrowness of the exclusions shows how expansively the Proposed 

Rule can be applied. Therefore, the Proposed Rule is too broad and over-expansive in its 

coverage, and it impermissibly expands the proper scope of the Agencies' authority as 

provided by the CWA and subsequently clarified by the courts. 12 79 Fed. Reg. at 

22,263. 13 Rapanos, 541 U.S. at 778-79 ("[T]he word 'navigable' in 'navigable waters' 

[must] be given some importance [and] some effect."). (p. 14)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

National Wildlife Federation (Doc. #15020)

10.442 The Final Rule should define categories of non-adjacent waters as “waters of the United 

States” where the scientific evidence of connectivity satisfies Justice Kennedy’s 

Significant Nexus Test.

The proposed rule significantly limits the scope of jurisdictional “other waters,” is far 

more restrictive than the limits set by the Supreme Court, ignores the scientific evidence 

of connectivity, and runs counter to the goals of the Clean Water Act. As the agencies 

recognize, the “other waters,” (a)(3) provision of the regulations remains in effect. The 

SWANCC decision specifically addressed only the presence of migratory birds as a basis 

for asserting jurisdiction, and not the validity of the (a)(3) provisions generally.796 It is 

 

793 79 Fed. Reg. at 22,198.

794 Id.

795 79 Fed. Reg. at 22,263

796 See discussion of SWANCC, supra, at Section II
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

420

simply incorrect to assert the SWANCC Court held that any category of waters, other than 

the specific ponds at issue in the case, was outside of the government’s Clean Water Act 

jurisdiction. The SWANCC Court merely held the Corps could not assert jurisdiction over 

waters based solely on the migratory bird test. The Court did not hold isolated waters 

could not be regulated under the Clean Water Act when there are other bases for 

jurisdiction. 

We agree with the agencies’ basic premises that “current regulations assert jurisdiction 

more broadly,” than the proposed rule, and that the Supreme Court decisions in SWANCC

and Rapanos placed limits on the scope of “other waters” that may be determined to be 

jurisdictional.79 Fed. Reg. at 22212. As the agencies note, Justice Kennedy explained the 

Court’s SWANCC decision, and the limits on the scope of “other waters” it articulated, as 

follows: “In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 

Engineers, 531 U.S. 159 (2001) (SWANCC), the Court held, under the circumstances 

presented there, that to constitute ‘navigable waters’ under the Act, a water or wetland 

must possess a ‘significant nexus’ to waters that are or were navigable in fact or that 

could reasonably be so made.” Id. citing 547 U.S. at 759. 

The agencies properly read SWANCC and Justice Kennedy’s concurring opinion in 

Rapanos as supporting the application of Kennedy’s significant nexus standard to the 

“other waters” included in the agencies’ long-standing definition of “waters of the U.S.” 

and at issue in SWANCC.

797 Justice Kennedy, in his concurring opinion in Rapanos, 

stressed that hydrologically separated waters can collectively filter pollutants, prevent or 

reduce flooding and perform many other functions that may establish a “significant 

nexus” to other waters covered by the Act.798 It follows from Justice Kennedy’s Rapanos

concurrence, when read in conjunction with the Court’s SWANCC decision, that Justice 

Kennedy would not dismiss protection of so-called isolated waters out-of-hand, but at the 

least protect those that have a significant nexus to TNWs and IWs.

We agree that if an “other water” is demonstrated to have a significant nexus to a TNW 

or IW, then it also (easily) satisfies the current regulatory requirement that the water is 

one “the use, degradation or destruction of which could affect interstate or foreign 

commerce.”799

However, the agencies’ proposal to require case-specific significant nexus determinations 

for all “other waters” goes far beyond the limits set by SWANCC and Rapanos, and 

ignores the scientific evidence in the record. 79 Fed. Reg. at 22212. This case-specific 

requirement for all “other waters” effectively creates a seriously flawed regulatory 

 

797 33 C.F.R. § 328.3(a)(3); 40 C.F.R. § 230.3(s)(3); see also 40 C.F.R. § 122.2 (“waters of the U.S.” (c)).

798 See discussion of SWANCC, supra, at Section II.; Rapanos, supra, at 547 U.S. at 786. 

799 See e.g., Kennedy concurring opinion at 547 U.S. 782 quoting Oklahoma ex rel Phillips v. Guy F. Atkinson Co., 

313 U.S. 508, 524-525 (1941)(“[T]he exercise of the granted power of Congress to regulate interstate commerce 

may be aided by appropriate and needful control of activities and agencies which, though intrastate, affect that 

commerce”). Justice Kennedy also indicates that regulation of waters having significant nexus are well within the 

Congress’s authority and waters that meet the significant nexus test avoid any federalism or constitutional concerns: 

In SWANCC, by interpreting the Act to require a significant nexus with navigable waters, the Court avoided 

applications-those involving waters without a significant nexus-that appeared likely, as a category, to raise 

constitutional difficulties and federalism concerns. Rapanos, 547 U.S. at 776.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

421

presumption that all “other waters” lack a significant nexus with TNWs, IWs, and 

territorial seas, and have no influence on the integrity of these waters. This presumption 

ignores the scientific evidence of connectivity that is in the rulemaking record. 

For example, the SAB’s review of the proposed rule finds:

There is also adequate scientific evidence to support a determination that certain 

subcategories and types of ‘other waters’ in particular regions of the United States 

(e.g., Carolina and Delmarva Bays, Texas coastal prairie wetlands, prairie 

potholes, pocosins, western vernal pools) are similarly situated (i.e., they have a 

similar influence on the physical, biological, and chemical integrity of 

downstream waters and are similarly situated on the landscape) and thus could be 

considered waters of the United States. Furthermore, as the science continues to 

develop, other sets of wetlands may be identified as ‘similarly situated.’ SAB 

Rule Letter at 3. (p. 55-56)

Agency Response: The agencies disagree that the case-specific analysis provision 

creates a presumption that waters that fit within the provision lack a significant 

nexus; such waters that are determined to have a significant nexus are 

jurisdictional. The agencies have concluded that the five specified waters are 

similarly situated. Preamble, IV.

Environmental Defense Fund (Doc. #15352)

10.443 The final rule must protect all intrastate waters that have a significant nexus to navigable 

waters to achieve the goals of the CWA.800 The objective of the CWA is to “restore and 

maintain the chemical, physical and biological integrity of the Nation’s waters.”801 This 

cannot be achieved if the CWA fails to protect upstream waters that have a significant 

nexus to downstream navigable waters. In holding that intrastate adjacent wetlands are 

protected by the CWA, the Supreme Court observed “Congress recognized” that 

“[p]rotection of aquatic ecosystems” required “broad federal authority to control 

pollution for ‘[w]ater moves in hydrologic cycles and it is essential that the discharge of 

pollutants be controlled at the source.’802

In SWANCC, the Supreme Court reversed the “Migratory Bird Rule” as a test of which 

intrastate waters could be protected by the CWA. The Court observed that, in Riverside, 

it had upheld the agencies’ authority to protect intrastate, adjacent wetlands because 

“Congress’ concern for the protection of water quality and aquatic ecosystems indicated 

its intent to regulate ‘wetlands inseparably bound up’ with the ‘waters of the United 

States’” and because “the significant nexus between the wetlands and ‘navigable waters’” 

influenced the Court’s interpretation of the Clean Water Act.803 In Rapanos, Justice 

 

800 The proposed rule does not, and should not, change the long-standing protection of navigable waters which 

include traditionally navigable waters (33 CFR 328.3(a)(1)), interstate waters (33 CFR 328.3(a)(2)), and the 

territorial seas (33 CFR 328.3(a)(3)). Accordingly, EDF does not address the regulation of these (a)(1)-(3) waters in 

our comments, but we fully support their continued protection

801 33 U.S.C. 1251(a).

802 United States v. Riverside Bayview Homes, 474 U.S. 121, 133 (1985) (citing S.Rep No. 92-414, p.77 (1972), U.S. 

Code Cong. & Admin. News 1972, pp. 3668, 3742.

803 531 U.S. at 167.
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422

Kennedy noted that “to constitute ‘navigable waters’ under the Act, a water or wetland 

must possess a ‘significant nexus’ to waters that are or were navigable in fact or that 

could reasonably be so made.”804A four-justice plurality agreed that the CWA extends 

beyond traditional concepts of navigable waters, but relied upon whether these waters 

were “relatively permanent, standing or continuously flowing bodies of water” connected 

to navigable waters and wetlands with “a continuous surface connection” to navigable 

waters.805 However, they clarified that “relatively permanent” waters could include, for 

example, “seasonal rivers.”806In the wake of these decisions, the U.S. Courts of Appeals 

have either relied solely upon Justice Kennedy’s significant nexus test or upon this test 

plus the four justice plurality test. None have relied only on the plurality test.

The agencies employed a sound reading of the case law in restoring CWA protection to 

those intrastate waters that have a significant nexus to navigable waters. The agencies 

reasonably define “significant nexus” as a water, including wetlands, that, alone or in 

combination with other similarly situated waters in the watershed that drains to the 

nearest navigable water, significantly affects the chemical, physical or biological integrity 

of the navigable water. For an effect to be significant, it must be “more than speculative 

or insubstantial.”807 This exactly comports with J. Kennedy’s language in Rapanos.

808

The agencies rely upon strong evidence of connectivity impacting the chemical, physical 

and/or biological integrity of navigable waters.809 This clearly extends beyond a finding 

of mere physical connection. The agencies have grounded protection of adjacent 

intrastate waters and tributaries—including seasonal, headwater streams and wetlands—

on extensive, peer reviewed, scientific documentation of chemical, physical and 

biological connections between these waters and navigable waters.810 (p. 3-4)

Agency Response: The rule provides for case-specific determinations under more 

narrowly targeted circumstances based on the agencies’ assessment of the 

importance of certain specified waters to the chemical, physical, or biological

integrity of traditional navigable waters, interstate waters, and the territorial seas. 

Preamble, IV. The agencies agree the rule is consistent with the caselaw and 

grounded in the science.

Waterkeeper Alliance, et al. (Doc. #16413)

10.444 EPA does not have the authority to exempt waters of the United States from coverage 

under the Clean Water Act. The waste treatment system exemption is in direct conflict 

with the CWA and fails Step One and Step Two of the Chevron test. The plain language 

of the proposed waste treatment system exclusion is that a waste treatment system 

 

804 547 U.S. at 759.

805 Id. at 742.

806 Id. at 732 n.5 

807 Id. at 780.

808 Id. at 779 (“The required nexus must be assessed in terms of the statute’s goals and purposes. Congress enacted 

the law to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”); 780 (“if the 

wetlands, either alone or in combination with other similarly situated [wetlands] in the region, significantly affect 

the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”)

809 17 See e.g., 79 Fed. Reg. 22195-22198, 22201-22217, 22222-22252 (Appendix A).

810 Id. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

423

designed to meet the requirements of the Clean Water Act is not a water of the United 

States even if it is created by impounding waters of the United States.811 The proposed 

regulation states that “notwithstanding whether they meet the terms of paragraphs (a)(1) 

through (a)(3) of this definition,” “[w]aste treatment systems, including treatment ponds 

or lagoons, designed to meet the requirements of the Clean Water Act.”812 Without the 

second part of the waste treatment system definition—“This exclusion applies only to 

manmade bodies of water which neither were originally created in waters of the United 

States (such as a disposal area in wetlands) nor resulted from the impoundment of waters 

of the United States.” – the broad exclusion for waste treatment systems from CWA 

jurisdiction is directly contrary to the CWA and decades of law holding that once a body 

of water is a waters of the United States, it is always a waters of the United States.

While “waters of the United States” itself may be an ambiguous term that EPA is charged 

with promulgating regulations to define, it is clear from legislative history and decades of 

case law that Congress did not intend for EPA to allow our nation’s rivers, streams, and 

lakes to be used as private sewers for the utility industry and other polluters. Under 

Chevron v. Natural Res. Def. Council, courts examine “the intent of Congress” in 

creating the statue.813 If the intent is clear, a court “gives effect to the unambiguously 

expressed intent of Congress.”814 If, however, the statute is ambiguous, a court will defer 

to an agency’s interpretation of the statute if it is a “permissible construction.”815

Here, senate reports speak directly to this issue and the general common law rule prior to 

the enactment of the CWA was that a body of water forever remains a waters of the 

United States once it has been identified as a waters of the United States.816 Thus, the 

waste treatment system exclusion fails Step One.

There is no doubt that Congress intended the broadest possible reach of the CWA. The 

original conferees stated that “the term ‘navigable waters’ be given the broadest possible 

constitutional interpretation unencumbered by agency determinations which have been 

made or may be made for administrative purposes.”817 The Senate Committee on Public 

Works, in approving the Federal Water Pollution Control Act Amendments of 1971 

explicitly found that “[t]he use of any river, lake, stream or ocean as a waste treatment

system is unacceptable.”818 Several years later, another Senate Report stated that the 

CWA “stipulated that the Nation’s fresh and marine waters would not be an element of 

the waste treatment process. That continues to be national policy.”819 There appear to be 

no contrary statements in the legislative history. 

 

811 See 79 Fed. Reg. at 22,268.

812 Id.

813 467 U.S. 837, 842 (1984).

814 Id. at 842--‐ 43.

815 Id. at 843.

816 See, e.g., United States v. Appalachian Elec. Power Co., 311 U.S. 377, 408 (1940) (“When once found to be 

navigable, a waterway remains so.”).

817 S. Rep. No. 92--‐ 1236, at 45 (1972) (Conf. Rep.), reprinted in 1972 U.S.C.C.A.N. 3776, 3822.

818 S. Rep. No. 92--‐ 414, at 7 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3674.

819 S. Rep. No. 95--‐ 370, at 4 (1977) reprinted in 1977 U.S.C.C.A.N. 4326, 4330.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

424

In addition to legislative history that makes clear that the waste treatment system 

exclusion is contrary to Congressional intent, it is settled law that once a body of water is 

found to be waters of the United States, it always remains waters of the United States.820

While some of these decisions examined the term “navigable waters” as opposed to 

“waters of the United States,” the Clean Water Act defines “navigable waters” as “the 

waters of the United States . . . .”821 “[W]here Congress borrows terms of art in which are 

accumulated the legal tradition and meaning of centuries of practice, it presumably 

knows and adopts the cluster of ideas that were attached to each borrowed word in the 

body of learning from which it was taken and the meaning its use will convey to the 

judicial mind unless otherwise instructed. In such case, absence of contrary direction may 

be taken as satisfaction with widely accepted definitions, not as a departure from 

them.’”822

In this case, there is no evidence Congress intended to depart from well settled law to 

allow EPA to remove bodies of water that fall squarely within the definition of “waters of 

the United States” from the reach of the CWA, especially where those “waters of the

United States” are impounded to create a private dump for a utility or other industrial 

operation.823 Further, it is difficult to justify a claim that navigable waters retain a 

protected status forever, while waters of the United States – by definition also “navigable 

waters” – can be excluded from protection when they are impounded for the purposes of 

creating a dump.824 (p. 68-71)

Agency Response: The existing regulations contain the waste treatment system 

exclusion provision and EPA did not seek comment on this provision.

10.445 Even if a court did find that the issue is ambiguous, EPA’s charge to define “waters of the 

United States” is not without bounds. EPA’s definition of “waters of the United States” is 

permissible so long as it is not “arbitrary, capricious, or manifestly contrary to the 

statute.”825 In this case, the broad waste treatment system exclusion is directly contrary to 

the statute, and is arbitrary and capricious because the legislative history and decades of 

common law make clear that EPA cannot carve out “waters of the United States” from 

the scope of the CWA to create waste disposal sites, which is precisely what the waste 

treatment system exclusion does.826

EPA has asserted that the waste treatment system exemption is not really as broad as the 

plain language suggests because it interprets the regulation to exclude only older waste 

 

820 See Scott Snyder, Note, The Waste Treatment Exclusion and the Dubious Legal Foundation for the EPA’s 

Definition of “Waters of the United States”, 21 N.Y.U. Envtl. L.J. 504, 522--‐ 23 (2014) (providing overview of 

federal cases prior to the enactment of the Clean Water Act holding that once a body of water has been classified as 

a waters of the U.S., it remains a waters of the U.S. forever).

821 33 U.S.C. § 1362(7).

822 Carter v. United States, 530 U.S. 255, 264 (2000) (quoting Morissette v. United States, 342 U.S. 246, 263 (1952); 

See also Scott Snyder, Note, The Waste Treatment Exclusion and the Dubious Legal Foundation for the EPA’s 

Definition of “Waters of the United States”, 21 N.Y.U. Envtl. L.J. 504, 523, 523 n. 95 (2014).

823 Id. at 523

824 Id. at 522--‐ 23.

825 Chevron v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984).

826 See discussion infra.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

425

treatment systems constructed from waters of the United States. Generally, an agency’s 

interpretation of its own regulations is subject to judicial deference unless it is “plainly 

erroneous or inconsistent with the regulation.”827 In this case, the agency’s interpretation 

conflicts with the plain language of the regulation, and EPA has also advanced a second 

interpretation that does exclude newly created waste treatment systems in some 

circumstances. 

When it first finalized the waste treatment system definition in 1980, EPA stated that 

Congress did not intend for the CWA to exempt waste treatment systems created by 

impounding waters of the United States.828 Specifically, EPA said: 

“[b]ecause CWA was not intended to license dischargers to freely use waters of 

the United States as waste treatment systems, the definition makes clear that 

treatment systems created in those waters or from their impoundment remain 

waters of the United States. Manmade waste treatment systems are not waters of 

the United States, however, solely because they are created by industries engaged 

in, or affecting interstate or foreign commerce.”

829

Even when the agency suspended the final sentence of the regulation, it reiterated its 

purposes, noting that “[t]he Agency’s purpose in the new last sentence was to ensure that 

dischargers did not escape treatment requirement by impounding waters of the United 

States and claiming the impoundment was a waste treatment system, or by discharging 

wastes into wetlands.”830

After promulgating a rule that reflected the intent of Congress that our nation’s rivers, 

lakes, and streams not be used as private dumps and then backtracking, EPA came up 

with a new spin on how to treat coal ash and other industrial impoundments instead of 

following through on its promise to revisit the suspension. In a 1986 memorandum, EPA 

stated that it evaluates what is an exempt waste treatment system on a case‐by-case basis, 

treating “newly created impoundments of waters of the U.S. as ‘waters of the U.S.,’ not 

as ‘waste treatment systems designed to meet the requirements of the CWA,’ whereas 

impoundments of ‘waters of the U.S.’ that have existed for many years and had been 

issued NPDES permits for discharges from such impoundments as ‘wastewater treatment 

systems designed to meet the requirements of the CWA’ and therefore are not ‘waters of 

the U.S.”831 EPA states that, in fact, it suspended the last sentence of the waste treatment 

 

827 Auer v. Robbins, 519 U.S. 452, 461 (1997).

828 45 Fed. Reg. at 33,298

829 Id.

830 45 Fed. Reg. at 48,620.

831 Memo from Marcia Williams, EPA Office of Solid Waste Director, to James H. Scarborough, EPA Region IV 

Residuals Management Branch Chief, at 7 (Apr. 2, 1986).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

426

system in order to allow for such case‐by‐case decisions.832 EPA has echoed the

interpretation articulated in the 1986 memorandum in various scenarios.833

The fact of the matter is that the proposed waste treatment exemption does not include 

any language limiting the exclusion to treatment systems created by impounding waters 

of the United States, that have been in existence “for many years” or for any other time 

period. Further, it is illogical—and courts have held as much—to suggest that a waste 

impoundment created prior to the CWA has been designed to meet the requirements of 

the CWA.834 In any event, the plain language of the proposed regulation arguably 

exempts all waste treatment systems designed to meet the requirements of the CWA 

created by impounding waters of the United States regardless of when the treatment 

systems are constructed.835

In fact, EPA and the Corps have attempted to reverse this interpretation in recent years to 

exclude newly created waste treatment systems from “waters of the United States.” See, 

e.g., Jon Devine et al., The Intended Scope of the Clean Water Act, 41 Envtl. L. Rep. 

News & Analysis 11,118, 11,125 (2011) (noting that the agencies have advanced this 

broader interpretation in a 1998 Federal Register notice, a 2000 guidance document, and 

by the Corps in recent litigation. “Under the agencies’ revised interpretation, a new 

impoundment of waters of the United States is able to qualify for the waste treatment 

system exclusion if it is covered by a § 404 permit; that way, the system is ‘designed to 

meet the requirements of the Act,’ as required by the regulation.”836

EPA’s interpretation of the regulation does not make the proposed waste treatment 

system exemption a permissible construction of the CWA. EPA’s interpretation is 

inconsistent with the language of the regulation itself, and EPA has advanced a broader

interpretation that does exclude newly created impoundments. For all these reasons, the 

waste treatment system exclusion is illegal and fails Step One and Step Two of the 

Chevron test. 

For all of the reasons set forth above, the Commenters strongly urge EPA and the Corps 

to eliminate the exclusion or publish a revised definition of waste treatment system that 

complies with the CWA. At a minimum, EPA must provide full notice and comment 

rulemaking for the proposed waste treatment system exclusion. (p. 71-74)

 

832 Id. (noting that EPA suspended the sentence in order to “restor[e] the ambiguity of the earlier regulations, so that 

each case must be decided on its own facts”). This is, of course, contrary to the purpose EPA provided when it 

suspended the sentence. 45 Fed. Reg. at 48,620 (noting that EPA would re-examine the waste treatment system 

definition and “promptly . . . develop a revised definition and to publish it as a proposed rule for public comment”).

833 Jon Devine et al., The Intended Scope of Clean Water Act Jurisdiction, 41 Envtl. L. Rep. News & Analysis 

11,118, 11,125 (2011) (citing Letter from Lisa P. Jackson, Administrator, EPA, to Rep. James L. Oberstar at 1 (Apr. 

30, 2010)). EPA has taken the same position in litigation. See W. Va. Coal Ass’n v. Reilly, 728 F. Supp. 1276, 1289-

-‐ 90 (S.D. W. Va. 1989), aff’d, 932 F.2d 964 (4th Cir. 1991).

834 See, e.g., California Sportfishing Prot. Alliance v. Cal. Ammonia Co., 2007 WL 273847, *6 (E.D. Cal 2007) 

(noting that the fact that a waste treatment impoundment is created prior to the Clean Water Act is evidence that it is 

not “designed to meet the requirements of the Clean Water Act”).

835 79 Fed. Reg. at 22,268.

836 Id. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

427

Agency Response: These comments are beyond the scope of the rule; the agencies 

did not seek comment on the existing provision for waste treatment system 

exclusions.

Sierra Club, Cumberland Chapter (Doc. # 15466)

10.446 1. The proposed rulemaking will help harmonize existing regulatory definitions with the 

mandate of Justice Kennedy in the US Supreme Court plurality decision in Rapanos v 

United States, 547 U.S. 715 (2006). We would prefer a broader definition more 

consistent with EPA and Corps practice from 1972 through the unanimous opinion of the 

Supreme Court in United States v Riverside Bayview Homes, 474 U.S. 121 (1985). 

Unfortunately, that broad definition which Bayview held to be Congressional intent, was 

reduced with Supreme court opinion in SWANCC v U.S. Army Corps of Engineers, 531 

U.S. 159 (2001). Rapanos added more uncertainty, making this Proposed Rule necessary.

Contrary to the myths propounded by the American Farm Bureau Federation and others, 

the WOTUS rule is not regulatory overreach – it is a regulatory change to be consistent 

with the “significant nexus” requirement discussed by Justice Kennedy.

These Supreme Court decisions created new uncertainty within the agencies, the 

regulated community, and the environmental community concerning what waters the 

Clean Water Act covers and what waters it does not. Current practice involves a time 

consuming investigation to determine the “connectivity” between headwaters and 

wetlands and downstream navigable rivers. EPA and the Corps determined that it was 

better use of resources to assemble the scientific studies on “connectivity” and use those 

studies to add additional definition to WOTUS. In essence, the proposed rule will define 

all water bodies, including wetlands that are located in a floodplain or a riparian area as 

“waters of the US” without further proof. Upland water bodies, called “other waters” 

outside the floodplain or riparian area, will still receive the “case-by-case” investigation 

to establish a “significant nexus” in order to receive Clean Water Act protection. (p. 2)

Agency Response: The agencies agree the rule will provide needed clarity and is 

consistent with the caselaw. Technical Support Document, I.C.

Coalition of Alabama Waterways (Doc. #15101)

10.447 The agencies assert jurisdiction too broadly over “adjacent” waters. The Proposed Rule 

includes within the scope of CWA jurisdiction “all waters, including wetlands, adjacent 

to a traditional navigable water, interstate water, the territorial seas, or impoundment.”837

By declaring all adjacent waters—not simply adjacent wetlands, as the current rule and 

past guidance do—categorically jurisdictional, the Proposed Rule sweeps in many waters 

not previously subject to federal regulation, which is contrary to the agencies’ assertion 

that the proposal does not expand jurisdiction. Furthermore, the definition of “adjacent” 

is overly broad, impermissibly relying on groundwater connections to capture 

“neighboring” waters that are not actually adjacent and otherwise would not fall within 

CWA jurisdiction. 

 

837 79 Fed. Reg. at 22, 198.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

428

The agencies propose to consider adjacent waters jurisdictional because the agencies find 

that they, categorically, have a significant nexus to jurisdictional waters. However, the 

agencies’ scientific support for this finding is not yet final, and the agencies wrote the 

language without waiting for the outcome of the SAB review.838 Thus the flawed bases of 

the Proposed Rule’s impermissible expansion of CWA jurisdiction include not only the 

agencies’ faulty construction of the significant nexus text, but also incomplete science 

and analysis. 

Further, the Proposed Rule broadens the definition of “adjacent” to include waters that 

are not actually adjacent within the customary meaning of the word but rather are merely 

“neighboring,” as defined. The result is not only overbroad, it is also unclear. The 

agencies propose to define “adjacent” as “bordering, contiguous or neighboring,” and to

cover “[w]aters, including wetlands, separated from other waters of the United States by 

man-made dikes or barriers, natural river berms, beach dunes, and the like” as “adjacent 

waters.”839 The term “neighboring” is defined for purposes of the term “adjacent” and 

with respect to “riparian area” and “floodplain,” each of which would also be a defined 

term itself: “Neighboring” includes “waters located within the riparian area or floodplain 

of a [jurisdictional water], or waters with a shallow subsurface hydrologic connection to

such a jurisdictional water.”840

The terms “riparian area” and “floodplain” further define “neighboring” for purposes of 

the term “adjacent.” “Floodplain” would be defined as “an area bordering inland or 

coastal waters that was formed by sediment deposition from such water under present 

climatic conditions and is inundated during periods of moderate to high water flows.”841

The definition of “riparian area” is especially troublesome for its breadth and ambiguity: 

“The term riparian area means an area bordering a water where surface or 

subsurface hydrology directly influence the ecological processes and plant and 

animal community structure in that area. Riparian areas are transitional areas 

between aquatic and terrestrial ecosystems that influence the exchange of energy 

and materials between those ecosystems.”

842

The concept of “influenc[ing]” the ecosystem in the “area” bordering a water—by 

“surface or subsurface hydrology,” no less—is an amorphous and potentially farreaching 

standard. It is also an unworkable one likely to make case-specific determinations 

complicated, prolonged, and burdensome.

The Proposed Rule impermissibly relies on groundwater to establish jurisdiction, given 

that “[t]he agencies have never interpreted ‘waters of the United States’ to include 

groundwater and the proposed rule explicitly excludes groundwater...”

843 It is not 

possible to rely on groundwater to establish jurisdiction without regulating the 

groundwater itself, which the agencies seem to acknowledge being beyond their 

 

838 See, e.g., 79 Fed. Reg. at 21,196

839 Id. at 22,263

840 Id.

841 Id.

842 Id.

843 Id. at 22,218
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

429

authority. For example, suppose an activity with a discharge directly affecting only an 

area of shallow groundwater that provides some discernible hydrologic connection 

between a small upstream water and a jurisdictional area downstream. Under the 

Proposed Rule, the upstream water also must be jurisdictional. Is it the agencies’ position 

that it is without power to regulate the groundwater between the two putatively 

jurisdictional areas? If so, then the area constitutes a separation that is analogous to the 

isolation of the ponds at issue in SWANCC. If the agencies believe they can regulate that 

area directly under the CWA, then they should so state in a straightforward manner (and 

be prepared to defend that position in the courts). 

Contrary to the customary meaning of “adjacent” (“not distant,” “nearby,” or “having a 

common endpoint or border”844), under the agencies’ broadened interpretation, waters 

located a considerable distance from a tributary or other jurisdictional water may be 

considered adjacent waters. Again, Justice Kennedy identified that exact scenario as 

raising a problem for CWA jurisdiction. And far from making the identification of 

jurisdictional waters “less complicated and more efficient,” the Proposed Rule creates 

greater confusion and will inevitably lead to more protracted litigation (p. 8-10)

Agency Response: The rule’s definition of “adjacent waters” does not rely on 

groundwater connections. Preamble, IV. The agencies considered functional 

relationships and proximity in making significant nexus determinations in support 

of the rule. Preamble, III.

Center for Environmental Law and Policy (Doc. #15431)

10.448 EPA fails to take into consideration the special import of CWA citizen suits that have 

worked to unsettle what is considered settled agency interpretation. Under section 505 of 

the CWA, any citizen may bring suit against those who violate a CWA effluent standard 

or limitation, or a state or EPA order. Section 505 also allows for suit against the EPA 

Administrator for failing perform a nondiscretionary duty or act.845 The citizen suit 

provision in the Clean Water Act is far-reaching and works in conjunction with federal 

regulatory efforts to fully effectuate congressional goals. “[I]f the Federal, State, and 

local agencies fail to exercise their enforcement responsibility, the public is provided the 

right to seek vigorous enforcement action [under the CWA].”846 Thus, the citizen suit 

provision supplements agency action.847 Citizen suits often unsettle what is considered 

settled agency interpretation. Citizen suits allow outside technical expertise and local 

knowledge to be integrated into CWA’s regulatory structure through citizen suits.848 As 

one court held: “The presence of the citizen suit provision [in the CWA] demonstrates 

 

844 Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/adjacent. 

845 33 U.S.C. § 1365(a).

846846 S. Rep. No. 92-414, at 64 (1972).

847 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 60 (1987); see also Calvert Cliffs’

Coordinating Comm. v. Atomic Energy Comm’n, 449 F.2d 1109, 1111 (D.C. Cir. 1971) (finding that citizen suits 

ensure the “important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast 

hallways of the federal bureaucracy.”).

848 See Henry N. Bulter & Jonathan R. Macey, Using Federalism to Improve Environmental Policy 27 (1996) 

(“Federal regulators never have been and never will be able to acquire and assimilate the enormous amount of 

information necessary to make optimal regulatory judgments that reflect the technical requirements of particular 

locations and pollution sources.”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

430

that Congress believed courts were competent to make fact-sensitive determinations over 

whether a particular discharge requires a permit.”849 It is been largely through citizen 

suits that have groundwater has been found to fall under the purview of the CWA.850 

EPA should not overlook the successful efforts made by private litigants to advance to 

inclusion of groundwater in the CWA.

The legislative history of the CWA indicates Congressional intent for jurisdiction under 

the Act to extend to the constitutional limit of the Commerce Clause. The legislative

history of the CWA indicates that Congress intended jurisdiction under the Act to extend 

to the maximum extent possible under the Commerce Clause. Two separate references in 

the legislative history demonstrate this intention. The first reference appears in a Senate 

Report that recognized a desire to move away from the more restrictive definition of 

“navigable waters.”851 The Senate Report recognized that “water moves in hydrologic 

cycles,” and in order to control pollution the definition of waters must be extended to 

include pollutants entering “navigable waters, portions thereof, and their tributaries.”852 

The second reference arose in a Conference Report that advocated that the term 

“navigable waters” be given the “the broadest possible constitutional interpretation 

unencumbered by agency determinations which have been made or may be made for 

administrative purposes.”853 Some federal courts that have considered the legislative 

history of the CWA have interpreted Congress’s rejection of the so-called “Aspin 

Amendment” to indicate Congressional refusal to bring groundwater within the purview 

of the Act.854 However, other Federal Courts considering the issue have disagreed with 

this interpretation.855 The proposed amendment would have included the phrase “any 

pollutant to ground waters, from any point source” within the definition of “discharge of 

a pollutant.”856 By rejecting the amendment and choosing not to extend CWA protection 

to all groundwater, including isolated groundwater, it does not follow that Congress 

intended to exclude all groundwater from CWA jurisdiction. Crucially, the proposed 

amendment would also have eliminated an exemption for oil and gas related well 

injections into groundwater.857 This portion of the amendment was highly divisive and 

 

849 Hawai’i Wildlife Fund v. County of Maui, CIV. 12-00198 SOM/BM, 2014 WL 2451565, at *8 (D. Haw. May 30,

2014).

850 See infra III.B.2.

851 2 Envtl. L. (West) § 4:12 (citing Comm. on Public Works, Federal Water Pollution Control Act Amendments of 

1971, S.Rep. No. 414, 92d Cong., 1st Sess. 77 (1971), in 2 Leg. Hist. at 1495). 

852 2 Envtl. L. (West) § 4:12 (citing Comm. on Public Works, Federal Water Pollution Control Act Amendments of 

1971, S.Rep. No. 414, 92d Cong., 1st Sess. 77 (1971), in 2 Leg. Hist. at 1495). 

853 Id. (citing Comm. of Conference, Federal Water Pollution Control Act Amendments of 1972, S.Rep. No. 1236, 

92d Cong., 2d Sess. 144 (1972) in 3 Legis. Hist. at 327).

854 See Exxon Corp. v. Train, 554 F.2d 1310, 1327 (5th Cir. 1977); Vill. of Oconomowoc Lake v. Dayton Hudson

Corp., 24 F.3d 962, 965 (7th Cir. 1994); Umatilla Waterquality Protective Ass'n, Inc. v. Smith Frozen Foods, Inc., 

962 F. Supp. 1312, 1318 (D. Or. 1997); Patterson Farm, Inc. v. City of Britton, S.D., 1998 DSD 34, 22 F. Supp. 2d 

1085, 1091 (D.S.D. 1998).

855 See infra III.B.2.

856 Wood, Mary Christina, Regulating Discharges into Groundwater: The Crucial Link in Pollution Control Under 

the Clean Water Act, 12 Harv. Envtl. L. Rev. 569, 613 (1988) (citing Legislative History of the Water Pollution 

Control Act Amendments of 1972 (Comm. Print. 1973) at 589).

857 Wood, at 613-14.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

431

likely led to its rejection.858 As the Supreme Court has noted, “a bill can be proposed or 

rejected for any number of reasons.”859 The rejection of the Aspin Amendment does not 

decisively indicate a Congressional intent to exclude groundwater from the CWA. The 

agencies have failed to address this strong argument for a broad reading of the CWA 

under the Commerce Clause. As the Supreme Court has held that groundwater is an 

article of commerce and subject to Congressional regulation under the Commerce Clause, 

the EPA should explain precisely why groundwater is excluded from the intended broad 

reading of that Constitutional power under the CWA.860

While the EPA states that they have never interpreted “waters of the United States” to 

include groundwater, the judicial branch has ruled that groundwater can be jurisdictional. 

The Seventh and Tenth Circuits have considered the question, but no circuit court of 

appeals has definitively answered the question.861 Several district courts, however, have 

ruled that groundwater is covered under the CWA, particularly when there is a 

hydrological connection conveying pollutants from groundwater to jurisdictional waters. 

Earlier this year in Hawai’i Wildlife Fund v. County of Maui862 the court held that 

pollutants injected into groundwater and conveyed to the ocean were covered by the 

CWA and required a NPDES permit. And this is only the most recent addition to a long 

list of district courts that have interpreted the CWA to include groundwater.863 The 

 

858 Wood, at 613-14.

859 SWANCC, 531 U.S. at 159 (citations omitted).

860 Sporhase v. Nebraska, ex rel. Douglas, 458 U.S. 941, 941 (1982).

861 See Inland Steel Co. v. Envtl. Protection Agency, 901 F.2d 1419, 1422 (7th Cir. 1990) (“[S]ince the legal concept 

of navigable waters might include ground waters connected to surface waters... a well that ended in such connected 

ground waters might be within the scope of the Act”); Quivera Mining Co. v. US Envtl. Prot. Agency, 765 F.2d 126, 

129 (10th Cir. 1985) (finding CWA jurisdiction for a creek and gully given a surface water connection to 

‘navigable-in-fact streams’ after intense rainfall, and that the discharge of pollutants continues “through 

underground aquifers fed by the surface flow...into navigable-in-fact streams”).

862 Hawai’i Wildlife Fund v. County of Maui, __ F.Supp.2d __ (D.Haw. 2014) 2014 WL 2451565

863 See Association Concerned Over Resources and Nature, Inc. v. Tennessee Aluminum Processors, Inc., 2011 WL 

1357690 at *18 (M.D.Tenn. Apr. 11, 2011) (required the plaintiffs to show only “a link between contaminated 

ground waters and navigable waters”); Idaho Rural Council v. Bosma, 143 F.Supp.2d 1169, 1180-1181 (D. Idaho 

2001) (court holds that the CWA extends federal jurisdiction over discharges from defendant’s dairy into the 

groundwater that is hydrologically connected to surface waters that are themselves waters of the United States); 

Mutual Life Ins. Co. v. Mobil Corp., No. Civ. A. 96–CV1781, 1998 WL 160820, at *3 (N.D.N.Y. 1998) (complaint 

alleging “a hydrological connection between the contaminated ground water and navigable waters” sufficient to 

state a claim); Williams Pipe Line Co. v. Bayer Corp., 964 F.Supp. 1300, 1319-20 (S.D.Iowa 1997) (“Because the 

CWA's goal is to protect the quality of surface waters, the NPDES permit system regulates any pollutants that enter 

such waters either directly or through groundwater.”); Friends of Santa Fe County v. LAC Minerals, Inc., 892 

F.Supp. 1333, 1357-58 (D.N.M. 1995) (stating that the CWA applies to waters that travel through groundwater, and 

that “most courts to have considered the issue have held that hydrologically connected groundwaters are regulated 

waters of the United States”); Washington Wilderness Coal. v. Hecla Min. Co., 870 F.Supp. 983, 990 (E.D.Wash. 

1994) (“[S]ince the goal of the CWA is to protect the quality of surface waters, any pollutant which enters such 

waters, whether directly or through groundwater, is subject to regulation by NPDES permit”); Sierra Club v. 

Colorado Ref. Co., 838 F.Supp. 1428, 1434 (D.Colo.1993) (holding “the [CWA's] preclusion of the discharge of 

any pollutant into ‘navigable waters’ includes such discharges which reaches ‘navigable waters’ through 

groundwater”); McClellan Ecological Seepage Situation v. Weinberger, 707 F.Supp. 1182, 1196 (E.D.Cal. 1988), 

rev'd on other grounds (finding that while it is clear that “Congress did not intend to require permits for discharges 

to isolated groundwater, it is also clear that Congress did mean to limit discharges of pollutants that could affect 

surface waters of the United States” and that Plaintiff should be given the opportunity to “establish that the 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

432

proposed rule offers no recognition of this substantial body of precedent. That the judicial 

branch has failed to reach a unified view of the scope of groundwater inclusion under the 

CWA requires more justification, not less, for a groundwater exclusion by rule. The 

agency has not explained how the CWA forbids or restricts groundwater as a water of the 

United States—an especially important discussion in light of the substantial case law on 

this point. If the agency interprets the Act to grant EPA discretion in treating groundwater 

as a water of the United States, then the agency should more clearly explain its rationale 

for granting an exclusion that is so extraordinary and expansive. The agency has been 

charged by the CWA with “restor[ing] and maintain[ing] the chemical, physical, and 

biological integrity of the Nation’s waters.”864 If the EPA is using discretion in defining 

waters of the United States, the agency should clearly explain how a total groundwater 

exclusion is a suitable means to achieving that national objective. It is also clear from the 

cases cited above that courts have differentiated between types of groundwater when 

considering CWA jurisdiction. If the agency believes that it has different obligations 

under the CWA to different types of groundwater, the agency should delineate that 

clearly.

Supreme Court precedent does not require exclusion of groundwater from the CWA. The 

Supreme Court has consistently held that Congress intended to define navigable waters 

broadly under the CWA.865 Additionally, the Court has recognized that Congress, with 

the goal of improving and maintaining water quality, intended to exercise the Commerce 

Clause power to extend the reach of the CWA to regulate waters not encompassed by 

prior Congressional acts.866

The Supreme Court’s decision in Rapanos v. United States does not require groundwater 

exclusion.867 Because the Supreme Court failed to reach a majority decision in Rapanos, 

“the holding of the Court may be viewed as that position taken by those Members who 

concurred in the judgments on the narrowest grounds.”868 As the Seventh, Ninth and 

Eleventh circuits have recognized, Justice Kennedy’s concurrence and the significant 

nexus test provide the controlling rule.869 In his concurrence, Justice Kennedy rejected 

two limitations imposed by the plurality’s test: 1) that waters of the U.S. must be 

relatively permanent, standing or flowing bodies of water and 2) that they require a 

continuous surface connection.870 Thus, Justice Kennedy did not foreclose the possibility 

 

groundwater is naturally connected to surface waters that constitute ‘navigable waters’ under the Clean Water Act”); 

State of N.Y. v. U.S., 620 F.Supp. 374, 381 (E.D.N.Y 1985) (court declines to dismiss plaintiff’s CWA §301 cause 

of action “as applied to groundwaters, since it is clear that plaintiff has alleged that the pollutants threaten to 

contaminate... navigable waters”).

864 33 U.S.C. §1251(a) (2014).

865 See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985); Solid Waste Agency of N. Cook

Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 175 (2001) (Hereinafter SWANCC); Rapanos v. United 

States,

547 U.S. 715, 731 (2006).

866 Riverside Bayview, 474 U.S. at 133.

867 547 U.S. 715 (2006). 

868 Marks v. United States, 430 U.S. 188, 193 (1977) (citing Gregg v. Georgia, 428 U.S. 153 (1976)).

869 United States v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7th Cir. 2006); N. California River Watch v. City of

Healdsburg, 496 F.3d 993, 999 (9th Cir. 2007); United States v. Robison, 505 F.3d 1208, 1222 (11th Cir. 2007).

870 Rapanos, 547 U.S. at 768-69 (Kenndy, J., concurring).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

433

of CWA jurisdiction extending to groundwater in instances where a significant nexus 

exists between groundwater and traditionally defined waters of the U.S. The agencies 

have failed to explain the necessity of, or rationale for, total groundwater exclusion when 

Supreme Court precedent does not require it. 

The agencies have expressed an intention to comply with the Supreme Court holdings in 

Rapanos, and to implement Justice Kennedy’s significant nexus test. However, the 

complete categorical exclusion of groundwater does not comport with the case-by-case 

interpretation required under the significant nexus test, nor does it fulfill the purpose of 

the CWA.871 (p. 15-18)

Agency Response: The agencies have never interpreted the CWA to include 

groundwater, also shallow subsurface flow, as a “water of the United States.” 

However, consistent with many of the cases cited in the comment, EPA continues to 

interpret point source discharges of pollutants to “waters of the United States” via 

groundwater with a direct hydrologic connection to surface waters to be discharges 

subject to the CWA. See Concentrated Animal Feeding Operation Proposed Rule, 

66 FR 2960, 3015 (Jan. 12, 2001). The exclusion for groundwater in the final rule 

does not affect this longstanding interpretation as the agency has never considered 

the groundwater itself to be a "water of the United States."

Nucor Corp. (Doc. #14963)

10.449 The Plurality rejected jurisdiction over "ephemeral streams , wet meadows, storm sewers 

and culverts, directional sheet flow during storm events, drain tiles, man-made drainage 

ditches, and dry arroyos in the middle of the desert." ld. at 734 (plurality). The Plurality 

and Justice Kennedy also limited jurisdiction over wetlands, rejecting the idea that a mere 

hydrological connection between a non-adjacent wetland and a TNW was sufficient to 

establish jurisdiction. The Plurality differed from Justice Kennedy in that it believed 

jurisdiction should be limited to wetlands with a "continuous surface connection" (ld. At 

742) whereas Justice Kennedy established the "significant nexus" criterion (ld. at 780). In 

light of the disagreement between the Plurality and Justice Kennedy, the Agencies must 

establish a Comments on the U.S. EPA and U.S. Army Corps of Engineers Proposed 

Rule Regarding Definition of "Waters of the United States" Under the Clean Water Act 

rule that takes into account the common jurisdictional thread in Rapanos , and must not 

pick whichever standards suits their jurisdictional grab. (p. 5)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.

 

871 EPA and Army Corp of Engineers, Questions and Answers: Waters of the US Proposal, available at 

http://www2.epa.gov/sites/production/files/2014-09/documents/q_a_wotus.pdf. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

434

10.4. SIGNIFICANT NEXUS

Agency Summary Response:

With this rule, the agencies interpret the scope of the “waters of the United States” for the CWA 

in light of the goals, objectives, and policies of the statute, the Supreme Court case law, the 

relevant and available science, and the agencies’ technical expertise and experience. The key to 

the agencies’ interpretation of the CWA is the significant nexus standard, as established and 

refined in Supreme Court opinions: waters are “waters of the United States” if they, either alone 

or in combination with similarly situated waters in the region, significantly affect the chemical, 

physical, or biological integrity of traditional navigable waters, interstate waters or the territorial 

seas. The agencies interpret specific aspects of the significant nexus standard in light of the 

science, the law, and the agencies’ technical expertise: the scope of the region in which to 

evaluate waters when making a significant nexus determination; the waters to evaluate in 

combination with each other; and the functions provided by waters and strength of those 

functions, and when such waters significantly affect the chemical, physical, or biological 

integrity of the downstream traditional navigable waters, interstate waters, or the territorial seas. 

Preamble III, Technical Support Document, II.

Specific Comments

Office of the Governor of Iowa (Doc. #8377)

10.450 The proposed redefining of the phrase “waters of the U.S.” is undertaken with disregard 

for the applicable statutory and constitutional framework and the case law that has arisen 

from the interpretation of this phrase. EPA and the Corps have ignored the Supreme 

Court’s prior admonishments and attempted to expand Justice Kennedy’s significant 

nexus test to the ultimate extent of its logic. As Justice Scalia points out in Rapanos, the 

significant nexus test is susceptible to the interpretation that anything that affects “waters 

of the U.S.” is “waters of the U.S.” Rapanos, 547 U.S at 755. The proposed rule takes 

that idea and runs with it. 

In doing so, the proposed rule untethers from any rational tie to the language of the CWA 

and the constitutional underpinnings thereof. The CWA is premised upon the Federal 

government’s authority to regulate commerce, which is why the act specifically applies to 

“navigable waters” which it then defines as “waters of the U.S.” The Supreme Court has 

acknowledged in SWANCC and Rapanos that the traditional term “navigable waters”—

even though defined as “the waters of the United States”—carries some of its original 

substance: “[I]t is one thing to give a word limited effect and quite another to give it no 

effect whatever.” SWANCC, 531 U.S at 172. That limited effect includes, at bare 

minimum, the ordinary presence of water. See Plurality Opinion, Rapanos, 547 U.S at 

734. The proposed rule’s expansion of jurisdiction without attempting to provide a 

foundation in the regulation of commerce or impacts on actual navigation ignores the 

case law that has been developed to date and the origin of Federal jurisdiction - the 

Commerce Clause. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

435

The result is a rule that treats Justice Kennedy's concurring opinion in Rapanos as 

overruling the prior cases of Riverside Bayview872 and SWANCC. Justice Kennedy took 

pains to avoid that very result and wrote at length to explain the test in the context of 

these prior decisions. See Rapanos, 547 U.S. at 766-774. Even if the agencies are able to 

craft a rule that provides the clarity sought by all parties, that rule must continue to 

comply with the existing legal framework. (p. 6-7)

Agency Response: The rule is consistent with the statute, the caselaw and the 

Constitution. Technical Support Document, I.A. and C.

Florida Department of Agriculture (Doc. #10260)

10.451 Justice Kennedy’s concurring opinion, which suggests the “significant nexus” test, 

appears to have been relied upon heavily by the EPA and the Corps in drafting these 

revisions to the rule. Justice Kennedy states that “to constitute ‘navigable waters’ under 

the Act, a water or wetland must possess a ‘significant nexus’ to waters that are or were 

navigable in fact or that could reasonably be so made.” Rapanos, 547 U.S. at 759 

(quoting SWANCC, 531 U.S. at 167).Justice Kennedy then revises the usage of the term 

“significant nexus” by stating that it requires establishment, on a case-by-case basis, that

bodies of water or wetlands have a significant nexus if, either alone or in combination 

with similarly situated lands in the region, they significantly affect the chemical, 

physical, and biological integrity of other covered waters more readily understood as 

navigable. Id. at 782 However, Justice Stevens recognized that which is most problematic 

with the proposed rule when he noted in his dissent that “Justice Kennedy’s approach will 

have the effect of creating additional work for all concerned parties. Developers wishing 

to fill wetlands adjacent to ephemeral or intermittent tributaries of traditionally navigable 

waters will have no certain way of knowing whether they will need to get § 404 permits 

or not. And the Corps will have to make case-by-case (or category-by-category) 

jurisdictional determinations, which will inevitably increase the time and resources spent 

processing permit applications.” Id. at 809.Uncertainty is one of the chief complaints 

made regarding the proposed rule and it is also its most significant flaw. 

Justice Kennedy’s concurring opinion recommended remand of the Rapanos case back to 

the Sixth Circuit Court of Appeals to consider all the factors necessary to determine 

whether the wetlands in question had the requisite nexus with the navigable waters. Id. at 

787. The plurality opinion takes exception to this test, stating: 

‘Only by ignoring the text of the statute and by assuming that the phrase of 

SWANCC (“significant nexus”) can properly be interpreted in isolation from that 

text does Justice Kennedy reach the conclusion he has arrived at. Instead of 

limiting its meaning by reference to the text it was applying, he purports to do so 

by reference to what he calls the “purpose” of the statute. Its purpose is to clean 

up the waters of the United States, and therefore anything that might 

“significantly affect” the purity of those waters bears a “significant nexus” to 

those waters and thus (he never says this but the text of the statute demands that 

he mean it) is those waters.’ Id at 755. 

 

872 U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

436

Justice Scalia highlights the inaccuracy of attributing the “significant nexus” case-by-case 

application to Riverside Bayview, where the Court explicitly held that the determination 

of ecological significance rests on whether a wetland is contiguous, or physically 

connected, with a “water of the U.S.,” rather than any independent ecological 

determination. Id at 753-54. (citing Riverside Bayview, 474 U.s at 134-35). Justice Scalia 

then reiterates that the Supreme Court’s usage of “significant nexus” was to specifically 

hold that “[w]etlands are ‘waters of the United States’ if they bear the “significant nexus” 

of physical connection, which makes them as a practical matter indistinguishable from 

waters of the United States.”Id at 755 (emphasis in the original). (p. 66-67)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document. I.C.

10.452 Justice Kennedy’s concurring opinion recognizes that waters, which are themselves 

nonnavigable in the traditional sense and the jurisdiction of which is questionable, would 

fall into two categories: 

1. Where the connection between the navigable and the non-navigable water 

or wetland is so close, or potentially so close, that the Corps may deem 

the water or wetland a “navigable water” under the Act; or 

2. Where there is little or no connection between the traditional navigable 

water and the non-navigable water or wetland. 

Id. at 767. This analysis should bear in mind, however, the Court’s often repeated 

reminder that the Act uses the term “navigable” and that the term must be given some 

meaning, not simply interpreted in such a way that its presence in the Act is rendered 

meaningless. See SWANCC, 531 U.S. at 172. (p. 67-68)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document. I.C.

10.453 Further, as both Justice Kennedy in Rapanos and the court in Riverside Bayview note, the 

Act reserves unto each state the power to issue permits for "the discharge of dredged or 

fill material into the navigable waters . . .in its jurisdiction," excepting those navigable 

waters used or susceptible to use in interstate commerce, "including all waters which are 

subject to the ebb and flow of the tide shoreward to their ordinary high water mark, or 

mean higher high water mark on the west coast, including wetlands adjacent thereto." 33 

U.S.C. § 1344(g)(l) (emphasis added). Clearly, some wetlands fall under the scope of the 

tenn "navigable waters," provided they are adjacent to a traditional navigable water or its 

tributary. Rapanos, 547 U.S. at 768. Riverside Bayyiew makes it clear that wetlands 

adjacent to traditionally navigable waters are properly included in the Act's jurisdiction 

for two reasons: 1) the uncertainty of clear delineation where "waters" end and uplands 

begin; and 2) the Corps's ecological judgment about the relationship between waters and 

their adjacent wetlands provided an adequate basis for a legal judgment that adjacent 

wetlands may be defined as waters under the Act. 474 U.S. 121, 132-34 (2006). 

However, the relationship does not require that an adjacent wetland be inundated or 

flooded by the related "waters of the U.S." to be jurisdictional. "[S]aturation by either 

surface or ground water is sufficient to bring an area within the category of wetlands," 

provided that the saturation is sufficient, as defined in the regulation, to support 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

437

"vegetation typically adapted for life in saturated soil" and the wetland area is actually 

connected to a navigable wate1way. Id. at 129- 31. The proposed rule seems to 

misconstrue the language used by the Supreme Court regarding the source of the 

saturation to justify reaching beyond adjacency to otherwise isolated wetlands or waters. 

The proposed rule's definition of "neighboring" uses confined surface hydrologic 

connection (surface water) and shallow subsurface hydrologic connection (groundwater) 

out of context to establish adjacency and therefore jurisdiction. But the critical aspect of 

establishing adjacency is that the waters or wetlands are abutting or actually connected to 

a "water of the U.S." (p. 68).

Agency Response: The rule does not define neighboring based on surface 

hydrologic connections or shallow subsurface hydrologic connections. Preamble, 

IV.

Washington State Senate (Doc. #10871)

10.454 We also believe the proposed rule's "significant nexus" standard for seasonal, 

intermittent, and ephemeral streams and wetlands aligns very closely with the rulings of 

the Supreme Court under the Rapanos v. U.S decision and two earlier decisions reviewed 

in the rule's background statement. That standard, set out in Justice Kennedy's 

concurrence in the Rapanos case, received the support of the four dissenting justices in 

that case. While concurring in the result articulated in the plurality opinion by Justice 

Scalia, Justice Kennedy did not concur in the plurality opinion's standard that would have 

eliminated any streams from the Act's jurisdiction that are not "relatively permanent, 

standing or continuously flowing bodies of water." (p. 2)

Agency Response: The agencies agree that the rule is consistent with the caselaw. 

Texas Comptroller of Public Accounts (Doc. #10952)

10.455 Through the proposed regulatory amendments, the agencies attempt to assume plenary 

authority to define the limits of their own jurisdiction. This is contrary to the holdings in 

U.S. v. Riverside Bayview, SWANCC and Rapanos. See, Section II. A., page 22191. The 

conclusory statement on Page 22192 indicates that the agencies determine that "it is 

reasonable and appropriate to apply the 'significant nexus' standard". This is contrary to 

the ruling of the Court. This is reinforced on page 22200. (p. 5)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document. I.C.

Department of Justice, State of Montana (Doc. #13625)

10.456 Your own proposal seems to acknowledge the extension when, again at page 22192, you 

state that "Because Justice Kennedy identified 'significant nexus' as the touchstone for 

CWA jurisdiction, the agencies determined that it is reasonable and appropriate to apply 

the 'significant nexus' standard for CWA jurisdiction that Justice Kennedy's opinion 

applied to adjacent wetlands to other categories of water bodies as well...to determine 

whether they are subject to CWA jurisdiction." 

I cannot agree it is appropriate to apply the "significant nexus" standard to other 

categories of water bodies. As the majority of the Supreme Court said in the SWANCC

case: "We said in Riverside Bayview that the word 'navigable' in the statute was of 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

438

'limited import,'... 474 U.s at 133. But it is one thing to give a word limited effect and 

quite another to give it no effect whatever." This statement was confirmed by Justice 

Kennedy in his concurring opinion in the Rapanos case'. "Congress' choice of words 

creates difficulties, for the Act contemplates regulation of certain 'navigable waters' that 

are not in fact navigable . . . . Nevertheless, the word 'navigable' in the Act must be given 

some effect. See SWANCC, supra, at 172 547 U.S 779. I believe that your proposed 

regulations would completely untether the scope of your agencies' jurisdiction from the 

statutory requirement of navigability, and I think this is proven by comparing your 

proposal to what Justice Kennedy would allow:

“Through regulations or adjudication, the Corps may choose to identify categories 

of tributaries that, due to their volume of flow (either annually or on average), 

their proximity to navigable waters, or other relevant considerations, are 

significant enough that wetlands adjacent to them are likely, in the majority of 

cases, to perform important functions for an aquatic system incorporating 

navigable waters.” 547 U.S 715, 780, 781. (p. 2-3)

Agency Response: The rule is consistent with the statute, caselaw and 

Constitution. Technical Support Document, I.A and C.

Attorney General of Texas (Doc. #5143)

10.457 From a legal standpoint, the federal agencies have chosen the wrong test. While it is in 

the agencies' purview to invoke Rapanos, their guide should have been the plurality's 

narrower hydrographic test, not Justice Kennedy's "significant nexus" test. See Marks v. 

U.S., 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 

(1976) ("the holding of the Court may be viewed as that position taken by those Members 

who concurred in the judgments on the narrowest grounds ... ") (p. 5)

Agency Response: No Circuit Court has held that jurisdiction may be found only 

under the plurality standard. The rule is consistent with the caselaw. Technical 

Support Document, I.C.

10.458 In comparing the two theories, it is clear that there are certain waters that would pass 

Justice Kennedy’s significant nexus test—and therefore be included as “waters of the 

United States”—but would fail the plurality’s hydrographic test. For example, an isolated 

pond in a 100-year flood plain—which would be a water of the United States under the 

proposed rule—would likely pass Kennedy’s test but fail the plurality’s narrower 

construction. 

The federal agencies’ expansive definition also runs counter to recent guidance provided 

by the United States Supreme Court to the EPA when defining the limits of its authority. 

In Utility Air Reg. Group v. EPA, the Supreme Court cautioned that “[w]hen an agency 

claims to discover in along-extant statute an unheralded power to regulate a significant 

portion of the American economy, we typically greet its announcement with a measure of 

skepticism.” Thus, if anything, the plurality’s hydrographic test should have been adopted 

by the federal agencies, both because it garnered the most support from the Supreme 

Court and because it represents a narrower interpretation of the federal government’s 

powers. Util. Air Reg. Group v. Environmental Protection Agency, No. 12-1146, slip op. 

(U.S. June 23, 2014). (p. 5)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

439

Agency Response: No Circuit Court has held that jurisdiction may be found only 

under the plurality standard. The rule is consistent with the caselaw. Technical 

Support Document, I.C.

State of Idaho (Doc. #9834)

10.459 Any effort to clarify CWA jurisdiction should recognize that the "significant nexus" test 

Justice Kennedy set forth in Rapanos v. United States requires a connection between 

waters that is more than speculative or insubstantial to establish jurisdiction. Idaho

supports efforts to quantify "significant" in order to ensure the term's usage does not 

extend jurisdiction to waters with a de minimis connection to jurisdictional waters. Idaho 

appreciates language in the Proposed Rule which states that effects on jurisdictional 

waters must be "more than speculative or insubstantial." However, further work is needed 

to quantify the concept of significance, particularly the term "significantly affects" in 40 

CFR 328.3 (c)(7), and to flesh out a transparent process for the agencies to use when 

making significance determinations. (p. 2-3)

Agency Response: The agencies agree that the effects on traditional navigable 

waters, interstate waters, or the territorial seas must be more than speculative or 

insubstantial and have continued to define significant nexus using Justice Kennedy's 

language. The agencies have provided additional clarity by identifying in the rule 

the functions the agencies will assess for significant nexus determinations. 

Preamble, III and IV; Technical Support Document, II.

Office of the Governor, State of Wyoming (Doc. #14584)

10.460 The proposed rule misapplies Justice Kennedy's "significant nexus" test. Justice Kennedy 

used the "significant nexus" test to define the limits of connectivity. The Agencies use it 

to reach beyond jurisdictional limits. "Rivers, streams, and other hydrographic features" 

identifiable as "waters" are the focus of the Act. Justice Kennedy used "nexus" to address 

wetlands that were relatively close, while refusing to find jurisdiction over "remote and 

insubstantial waters" that "may flow into traditional navigable waters." 54 7 U.S. at 778. 

The concept of connectivity was used to "trim" the tributaries and wetlands that were 

under federal jurisdiction (not enlarge them), so only those with a "significant nexus" to 

traditional navigable waters would be federally regulated. This is consistent with the 

plurality opinion, which declined to find jurisdiction beyond "relatively permanent, 

standing or continuous flowing bodies of water," specifically excluding "channels 

through which water flows intermittently or ephemerally, or channels that periodically 

provide drainage for rainfall." Id. at 739. The proposed rule uses "nexus" differently. 79 

Fed. Reg. 22204. Any relationship that can affect the chemical, physical, or biological 

condition, no matter how minute, is used by the Agencies to claim connectivity and 

therefore federal jurisdiction. This approach disregards Justice Kennedy's opinion. 

Whereas Justice Ke1medy held that the nexus must exist and be significant for 

jurisdiction, 547 U.S. at 779-80, the Agencies' stance is that a nexus exists (no matter 

how remote), so it must be significant. (p. 6)

Agency Response: The agencies disagree that the rule is based on any connection 

no matter how minute. The agencies' significant nexus determinations are 

consistent with the caselaw and available science. Preamble, III and Technical 

Support Document, II, VI-IX. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

440

Office of the Governor, State of Utah (Doc. #16534)

10.461 The Proposed Rule continues to use the "ordinary high water mark" as an indicator for 

determining a tributary despite the fact that the plurality of the Supreme Court and Justice 

Kennedy have stated specifically it is not a reliable standard.873 Both Justice Scalia's 

plurality and Justice Kennedy's opinions reject the idea of using an ordinary high water 

mark as a means of determining a signification nexus. Justice Kennedy said that the use 

of the ordinary high water mark would expand the breadth of jurisdiction so that it would 

allow for the "regulation of drains, ditches, and streams remote from any navigable-infact water and carrying only minor water volumes toward it.”874 As much of the Proposed 

Rule seems to rest upon Justice Kennedy's opinion in Rapanos, it is conveniently odd to 

ignore his opinion on an ordinary high water mark. The use of the ordinary high water 

mark vastly expands the jurisdiction of the CWA and should not be relied upon as a 

standard. (p. 9)

Agency Response: The agencies disagree with the characterization of Justice 

Kennedy's opinion with respect to the use of the ordinary high water mark to 

identify tributaries. The definition is narrower than the existing rule and is 

consistent with the statute and the caselaw. Technical Support Document, I.B. and 

C.

Arizona State Land Department (Doc. #16903)

10.462 The Proposed Change is heavily supported by a misunderstanding of both Rapanos and 

the reasoning behind Justice Kennedy's "significant nexus" test. In reality, the Court has 

not made a consistent determination regarding "waters of the United States." Therefore, 

to allow a regulatory agency to misconstrue case law and then use that misinterpretation 

to advance its own goals would be irresponsible, at best. There has already been an 

evolution by the Court between the 2006 Rapanos case and the 2008-2009 Term. Thus, 

the Court should be allowed to continue its work unimpaired by the other branches of 

government and without being held to a standard that is already obsolete.

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Florida League of Cities, Inc. (Doc. #14466)

10.463 In the Supreme Court's most recent ruling on the matter, Rapanos v, United States,

875 the 

plurality opinion states that only waters with a relatively permanent flow should be 

federally regulated. The concurrent opinion stated that waters should be jurisdictional if 

the water has a "significant nexus" with a navigable water, either alone or with other 

similarly situated sites, Since neither opinion was a majority opinion, it is unclear which 

opinion should be used in the field to assert jurisdiction, leading to further confusion over 

what waters are federally regulated under CWA.876 The court was split in its concurrence 

as ,Justice Kennedy specifically rejected the notion that wetlands have a continuous 

 

873 See Rapanos, at 725, 781. 

874 Rapanos, at 781.

875 547 U.S. 715 (2006). 

876 http://www.naco.org/legislation/Documents/Waters-of-tlle-US-Coirnty-Analysis.pdf. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

441

surface connection to a continuously flowing body of water to be covered under the 

CWA, mere adjacency to a tributary of a navigable water is not sufficient. Thus was born 

the ambiguous term "significant nexus."877

The newly proposed rule makes an effort to resolve the confusion by broadening the 

scope of EPA's jurisdiction. The most alarming expansion comes from the plain language 

of the proposed rule, "all waters, including wetlands adjacent to a traditional navigable 

water, interstate water, the territorial seas, impoundment or tributary; and on a casespecific basis, other waters.878 Allowing for a case by c.ase determination of "other 

waters," in the broadest interpretation of the term, coupled with the ill-defined and vague 

term, significant nexus, leaves regulated permitees and especially local governments with 

great uncertainty. The current language leaves open to interpretation whether or not 

ditches, ephemeral drains and conveyances that only receive flowing water upon 

significant rain events are jurisdictional under the proposed rule. In light of this 

confusion, it is important to narrowly define the term “significant nexus.” (p. 4)

Agency Response: The rule provides additional clarity to the definition of 

significant nexus and establishes limits on the waters for which the agencies will 

perform case-specific significant nexus determinations. Preamble, IV. The rule is 

consistent with the statute and the caselaw. Technical Support Document, I.A. and 

C.

Board of County Commissioners of Otero County, New Mexico (Doc. #14321)

10.464 The Proposed Rule exceeds the scope of federal authority under the United States 

Constitution. The CWA was enacted pursuant to Congressional authority to regulate 

interstate commerce under Article I, section 8, clause 3 of the United States 

Constitution—i.e. the “Commerce Clause,” which states that Congress may “regulate 

Commerce with foreign Nations, and among the several States, and with Indian Tribes.” 

See Riverside Bayview Homes, 474 U.S. at 133 (“In adopting th[e] definition of navigable 

waters, Congress evidently intended to repudiate the limits that had been placed on 

federal regulation by earlier water pollution control statutes and to exercise its powers 

under the Commerce Clause.”). Accordingly, the scope of jurisdictional authority under 

the CWA is limited to the scope of federal authority under the Commerce Clause. 

Supreme Court precedents concerning the scope of authority under the Commerce Clause 

read, collectively, to mean that “Congress may regulate ‘the channels of interstate 

commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that 

substantially affect interstate commerce.’” Nat’l Fed’n of Indep. Bus. v. Sebellius, 132 S. 

Ct. 2566, 2578 (2012) (citing United States v. Morrison, 529 U.S. 598, 609 (2000)). 

Historically, the power over the latter category has been read expansively and held to 

authorize “federal regulation of such seemingly local matters as a farmer’s decision to 

grow wheat for himself and his livestock, and a loan shark’s extortionate collections from 

a neighborhood butcher shop.” Id. at 2578–79 (citing Wickard v. Filburn, 317 U.S. 111 

(1942); Perez v. United States, 402 U.S. 146 (1971)). 

 

877 See Rapanos, 547 U.S. 715, 722 (2006). 

878 79 Fed. Reg, 76. 22,193 (Apr. 21, 2014).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

442

It does remain, however, that to regulate local, intrastate and isolated activities (or 

waters) the activity (or waters) must have a “substantial effect” on interstate commerce. 

See United States v. Darby, 312 U.S. 100, 119–20 (1941). Additionally, more recent 

examinations concerning the outer limits of Congress’s authority to regulate interstate 

commerce make clear that the authority is not unlimited. See Nat’l Fed’n of Indep. Bus., 

132 S. Ct. at 2589 (citing Maryland v. Wirtz, 392 U.S. 183, 196 (1968); Goudy-Bachman 

v. U.S. Dept. of Health and Human Services, 811 F.Supp.2d 1086, 1105 (M.D. Penn. 

2011) (the Supreme Court’s recent opinions “caution that ‘the scope of interstate 

commerce power must be considered in the light of our dual system of government and 

may not be extended so as to embrace effects upon interstate commerce so indirect and so 

remote that to embrace them, in view of our complex society, would effectually obliterate 

the distinction between what is national and what is local and create a completely 

centralized government.’”) (internal citations omitted). Finally, the Supreme Court’s 

analysis in SWANCC and Rapanos—the most recent opinions analyzing the meaning of 

the “waters of the United States”—stand out for their resolve to reign in federal authority 

and curtail the continued expansion of federal jurisdiction under the CWA. See 

SWANCC, 531 U.S. at 171–72 (declining the expansion of the Corps’ authority under § 

404(a)’s definition of “navigable waters” to “isolated ponds, some only seasonal, [and] 

wholly located within two Illinois counties”); Rapanos, 547 U.S. at 757, 787 (where both 

the plurality opinion and Justice Kennedy’s concurring opinion make clear that the 

Corps’ determination of jurisdiction over certain wetlands was vacated and remanded 

with instruction for more restrictive interpretations). 

In spite of the continuing trend toward a more limited view of the Commerce Clause and 

two consecutive repudiations of their expanded interpretations of authority, the agencies 

now come forward with arguably their most expansive definition of the “waters of the 

United States.” For example, the Proposed Rule now defines “tributary,” a category 

jurisdictional by rule, to mean anything with a bed, banks and ordinary high water mark 

that contributes flow either directly or through a series of other waters to a more

traditional waters. See 79 Fed. Reg. 22,202 (“As the definition makes clear, the water 

may contribute flow directly or may contribute flow to another water or waters which 

eventually flow into an (a)(1) through (a)(4) water.”). The same is jurisdictional water 

regardless of whether it flows once a year or maintains a continuous surface connection, 

if only because it is presumed to have a significant nexus to the traditional “water.” 

Similarly, an isolated pond with no connection to traditional “waters” will automatically 

fall under the agencies’ jurisdiction, if only because it sits in the floodplain a tributary of 

a traditional “waters.” Again, the presumption is that it maintains a significant nexus, 

even if the nexus is not investigated, established and substantiated with documentation. 

The establishment of “automatic jurisdiction” or “jurisdiction by rule” despite any water 

specific substantiation runs counter to logic, law and Justice Kennedy’s own 

requirements—whose opinion serves as almost the entire basis of support. See Rapanos, 

547 U.S. at 781 (repudiating the ordinary high water mark standard as an appropriate 

factor for determining that tributaries are “waters of the United States” because “the 

breadth of th[e] standard ... leave[s] room for regulation of drains, ditches, and streams 

remote from any navigable-in-fact water and carrying only minor water volumes toward 

it.”); id. at 781–82 (noting that “wetlands adjacent to” a tributary—as defined by the 

Corps—might appear “little more related to navigable-in-fact waters than were the 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

443

isolated ponds held to fall beyond the Act’s scope in SWANCC”); id. at 784–85 (noting 

that even a direct hydrologic connection may not prove sufficient to establish the required 

nexus); id. at 786 (explaining that court’s reviewing significant nexus determinations 

“must identify substantial evidence supporting the Corps’ claims.”).

Here, the agencies’ Proposed Rule runs counter to fact specific investigations and 

determinations of significant nexus, or even actual connection, and applies jurisdiction by 

rule to broad categories of waters. “Similar to the ‘piling of inferences’ necessary to 

connect the regulated activity in Lopez and Morrison,” the nexus between navigable-infact or interstate waters and everything automatically included in the newly proposed 

definition of “tributary” and “adjacent waters” is clearly wanting. See Goudy-Bachman, 

811 F.Supp.2d at 1105. Furthermore, this is not the case where a “regulation ensnar[ing] 

some purely intrastate activity is of no moment” or “the de minimis character of 

individual instances arising under the statute is of no consequence.” Gonzalez v. Raich, 

545 U.S. 1, 17 and 22. Rather, this is the case where the agencies are attempting to codify 

a regulation that specifically targets “purely intrastate activity” and “individual 

instances.” Such efforts are beyond the limits envisioned by the Commerce Clause and 

cannot stand under the weight of even the most minimal of scrutiny. As such, the 

agencies Proposed Rule should be withdrawn in favor of more circumscribed ambition. 

(p. 9-11)

Agency Response: The rule is consistent with the statute, the caselaw and the 

Constitution. Technical Support Document, I.A and C.

10.465 The Proposed Rule will promote greater uncertainty concerning the general public’s 

understanding of the scope of CWA jurisdictional authority. The rule relies almost 

entirely on Justice Kennedy’s formulation of the “significant nexus” test as the basis of 

its scientific and legal authority. See 79 Fed. Reg. 22,259, app. B (relying on Justice 

Kennedy at least 12 separate times to support the proposed definition of “tributary”). As a 

matter of public policy, reliance on a standard developed and articulated by a single 

justice in a concurring opinion seems altogether unreliable for such a sweeping expansion 

of federal authority into the lives (and property) of so many Americans. Legally, the 

utilization of the “significant nexus” test is also inappropriate and should at least be 

replaced with the narrowest of potential interpretations from Court. See Marks v. United 

States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15 

(1976) (“the holding of the Court may be viewed as that position taken by those Members 

who concurred in judgments on the narrowest of grounds ...”). 

“Significant nexus” has no basis in statutory text, no previous explanation in regulatory 

use, and has no observable qualities. That the phrase—now serving as the basis for all 

jurisdiction over “the waters of the United States”—appears nowhere in the text of the 

CWA should give pause and be reviewed with hesitation. See Utility Air Reg. Group v. 

EPA, No. 12-1146, slip op. (U.S. Jun. 23, 2014) (cautioning that “[w]hen an agency 

claims to discover in a long-extant statute an unheralded power to regulate a significant 

portion of the American economy, we typically greet its announcement with a measure of 

skepticism.”) The now common phrase is actually derived from the misplaced language 

in a Supreme Court opinion. See Rapanos, 547 U.S. at 754–55 (it “is taken from 

SWANCC’s cryptic characterization of the holding of Riverside Bayview”); id. at 754 

(“Justice Kennedy misreads SWANCC’s ‘significant nexus’ statement as 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

444

mischaracterizing Riverside Bayview to adopt a case-by-case test of ecological 

significance.”). 

The use of “significant nexus” is also dubious from a practical standpoint, as it has no 

observable qualities and cannot be easily established. To use such a standard for the basis 

of jurisdiction does little to ease the work of landowners or bureaucrats. For example, 

under the now proposed definition of “the waters of the United States,” a water adjacent 

to an intermittent ditch that flows into another ditch before finally emptying into the 

larger tributary of a navigable-in-fact water is itself a “tributary” and, therefore, 

“jurisdictional by rule.” However, the typical farmer or rancher is not going to know of 

these connections and will find it necessary to work with the bureaucrat. The bureaucrat 

will also not know the connections and will need to conduct the appropriate on-theground investigation, analysis and determination of all connections; unless, the agencies 

intend to utilize a pre-determined map of all jurisdictional waters. See United States 

House or Representatives Committee on Science, Space and Technology, EPA State and 

National Maps of Waters and Wetlands, http://science.house.gov/epa-maps-state-2013 ; 

see also Letter from Lamar Smith, Chairman of House Committee on Science, Space and 

Technology, to the Honorable Gina McCarthy, Administrator of the EPA (Aug. 27, 2014) 

available at http://science.house.gov/epa-maps-state-2013. 

Therefore, at best, the regulated community must still rely on the EPA or USACE to 

investigate and determine: (i) whether a water is jurisdictional by rule; (ii) if not, whether 

the water is an “other” water; and (iii) whether any exceptions apply. This is not a 

predictable, consistent or clear process and in the end it remains unclear whether a 

“significant nexus” actually exist. See Rapanos, 547 U.S. at 786 (explaining that court’s 

reviewing significant nexus determinations “must identify substantial evidence 

supporting the Corps’ claims.”). (p. 12-13)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.

City of Newport News (Doc. #10956)

10.466 The City questions the legal basis for this definition. The definition is based almost solely 

upon a "significant nexus" theory, which comes from the concurring opinion of a single 

Supreme Court justice in Rapanos v. United States, 547 U.S. 715, cited in the definition. 

The definition almost totally ignores the determinations of the four justice plurality and 

the limitation cited therein. The following examples demonstrate this infirmity. 

The plurality determined that WOUS applies to navigable waters and conditioned these 

as those waters which are relatively permanent, standing or continuously flowing bodies 

of water, not to exclude streams, rivers and lakes that might dry up in extraordinary 

circumstances, such as drought. In spite of this EPA and USACE instead turn to Justice 

Kennedy's concurring opinion, which employs the "significant nexus" test, which 

requires proof that the area in question is within CWA jurisdiction is it "either alone or in 

combination with similarly situated wetlands, significantly affect the chemical, physical 

and biological integrity of other covered waters. Kennedy states that the relationship must 

be more than "speculative or insubstantial". The definition as proposed would include 

speculative and insubstantial connections. (p. 1-2)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

445

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C. The agencies significant nexus 

determinations are reasonable. Preamble III and IV, Technical Support Document, 

II and VI-IX.

Riverside County Flood Control and Water Conservation District (Doc. #14581)

10.467 We note that the Agencies ground the Proposed Rule on Justice Kennedy's opinion in the 

Rapanos decision, and its emphasis on "significant nexus". Indeed, the Proposed Rule 

would make significant nexus "the touchstone for CWA jurisdiction". However, the 

Proposed Rule is not consistent with Justice Kennedy's opinion and would extend his 

analysis beyond the situations discussed in Rapanos. In particular, Justice Kennedy based 

his "significant nexus" test on a water that "significantly affects the chemical, physical, 

and biological integrity" of another water. The Proposed Rule instead would base such a 

nexus on any one of those factors, using "or" instead of the "and" specified in Justice 

Kennedy's opinion. Justice Kennedy also made clear in Rapanos that there was no such 

nexus between jurisdictional waters and isolated waters, which might be separated some 

distance from the jurisdictional water. The Proposed Rule, however, ignores the rigor 

inherent in Justice Kennedy's opinion in favor of generally finding such a nexus in the 

absence of true connections. The intent of Justice Kennedy's opinion (and also that of the 

plurality opinion) was to place sensible limits upon, and not to expand, the scope of 

jurisdictional waters. However, the Proposed Rule would institute such an expansion 

through its new definitions and establishing connectivity through subterranean waters, 

which are not WOTUS. (p. 2)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.

Waters of the United States Coalition (Doc. #14589)

10.468 The Proposed Rule’s definition of “significant nexus” would improperly classify isolated 

waters as waters of the United States based on a flawed reading of Justice Kennedy’s 

decision in the Rapanos case. In Rapanos, Justice Kennedy’s concurring opinion held 

that based on the Court’s prior decision in SWANCC, a water will be considered waters of 

the United States if it has a significant nexus to traditional navigable waters. Justice 

Kennedy defined a significant nexus stating:

“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.” When, in contrast, wetlands’ effects on water quality are speculative 

or insubstantial, they fall outside the zone fairly encompassed by the statutory 

term “navigable waters.”879

The Proposed Rule is based in large part on Justice Kennedy’s concurring opinion in 

Rapanos, yet the Proposed Rule’s definition of “significant nexus” proposes to expand 

the definition of waters of the United States:

 

879 Rapanos at 780.
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446

“(7) Significant nexus. The term significant nexus means that a water, including 

wetlands, either alone or in combination with other similarly situated waters in the 

region (i.e., the watershed that drains to the nearest water identified in paragraphs 

(a)(1) through (3) of this section), significantly affects the chemical, physical, or 

biological integrity of a water identified in paragraphs (a)(1) through (3) of this 

section. For an effect to be significant, it must be more than speculative or 

insubstantial. Other 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 water identified in paragraphs (a)(1) through (3) of this 

section.”880

The Proposed Rule has substituted an “or” for an “and” in key language from the 

Supreme Court’s decisions in SWANCC and Rapanos. The preamble states that this was 

intentional:

“The proposed rule includes a definition of significant nexus that is consistent 

with Justice Kennedy’s significant nexus standard. In characterizing the 

significant nexus standard, Justice Kennedy stated: ‘‘the required nexus must be 

assessed in terms of the statute’s goals and purposes. Congress enacted the 

[CWA] to ‘restore and maintain the chemical, physical, and biological integrity of 

the Nation’s waters’...’’ 547 U.S. at 779. It’s clear that Congress intended the 

CWA to ‘‘restore and maintain’’ all three forms of ‘‘integrity,’’ 33 U.S.C. 

1251(a), so if any one form is compromised then that is contrary to the statute’s 

stated objective. It would subvert the intent if the CWA only protected waters 

upon a showing that they had effects on every attribute of a traditional navigable 

water, interstate water, or territorial sea. Therefore, a showing of a significant 

chemical, physical, or biological affect should satisfy the significant nexus 

standard.”881

The EPA and ACOE’s rationale has no support in the law. The Clean Water Act is 

designed to restore and maintain the chemical, physical, and biological integrity of the 

Waters of the United States. This statement of intent from Congress unquestionably 

applies to waters of the United States. Neither the Act, its legislative history, or the 

Supreme Court’s decisions defining the scope of the Act support this definition of the 

term:

“SWANCC rejected the notion that the ecological considerations upon which the 

Corps relied in Riverside Bayview--and upon which the dissent repeatedly relies 

today, see post, at 796, 797-798, 798-799, 800, 803, 806, 807, 809-810, 165 L. 

Ed. 2d, at 213, 214, 215, 216, 218, 220, 222--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 

 

880 79 FR 22263.

881 79 FR 22261.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

447

irrelevant to the question whether physically isolated waters come within the 

Corps’ jurisdiction.”

882

The Proposed Rule would therefore expand the universe of waters encompassed by 

Justice Kennedy’s significant nexus test in a manner that far exceeds the plain language 

of his opinion. For that reason, the definition is flawed must be revised. (p. 44-46)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

San Joaquin Tributaries Authority (Doc. #14992)

10.469 The expansion of EPA and Corps jurisdiction over hydrologic features is not supported 

by the recent Supreme Court decisions. Specifically, the Proposed Rule relies on 

"significant nexus" language, which would greatly expand the jurisdiction of the EPA 

and Corps over hydrological features. However, the significant nexus language was 

endorsed by only one Supreme Court Justice in Rapanos and is not supported by any 

other Supreme Court precedent. 

The Supreme Court has interpreted the definition of WOTUS on only three occasions. 

The Supreme Court first confronted this definition in United States v. Riverside Bayview

Homes, Inc. (1985) 474 U.S. 121 ("Riverside Bayview"). That decision upheld the Corps' 

jurisdiction over wetlands adjacent to other covered waters, and includes no discussion of 

the "significant nexus test" adopted by the EPA in the Proposed Rule.

The "significant nexus" language first appears in Supreme Court case law in Solid Waste 

Agency of Northern Cook County v. United States Army Corps of Engineers (2001) 531 

U.S. 159 ("SWANCC"). The SWANCC Court used the term only once: "It was the 

significant nexus between the wetlands and 'navigable waters' that informed our reading 

of the CWA in Riverside Bayview Homes." (SWANCC, at 167.) The SWANCC Court did 

not employ the "significant nexus" test in making its decision; it merely used the term in 

analyzing a prior decision. Justice Scalia noted that neither SWANCC nor Riverside 

Bayview endorsed a case-by-case determination ofa hydrological feature's "significant 

nexus," or ecological significance, to a covered waterway to determine whether it falls 

under the EPA or Corps' jurisdiction under the CWA. (Id, at 754 ["Justice Kennedy 

misreads SWANCC's 'significant nexus' statement as mischaracterizing Riverside Bayview

to adopt a case-by-case test of ecological significance"].) 

The EPA draws its greatest support for the use of the "significant nexus" test from Justice 

Kennedy's concurring opinion in Rapanos. Rapanos is the most recent Supreme Court 

decision regarding the definition of WOTUS; it was a plurality opinion, in which Justice 

Scalia wrote for four justices joining the plurality, Justice Kennedy wrote an opinion 

concurring with the plurality, and Justice Stevens wrote for four justices dissenting from 

the plurality. Only Justice Kennedy supported the "significant nexus" test; all other eight 

justices would have applied a different test to determine the jurisdiction of the EPA under 

the CWA. 

 

882 Rapanos at 741-742.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

448

Both Justice Scalia and Justice Stevens were highly critical of Justice Kennedy's use of 

the "significant nexus" test in Rapanos. Justice Scalia, writing for three other justices, felt 

the "significant nexus" test was overly broad and not supported by Supreme Court 

precedent. He criticized the potential for a broadened scope of Corps jurisdiction 

specifically warning the "significant nexus" test could regulate improperly irrigation and 

drainage ditches. (Rapanos, at 734 ["in applying the definition to ... manmade drainage 

ditches ... the Corps has stretched the term beyond parody."].) 

Justice Stevens, on the other hand, criticized Kennedy's "significant nexus" test for its 

ambiguity and lack of efficiency. He wrote, "Justice Kennedy's approach will have the 

effect of creating additional work for all concerned parties. Developers wishing to fill 

wetlands adjacent to ephemeral or intermittent tributaries of traditionally navigable 

waters will have no certain way of knowing whether they need to get§ 404 permits or not. 

(Id, at 809.) 

Justice Scalia and Justice Stevens also questioned the precedential support for the 

"significant nexus" test. Justice Scalia wrote that "Justice Kennedy's reading of 

'significant nexus' bears no easily recognizable relation to either the case that used it 

(SWANCC) or to the earlier case that that case purports to be interpreting (Riverside 

Bayview)." (Id., at 753.) 

For these reasons, 'the "significant nexus" test has no precedential value, and is not 

appropriate to use as a basis for the Proposed Rule. In cases where there is no single 

rationale behind the plurality opinion, such as in Rapanos, no particular standard is 

binding because none has received the support of a majority of the Supreme Court. 

(Commonwealth Edison, at 39, citing Texas v. Brown (1983) 460 U.S. 730, 737.) 

Therefore, the "significant nexus" test adopted by the EPA and Corps is not the 

controlling rule and the Proposed Rule proposes to regulate in a manner that was flatly 

criticized by eight of the nine justices. (p. 3-4)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.

National Association of Flood & Stormwater Management Agencies (Doc. #13613)

10.470 Justice Kennedy, in his concurring opinion in the Rapanos Supreme Court case 

established the significant nexus standard that determines CWA jurisdiction. The 

significant nexus standard tested whether an area in question significantly affected the 

chemical, physical and biological integrity of downstream waters. However, throughout 

the proposed rule’s preamble and definition, EPA deviates from Justice Kennedy’s key 

criteria and relies on conclusion from effects to “chemical, physical or biological 

integrity.” The simple deviation from Supreme Court language greatly lowers the 

threshold for significant nexus and will expand the CWA jurisdiction. We request EPA 

remain consistent with Justice Kennedy’s significant nexus standard and rely on effects to 

“chemical, physical and biological integrity” for conclusions of navigable waters. (p. 2) 

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

449

Utah Association of Counties (Doc. #14756)

10.471 33 CFR 328.3 Current Rule: (e) The term ordinary high water mark means that line on 

the shore established by the fluctuations of water and indicated by physical characteristics 

such as clear, natural line impressed on the bank, shelving, changes in the character of 

soil, destruction of terrestrial vegetation, the presence of litter and debris, or other 

appropriate means that consider the characteristics of the surrounding areas.

UAC Proposed Change to 33 CFR 328.3: INSERT THE FOLLOWING AS 

SUBSECTION (c)(2) AND RENUMBER SUBSEQUENT SUBSECTIONS 

ACCORDINGLY: The term ordinary high water mark means that line on the shore 

established by the fluctuations of water and indicated by physical characteristics 

such as clear, natural line impressed on the bank, shelving, changes in the character 

of soil, destruction of terrestrial vegetation, the presence of litter and debris, or 

other appropriate means that consider the characteristics of the surrounding areas.

Agency Response: The agencies did not propose any changes to the existing 

definition of ordinary high water mark so this comment is beyond the scope of the 

rule.

10.472 UAC Proposed Change to 33 CFR 328.3: (6) (5) Wetlands. The term wetlands means 

those areas that are inundated or saturated by surface or groundwater at a frequency and 

duration sufficient to support, and that under normal circumstances do support, a 

prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands 

generally include swamps, marshes, bogs and similar areas.

(7) (6) (a) A water, including wetlands adjacent to a navigable water, per se has a 

significant nexus to a navigable water only if the means that a water, including 

wetlands, meets all of the following conditions: either alone or in combination with 

other similarly situated waters in the region (i.e., the watershed that drains to the 

nearest water identified in paragraphs (a)(1) through (3) of this section), 

significantly affects the chemical, physical, or biological integrity of a water 

identified in paragraphs (a)(1) through (3) of this section. For an effect to be 

significant, it must be more than speculative or insubstantial. Other 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 water identified in 

paragraphs (a)(1) through (3) of this section. a

(i) the water, including wetlands, is adjacent to a navigable water body 

regardless of whether there is continuous surface flow between the subject 

water, including wetland, and the navigable water; 

(ii) (ii) including the subject water, including wetlands, in “the waters of the 

U.S.” will significantly affect the Clean Water Act policy objective, namely 

“restore and maintain the chemical, physical, and biological integrity of the 

Nation's waters.” 33 U.S.C. § 1251(a), and at the same time do no harm to the 

second CWA policy objective, namely to “recognize, preserve, and protect 

the primary responsibilities and rights of States to prevent, reduce, and 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

450

eliminate pollution, [and] to plan the development and use . . . of land and 

water resources," 33 U. S. C. § 1251(b). Failure to satisfy both objectives 

means the water, including wetlands, fails the significant nexus test. 

(iii) The hydrologic connection between the water, including wetlands, and the 

navigable water must be substantial enough that the subject wetland is 

inundated or saturated by surface or ground water at a frequency and 

duration sufficient to support, and that under normal circumstances do 

support, a prevalence of vegetation typically adapted for life in saturated soil 

conditions. Wetlands that meet this requirement are generally swamps, 

marshes, bogs, and similar areas." Factors to weigh when answering this 

inquiry are: (A) prevalence of plant species typically adapted to saturated 

soil conditions, determined in accordance with the United States Fish and 

Wildlife Service's National List of Plant Species that Occur in Wetlands; (B) 

hydric soil, meaning soil that is saturated, flooded, or ponded for sufficient 

time during the growing season to become anaerobic, or lacking in oxygen, in 

the upper part; and (C) wetland hydrology, a term generally requiring 

continuous inundation or saturation to the surface during at least five 

percent of the growing season in most years. 

(iv) (The connection between the subject wetland and navigable body of water 

must be readily apparent to the average observer. Hence non-adjacent 

wetlands that lay alongside non-navigable ditches or drains, isolated ponds 

and mudflats are non-jurisdictional, even if water from them may eventually 

flow into a traditional navigable water body. 

(b) A water, including wetlands adjacent to a navigable water, per se 

does not have a significant nexus to a navigable water if (i) the water if 

a tributary does not have a readily ascertainable ordinary high water 

mark or bank to have a sufficient nexus a navigable water. However 

the mere presence of an ordinary highwater mark does not 

automatically qualify it for inclusion in “the waters of the United 

States;” (ii) the water is a drain, ditches, or stream remote from any 

navigable-in-fact water and carrying only minor water volumes 

toward it. 

(c) All other cases not fitting the description of neither subsection 

(6)(a) and 6(b) above, will be decided by the agency on a case by case 

basis. (p. 18-23)

Agency Response: While the rule has been revised to provide additional clarity, 

the agencies did not make these changes to the rule. Preamble, IV.

California Building Industry Association, et al. (Doc. #14523)

10.473 Reliance of the mere presence or absence of purported nexus indicators absent a 

mandated and defined consideration of the respective indicator’s significance is fatally 

reminiscent of the agencies’ “any hydrologic connection” test resoundingly rejected by 

five justices in Rapanos. See Rapanos, 547 U.S. at 784 (Kennedy, J., concurring). The 

failure to include a test or even consideration of significance in its analysis itself deals a 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

451

fatal blow to the sole basis for categorically designating both the newly defined 

“tributaries” and “adjacent waters,” i.e., the Connectivity Report. 

Indeed, Justice Kennedy, the father of the purported significant nexus test, repeatedly 

cautioned that “remote,” “insubstantial,” ”speculative,” or “minor” connections will not 

suffice to establish a significant nexus. See, e.g., Rapanos, 547 U.S. at 778-79. Further, 

Justice Kennedy’s test was a site-specific and fact-specific (as opposed to a sweeping 

categorical inclusion) examination considering such factors as distance, quality, and 

regularity of flow for each wetland under consideration. Id. at 784-87. The notion of 

categorical inclusion of a vast universe of features nationwide based upon vague and 

undefined criteria in no way resembles or emulates the exacting examination articulated 

by Justice Kennedy. 

The Proposed Rule provides: “For an effect to be significant, it must be more than 

speculative or insubstantial.“ 79 Fed. Reg. at 22,263. However, Justice Kennedy’s 

statement that a nexus must be more than “insubstantial” or “speculative,” Rapanos at 

784 (Kennedy, J., concurring), does NOT mean that any alleged nexus that is “more than 

speculative or insubstantial” definitionally qualifies as “significant,” as established in the 

Proposed Rule. This would utterly disregard any common sense or plain language notion 

of “significant.” (p. 25)

Agency Response: The rule and the agencies' significant nexus determinations are 

consistent with the statute and caselaw. Preamble, III; Technical Support 

Document, I.A and C, II.

Coalition of Local Governments (Doc. #15516)

10.474 The Proposed Rule misinterprets the “significant nexus” standard set forth in Justice 

Kennedy’s concurring opinion in Rapanos. EPA and the Corps maintain that the 

“significant nexus” means “a water, including wetlands, either alone or in combination 

with other similarly situated waters in the region...significantly affects the chemical, 

physical, or biological integrity of” the “waters of the United States.” 79 Fed. Reg. at 

22213, 22261, 22263. However, Justice Kennedy used the conjunctive “and,” not the 

disjunctive “or,” when describing the effects that must be shown to have a “significant 

nexus.” Rapanos, 547 U.S. at 780 (“wetlands possess the requisite nexus...[if they] 

significantly affect the chemical, physical, and biological integrity of other covered 

waters.”). See N. Cali. River Watch v. Healdsburg, 496 F.3d 993, 1000-1001 (9 Cir. 

2007) (Court found evidence of the significant affects on the chemical, physical, and 

biological integrity of the Russian River.). The purpose of the CWA is also to restore and 

maintain the “chemical, physical and biological integrity” of the United States’ waters. 33 

U.S.C. §1251(a). 

The Proposed Rule also states that for an effect to be significant, it must be more than 

“speculative or insubstantial.” 79 Fed. Reg. at 22213, 22263. The EPA and Corps claim 

that this is the precise terms that Justice Kennedy used to define “significant nexus.” Id. 

at 22213. However, Justice Kennedy wrote: 

Accordingly, wetlands possess the requisite nexus, and thus come within the 

statutory phrase “navigable waters,” if the wetlands, either alone or in 

combination with similarly situated lands in the region, significantly affect the 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

452

chemical, physical, and biological integrity of other covered waters more readily 

understood as “navigable.” When, in contrast, wetlands’ effects on water quality 

are speculative or insubstantial, they fall outside the zone fairly encompassed by 

the statutory term “navigable waters.” Rapanos, 547 U.S. at 780). 

Therefore, the definition of “significant nexus” requires documentation of some 

significance. Justice Kennedy noted that the Corps should document the significance of 

tributaries to which wetlands are connected, the significance of the hydrologic connection 

for downstream water quality, and/or the quality or regularity of flow in any adjacent 

tributaries in order to prove there is a “significant nexus.” Precon Dev. Corp. v. United 

States Army Corps of Engineers, 633 F.3d 278, 289 (4 Cir. 2011) (citing Rapanos, 547 

U.S. at 784, 786). (p. 12-13)

Agency Response: The rule and the agencies' significant nexus determinations 

are consistent with the statute and caselaw. Preamble, III; Technical Support 

Document, I.A and C, II.

Salinas Valley Water Coalition (Doc. #15625)

10.475 The Proposed Rule impermissibly expands the scope of the federal agencies' regulatory 

authority by misinterpreting and misapplying the U.S. Supreme Court's decision in 

Rapanos v. United States (2006) 547 U.S. 715. The decision produced a 4-vote plurality 

holding that "navigable waters", as regulated under the Clean Water Act, is defined as 

follows: 

"[T]he waters of the United States" include only relatively permanent, standing or 

flowing bodies of water. The definition refers to water as found in "streams," 

"oceans," "rivers," "lakes "and "bodies” of , water "forming geographical 

features." All of these terms connect' continuously present, fixed bodies of ' 

water,'' as opposed to ordinarily dry channels through which water occasionally or 

intermittently flows.” (Id. at p. 732-733) 

Under the 4-vote plurality decision, "the waters of the United States" are not: channels 

containing intermittent or ephemeral flow, ephemeral streams, wet meadows, storm 

sewers and culverts, directional sheet flow during storm events, drain tiles, man-made 

drainage ditches, and dry arroyos. (Id at p. 733.) 

Even if the "significant nexus" `test is followed to define' "the waters of the United 

States" as set forth in Justice Kennedy's opinion in concurring in the judgment, the 

Proposed Rule goes too far. Justice Kennedy's opinion sets limitations on the definition to 

ensure that waters with less significant connection with actual navigable waters would 

not be subject to federal jurisdiction: 

“[T]he Corps must establish a significant nexus on a case-by-case basis when it 

seeks to regulate wetlands based on adjacency to non-navigable tributaries. Given 

the potential over-breath of the Corps' regulations, this showing is necessary to 

avoid unreasonable application of the statute.” (Id at p. 782.) 

Expressing concerns of over-reaching federal jurisdiction, Justice Kennedy stated that 

there must be specific findings before water becomes jurisdictional water. These findings 

include, but are not limited to, a determination that the water (1) "significantly affect the 

chemical, physical, and biological integrity of other covered water" and (2) is "significant 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

453

enough ...to perform important functions for an aquatic system incorporating navigable 

waters." (Id. at p. 779-780.) Plainly stated, there must be sufficient scientific basis to 

support significant effect to jurisdictional waters, and the federal agencies cannot simply 

rely on mere adjacency or intermittent and inconsequential flow to jurisdictional water to 

pass the significant nexus test.

Ignoring that part of Justice Kenney's opinion, the Proposed Rule makes a careless

assumption that "significant nexus" exists for entire categories of water (i.e., "tributaries",

"adjacent waters" and "other waters", which include those that are dry and/or covered) to 

assert federal jurisdiction, without providing the required scientific finding for each water 

flow to justify that they do in fact have significant effect on jurisdictional waters. Under 

the Proposed Rule, the USEPA and USACE will perform cursory reviews based on aerial 

photographs, U.S. Geological Survey maps, National Wetlands Inventory Maps and other

maps to make a determination out of whole cloth that these waters have significant effect 

on jurisdictional waters. (p. 2-3)

Agency Response: The rule and the agencies' significant nexus determinations 

are consistent with the statute and caselaw. Preamble, III; Technical Support 

Document, I.A and C, II.

John Deere & Company (Doc. #14136.1)

10.476 It must be noted that a succession of recent, notable Supreme Court decisions interpreting 

the precise meaning of “navigable waters” for the purpose of defining the CWA’s 

jurisdictional waters have resulted in a narrower rather than expanded definition of

‘waters of the United States’. In its 2001 decision Solid Waste Agency of Northern Cook 

County v. U.S. Army Corps of Engineers (SWANCC) the Supreme Court considered the 

application of the Corp’s “Migratory Bird Rule” to an abandoned sand and gravel pit in

northern Illinois. In this decision the Court held that non-navigable, isolated, intrastate 

waters, which do not actually abut on a navigable waterway, are not included as waters of 

the United States.883

In Rapanos v. United States the Supreme Court’s plurality found that federal regulatory 

authority only extended to “relatively permanent, standing or continuously flowing 

bodies of water” known as “streams, oceans, rivers and lakes”.884 The Court’s plurality 

further held that by interpreting the plain statutory text to include “ephemeral streams” 

and “drainage ditches” with an “ordinary high water mark” as “tributaries” under their 

jurisdiction, the Corps further overstepped its regulatory authority.

Unfortunately, the agencies have extended the “significant nexus” standard found in 

Justice Kennedy’s concurring opinion in Rapanos into the proposed rule, applying it not 

only to adjacent wetlands (at issue in Rapanos), but to other categories of water bodies, 

 

883 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).

884 Rapanos v. United States, 547 U.S. 715 (2006)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

454

such as tributaries of traditional navigable waters or interstate waters, and to “other 

waters” (that is, waters not fitting in another category).885

The significant nexus concept grew out of the Court’s decision in United States v. 

Riverside Bayview Homes in which wetlands “inseparably bound” to traditionally 

navigable waters were found to be jurisdictional. The Supreme Court expressed 

reluctance to extending CWA jurisdiction over “lands” not so situated — even those that 

are wet.886 Indeed, in Riverside Bayview the Court stated that “navigable waters” referred

primarily to “rivers, streams, and other hydrographic features more conventionally 

identifiable as “waters” than wetlands adjacent to such features.” 887

In all three of these decisions the Court has sought to give effect to the phrase “navigable 

waters,” which is defined in the CWA as “the waters of the United States”.888 Contrary to 

the proposed rule, these decisions have narrowed, not expanded, the agencies definition 

of waters of the United States. (p. 16-17)

Agency Response: The rule is narrower in scope than the existing rule. The rule 

and the agencies' significant nexus determinations are consistent with the statute 

and caselaw. Preamble, III; Technical Support Document, I.A, B. and C, II.

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

10.477 The proposal...includes “significant nexus” provisions that allow the agencies to 

determine on a case by case basis, that waters that are not traditional navigable waters, 

are not tributaries to traditional navigable waters, and are not “adjacent” to either (socalled “isolated waters”) are WOTUS. Further it provides that the significant nexus can 

be found based not only on the effect of the particular water at issue, but also the effect in 

combination with other similarly situated waters located in the same region. These 

provisions expand existing CWA jurisdiction and do not provide certainty or clarity—

two of the agencies’ stated goals for the rulemaking. 

The concept of “significant nexus” was discussed by Justice Kennedy in the Rapanos

case to test whether the four wetlands at issue “significantly affect the chemical, physical 

or biological integrity” of the navigable water miles away. In Rapanos, the effect of the 4 

wetlands was only “speculative and insubstantial”. The test suggested by Justice Kennedy 

is whether a water has a “significant nexus” to a navigable water that is substantial (i.e. 

can be proven) and is not speculative. However, the Rapanos case and its “significant 

nexus” test must be read in light of the SWANCC case, in which the Supreme Court held 

that the agencies could not use the Migratory Bird rule to assert jurisdiction over nonnavigable, intrastate, isolated waters. The Rapanos case did not overrule that holding in 

the SWANCC case. In other words, even if there is a “significant nexus,” the agencies 

cannot assert jurisdiction over those non-navigable, intrastate, isolated waters. 

 

885 Lesley Foxhall Pietras, EPA and Army Corps of Engineers Propose Significant Revisions to Definition of 

"Waters of the United States, http://www.theenergylawblog.com/2014/04/articles/environmental/epa-and-armycorps-of-engineerspropose-significant-revisions-to-definition-of-waters-of-the-united-states. 

886 EPA, Army Corps Propose New Rule to Govern Federal Clean Water Act Jurisdiction, Latham & Watkins Client 

Alert (April 8, 2014), Number 1673 at 2.

887 Riverside Bayview, 474 U.S. at 131

888 33 U.S.C. §1362(7)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

455

The use of the “significant nexus” in the proposal also does not take into account the 

limits articulated in the Rapanos case but rather expands the concept to where every drop 

of water can be ultimately connected to every other drop. Domtar recommends that if the 

“significant nexus” test is going to be used that it be better defined and follows the limits 

discussed in the Rapanos case. (p. 5)

Agency Response: The rule and the agencies' significant nexus determinations are 

consistent with the statute and caselaw. Preamble, III; Technical Support 

Document, I.A and C, II.

Land Improvement Contractors of America (Doc. #8541) 

10.478 Over the last several decades, the Supreme Court has sought to clarify the concept of 

WOTUS, but in many respects has created greater confusion. Three seminal cases inform 

the current rulemaking. The Rapanos case requires the government to establish a 

“significant nexus” (biological, chemical or physical) between non-navigable and 

Traditionally Navigable Waters (TNW’s) to establish CWA jurisdiction. The effect of the 

SWANCC and Rapanos decisions was to significantly limit the federal government’s 

authority over certain waters historically deemed jurisdictional, including isolated, 

intrastate wetlands and wetlands adjacent to tributaries located remotely from TNW’s. 

The significant nexus test must not be used as a method of taking the Connectivity Report 

and using every hydrological connection as a legal connection for determining 

“significant.” To be significant, or “more than speculative or insubstantial,” must mean 

that the expansion of jurisdiction beyond the Supreme Court decisions is not allowed, 

otherwise too many waterways in the country will be subjected to the full force of federal 

CWA, in an era with limited federal resources available to address CWA goals. LICA 

supports the decisions of the Supreme Court to leave the management of non-navigable 

waters in the hands of landowners and local governments. (p. 2)

Agency Response: The rule and the agencies' significant nexus determinations are 

consistent with the statute and caselaw. Preamble, III; Technical Support 

Document, I.A and C, II.

10.479 As drafted the PR would substantially expand CWA jurisdiction post-Rapanos, granting 

EPA and the U.S. Army Corps of Engineers (USACE) broad authority and discretion to 

regulate wetlands and other water bodies remote from TNW’s. The amount of expansion 

is difficult to predict with any meaningful precision, but if the proposal were to pick up

all adjacent waters and most isolated wetlands and ditches, the expansion would be 

significantly greater than 3% as estimated by EPA, including expanding jurisdiction to 

water features on agricultural lands that have not been subject to CWA jurisdiction since 

before the SWANCC case in 2001. (p. 2)

Agency Response: The rule is narrower than the existing rule. Technical Support 

Document, I.B. The Economic Analysis explains the methodology and results of the 

analysis.

Clearwater Watershed District, et al. (Doc. #9560.1)

10.480 The Agencies again twist logic in attempt to gain back what Court precedent has 

consistently curtailed. The newly proposed rule offers new language and terms that 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

456

depart from the nomenclature used in the Clean Water Act, historical regulations, and 

existing case-law precedence. (p. 2)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.

10.481 The proposed rule defines significant nexus as an ideological measurement of the 

chemical, physical, or biological effects that waters perform individually or together with 

all similarly situated waters on traditional navigable waters. But, case law demands more 

than a measurement of the nexus between a water and a traditional navigable water as 

part of the water cycle. As currently understood by the proposed rule, the agencies view 

"significant nexus" as the connection between water itself, and not as a measure of a 

wetland impact's effects on water quality. (p. 8)

Agency Response: The rule and the agencies' significant nexus determinations 

are consistent with the statute and caselaw. Preamble, III; Technical Support 

Document, I.A and C, II.

10.482 The rule as proposed fails to recognize the Clean Water Act's legislative history, its 

statutory limits, and the restrictions authored by the courts. The United States Supreme 

Court has twice stated that the U.S. EPA and Army Corps must find meaning in 

Congress's use of the word "navigable." A review of the bills proposed by Congress since 

the Clean Water Act's enactment shows that there is not Congressional support for an 

expansion of the phrase "waters of the United States" being proposed by the agencies in 

this rule. Section 101 (b) of the Clean Water Act states Congress's policy is to preserve 

the primary responsibility and rights of states to prevent, reduce, and eliminate pollution, 

to plan the develop and use of land and water resources, and to consult with the 

Administrator with respect to exercise of the Administrator's authority under the CWA. 

(p. 12) 

Agency Response: The rule is consistent with the statute and the caslaw. 

Technical Support Document, I.A. and C. 

U.S. Chamber of Commerce, et al. (Doc. #14115)

10.483 Justice Kennedy...acknowledged that the Court’s concept of a “significant nexus” was 

tied to Riverside, in which wetlands actually abutting navigable waters were deemed to 

be within the Act’s jurisdiction because they are “integral parts of the aquatic 

environment” that Congress expressly chose to regulate.889 The SWANCC majority 

(including Justice Kennedy) had made the same point, and had concluded that ponds with 

no hydrologic connection, but with a very strong biological connection, to navigable 

waters were not subject to the Act’s jurisdiction.890 Justice Kennedy concluded with the 

general statement that “the Corps’ jurisdiction over wetlands depends upon the existence 

of a significant nexus between the wetlands in question and navigable waters in the 

traditional sense.”891

 

889 Rapanos at 779 (quoting Riverside, 474 U.S. at 135).

890 SWANCC at 172

891 Id. at 779. Elsewhere in his Rapanos opinion, Justice Kennedy mischaracterized the Court’s decision in 

SWANCC, saying the Court there had held that “to constitute ‘navigable waters’ under the Act, a water or wetland 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

457

Justice Kennedy maintained that, for jurisdiction over wetlands, the requisite nexus must 

be significant effects on “the chemical, physical and biological integrity of the covered 

waters more readily understood as ‘navigable’.”892 He posits this standard in a factual 

vacuum, ignoring that this standard, adopted by the Court in Riverside, pertained to 

wetlands actually abutting navigable waters such that a demarcation between waters and 

wetlands could not easily be discerned. Divorced from that significant fact, Justice 

Kennedy’s standard is expansive. It could be applied to many isolated waters, including 

those held to be non-jurisdictional in SWANCC. It was the physical – i.e., hydrologic –

connection that led the Court in Riverside to conclude that wetlands were “inseparably 

bound up with” navigable waters, and thus had a significant nexus to them. And it was 

the lack of such a connection that led the Court in SWANCC (including Justice Kennedy) 

to conclude that physically isolated ponds had no such significant nexus. Nothing in the 

facts before the Court in Rapanos could justify this departure from the Court’s precedent 

or legitimize Justice Kennedy’s broad over-statement of the significant nexus principle.

Justice Kennedy also creates out of whole cloth the notion that a wetland can be found to 

have a significant nexus with “covered waters” if it has the requisite effects on the 

integrity of those waters “in combination with similarly situated lands in the region.”893

Nothing in the Court’s jurisprudence or the statute suggests that Congress intended to 

enact a “cumulative impacts” standard for determining federal jurisdiction over a 

particular water body. Such a standard is unworkable in any event because the “in 

combination with” assessment allows certain wetlands – e.g., those directly abutting on 

navigable waters – to sweep into the Act’s jurisdiction other wetlands in the region that 

contribute little to the “combined” impacts owing to the lack of any physical connection 

or proximity of those wetlands to navigable waters. Again, nothing in the facts of 

Rapanos even calls for consideration of this cumulative impacts principle.

Finally, Justice Kennedy offers his view of what is not a “significant nexus” – i.e. 

“wetlands’ effects on water quality [that] are speculative or insubstantial.”894 Justice 

Kennedy appears to mean that “speculative or insubstantial” effects cannot be deemed 

“significant,” a proposition few would dispute. Justice Kennedy likely did not mean that 

effects which are shown to be non-speculative and/or somewhat more tangible than 

insubstantial should automatically rise to the level of “significant,” as he offers no 

support for such a proposition. It is also worth remembering that Justice Kennedy was 

keenly interested in the factors that would strengthen or weaken any nexus between 

waters. These factors would include distance, volume of flow, and duration of flow. The 

Kennedy-type inquiry about whether a significant relationship truly exists between a 

 

must possess a ‘significant nexus’....” Id. 759 (quoting SWANCC, 531 U.S. 159 at 167, 172). The referenced 

passages in SWANCC refer to the prior holding in Riverside concerning wetlands inseparably bound up with 

navigable waters on which they abut. They mention nothing about a “water” (e.g., a pond or lake) having a 

“significant nexus” to navigable waters. The Agencies have mistakenly relied upon this incorrect assertion by 

Justice Kennedy to confer CWA jurisdiction over all manner of “waters” that are physically disconnected from 

navigable waters. 79 Fed. Reg. at 22259-60

892 Id. at 780.

893 Id.

894 Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

458

given water and another water is largely absent in the Agencies’ proposal. Under the 

proposed rule, the nexus is presumed to be both present and significant.

The Agencies’ application of Justice Kennedy’s views must respect the following 

boundaries:

 Justice Kennedy provided no guidance for distinguishing between “tributaries” 

and predominantly dry features that may occasionally convey rainwater. Instead, 

the plurality’s views should control;

 Justice Kennedy provided no support for considering unconnected waters such as 

ponds to be tributaries;

 Justice Kennedy’s participation in the SWANCC majority indicates he would not 

consider an intrastate water to be jurisdictional unless it is adjacent to open water 

in the same sense that the Court discussed adjacency in Riverside (i.e. actually 

abutting);

 Remote wetlands with merely a surface connection to small streams are not 

jurisdictional;

 Wetlands that merely lie alongside a drain or ditch are not jurisdictional.

For the reasons discussed above, the Agencies’ reliance on the Rapanos case holding, and 

the “significant nexus” concept articulated by Justice Kennedy in particular, does not 

provide a valid legal justification for the overly expansive definition of WOTUS in the 

proposed rule. The Agencies’ proposal tortures the logic of Rapanos beyond the breaking 

point, making any theoretical effect of a wet area on distant navigable waters 

“significant” and completely abandoning Justice Kennedy’s determination that the 

relationship, if any, would only be “speculative or insubstantial.” For this reason, the 

Agencies’ proposed WOTUS rule is fatally legally flawed. (p. 46-48)

Agency Response: The rule and the agencies' significant nexus determinations 

are consistent with the statute and caselaw. Preamble, III; Technical Support 

Document, I.A and C, II.

Portland Cement Association (Doc. #13271)

10.484 The basis for jurisdiction over tributaries and adjacent waters is the Agencies’ assertion 

that these waters always have a significant nexus to the core waters895– under the 

proposed rule, the Agencies are no longer utilizing the Rapanos plurality’s “relatively 

permanent waters” test.

The end result is, essentially, that areas are always jurisdictional as far upstream as one 

can identify a bed and bank and ordinary high water mark, and as far outward from that 

 

895 See. e.g., 79 Fed. Reg. at 22193 ("With this proposed rule, the agencies conclude, based on existing science and 

the law, that a significant nexus exists between tributaries (as defined in the proposed rule) and the traditional 

navigable waters, interstate waters, and the territorial seas into which they flow; and between adjacent water bodies 

(as defined in the proposed rule) and traditional navigable waters, interstate waters, and the territorial seas, 

respectively.")
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

459

bed and bank as the water has “direct influence” on the area’s ecology or is located in a 

sediment formation that is inundated by high flows.

The Agencies then propose to memorialize the significant nexus test, covering, on a caseby-case basis,

“...water[s], including wetlands, [that] either alone or in combination with other 

similarly situated waters in the region (i.e., the watershed that drains to the nearest 

[core] water. . . ) significantly affect[] the chemical, physical, or biological 

integrity of a [core] water. . . Other 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 [core] water.”

The end result is that the two tests proposed are similar to those currently being applied 

by the Agencies, but several new definitions result in the newly-proposed test being 

significantly more expansive than even the currently-used test. (p. 5)

Agency Response: The rule is narrower than the existing regulation and is 

consistent with the statute and the caselaw. Technical Support Document, I.A. B. 

and C.

10.485 PCA has a number of specific concerns about the proposed rule, most of which are rooted 

in its general concerns that the proposed rule is simultaneously beyond the scope of the 

Agencies’ jurisdiction under the CWA and too unclear to provide a reasonable 

understanding of the regulated features. The result is overly expansive regulation and the 

permanent adoption of an impractical process based neither in science nor in the language 

of the CWA.

At their core, the tests outlined in the proposed rule are inconsistent with the two 

Supreme Court decisions clarifying the limitations on CWA jurisdiction. On close 

inspection, the proposed rule looks much like the interpretation the government argued, 

and lost, in Rapanos. In its Rapanos brief,896 the government argued that “[t]he 

connection between traditional navigable waters and their tributaries is significant in 

practical terms, because pollution of the tributary has the potential to degrade the quality 

of the traditional navigable waters downstream.” The government rejected the notion 

“that some tributaries may have such an attenuated connection to traditional navigable 

waters that federal protection of those tributaries would be unwarranted,” because 

“petitioners offer[ed] no administrable or scientifically supported standard by which any 

such tributaries could be identified.” 

The Supreme Court, and Justice Kennedy in particular, ruled against the government, 

specifically rejecting many of the key assertions underpinning the proposed rule. In 

particular, Justice Kennedy stated that

 

896 Available at http://www.americanbar.org/content/dam/aba/publishing/preview/publiced preview_briefs-

_pdfs_05_06_04_1034_Respondent.authcheckdam.pdf. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

460

• “[T]he Corps deems a 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.”

• “. . . 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 water 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. 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.”

In short, Justice Kennedy ruled that the government cannot definitively state that a 

wetland has a significant nexus (and is therefore jurisdictional) solely because it is 

adjacent to an ordinary- high-water-mark tributary. Yet, in its proposed rule, the 

Agencies have done just that. As such, the portion of the rule related to adjacency is 

inconsistent with Justice Kennedy’s significant nexus test and the government cannot 

claim that test ad the basis for their claim to jurisdiction.897 As that is the government’s 

only claim to jurisdiction, the rule as proposed cannot be finalized.

The proposed rule is also in conflict with the SWANCC decision. While that decision 

related solely to the applicability of the migratory bird rule, the Rapanos decision made 

clear that five Justices believe that the waters at issue in SWANCC are nonjurisdictional 

under any theory, including the significant nexus test. 

The Scalia plurality summarized SWANCC as holding “that ‘nonnavigable, isolated, 

intrastate waters,’ id., at 171—which, unlike the wetlands at issue in Riverside Bayview, 

 

897 We note also that Justice Kennedy also stated that 

This standard presumably provides a rough measure of the volume and regularity of flow. Assuming it is 

subject to reasonably consistent application, but see U. S. General Accounting Office, Report to the 

Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on 

Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District 

Office Practices in Determining Jurisdiction, GAO-04-297, pp. 3-4 (Feb. 2004), 

http://www.gao.gov/new.items/d04297.pdf. (noting variation in results among Corps district offices), it 

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.

Id. at 781. The Agencies cannot rely on this language in support of their definition of tributary for two reasons. First, 

this language does not reflect an actual decision by Justice Kennedy - he states that it "presumably" provides a rough 

measure and "may well" provide a reasonable measure. He therefore has not held anything. Moreover, Justice 

Kennedy's language contains a large caveat- that the test adopted by the government must be subject to reasonably 

consistent application - and then cites a reference suggesting that such consistency is lacking. The Agencies have 

done nothing in the rulemaking to suggest they have addressed this problem of inconsistent application. Thus, this 

portion of the test is also facially inconsistent with Justice Kennedy's opinion. More significantly, and as discussed 

more fully below, the Agencies have inserted a number of new factors into their proposed rule which would all tend 

to lead to further instances of inconsistent application. In short, the type of case-by-case tests proffered throughout 

the proposed rule inexorably conflicts with Justice Kennedy's decision.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

461

did not ‘actually abu[t] on a navigable waterway,’ 531 U. S., at 167—were not included 

as ‘waters of the United States’.” As a result,

only those wetlands with a continuous surface connection to bodies that are 

"waters of the United States" in their own right, so that there is no clear 

demarcation between "waters" and wetlands, are "adjacent to" such waters and 

covered by the Act. Wetlands with only an intermittent, physically remote 

hydrologic connection to "waters of the United States" do not implicate the 

boundary-drawing problem of Riverside Bayview, and thus lack the necessary 

connection to covered waters that we described as a "significant nexus" in 

SWANCC.

Similarly, as described immediately above, Justice Kennedy deemed the waters “isolated 

ponds [that were] held to fall beyond the Act’s scope.”

Thus, five Justices deem the waters in SWANCC beyond the scope of CWA jurisdiction. 

Yet under the broad rule proposed by the Agencies, the waters at issue in SWANCC

would almost certainly be considered jurisdictional. The map below, from Google Maps, 

depicting in red the area at issue in SWANCC. Surrounding it, identified in black are a 

variety of perennial tributaries of the Fox River, as well as surrounding wetlands. This 

map does not attempt to show the intermittent and ephemeral tributaries of the river or 

determine if the wetlands highlighted on the map are “adjacent” as defined by the rule. 

These tests would likely cause the red-blocked area at issue in the SWANCC case to be 

considered by the Agencies to be jurisdictional, at odds with the SWANCC decisions. We 

instead note that these wetlands would undoubtedly be viewed by the Agencies as 

jurisdictional under the “significant nexus” case-by-case test, as they aggregate together 

in the watershed that drains to the nearest navigable or interstate water or the territorial 

sea. They completely surround, as denoted in red, the area deemed by the court in 

SWANCC to be isolated and not subject to federal jurisdiction. (p. 5-8)

Agency Response: The rule and the agencies' significant nexus determinations are 

consistent with the statute and caselaw. Preamble, III; Technical Support 

Document, I.A and C, II. It is beyond the scope of this rulemaking to provide 

detailed responses to site specific analyses of particular waters, nor is it feasible. 

This is a definitional rule that addresses the scope of waters covered by the Clean 

Water Act; the CWA permitting requirements are only triggered when a person 

discharges a pollutant to a covered water. For all of these reasons, drawing 

conclusions about the jurisdictional status of an individual water based on sitespecific circumstances is beyond the scope of this rulemaking. 

10.486 In its public statement on the rule, the Agencies have stressed that an extensive draft 

study on the connectivity of stream and wetlands to downstream waters has been 

prepared and that the Agencies had asked a Scientific Advisory Board (SAB) for its 

views on the study and on the scientific basis for the rule. Neither the connectivity study 

nor the SAB’s opinion on it or other scientific support for the rule is relevant to this 

rulemaking. This is because, as noted by the Agencies898 and in the September 30, 2104 

 

898 79 Fed. Reg. at 22193
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

462

letter from the SAB to Administrator McCarthy,899 “’significant nexus’ is a legal term, 

not a scientific term.”900 Thus, whether there is scientific connectivity between upstream 

wetlands or waters and downstream jurisdictional ones is not relevant to the question of 

whether the CWA regulates such upstream waters or whether such waters would be 

viewed by the Supreme Court as having a legally significant nexus to downstream ones. 

(p. 9)

Agency Response: Significant nexus is not a purely a scientific determination. 

The opinions of the Supreme Court have noted that as the agencies charged with 

interpreting the statute, EPA and the Corps must develop the outer bounds of the 

scope of the CWA, while science does not provide bright lines with respect to where 

“water ends” for purposes of the CWA. Therefore, the agencies’ interpretation of 

the CWA is informed by the Science Report and the review and comments of the 

SAB, but not dictated by them. Preamble, III; Technical Support Document, II.

10.487 As the Agencies are well aware, the CWA carries with it the potential for criminal 

penalties.901 Indeed, the Rapanos decision was the civil portion of an enforcement effort 

that included a criminal prosecution.902 Given that there is a minimal mens rea

component in criminal cases, clarity is critical. In the absence of clarity, the government 

could potentially find an individual or entity criminally liable for violation the Act when 

that person made an honest mistake about the scope of its coverage. The rule at issue is 

far from clear and risks such a result.

The other reason the enforcement structure of the CWA requires a greater emphasis on 

clarity is that the Agencies are not always involved when courts determine the scope of 

their regulations. Given the CWA’s citizen suit provision,903 private citizens often 

directly sue alleged violators. As a result, numerous courts will be required to interpret 

this new, ambiguous rule in all manner of cases. Some will inevitably interpret these 

terms broadly, and those interpretations will be cited to other courts in other citizen suits, 

creating a situation where the rules may end up being broader – and more variable – than 

even the Agencies intend. The most effective way to avoid such a result is to promulgate 

clear rules, clearly explained. The Agencies have not done either in this rulemaking and, 

 

899 Titled "Science Advisory Board (SAB) Consideration of the Adequacy of the Scientific and Technical Basis of 

the EPA's Proposed Rule titled 'Definition of Waters of the United States under the Clean Water Act'," and available 

at http://yosemite.epa.gov/sab/sabproduct.nsf/WebBoard/5 l 8D4909D94CB6E585257D63007 67D D6/$File/EPASAB-14-007+unsigned.pdf 

900 Id. at 4. 

901 To support a criminal action under the CWA, the government must establish that a knowing or negligent 

violation of the CWA occured. 33 U.S.C. § 1319(c)(l). Negligent violations of the CWA may lead to criminal 

penalties of up to $25,000 per day of discharge or up to one year of imprisonment or both. Id.

902 Notably, notwithstanding the fact that the government lost the Rapanos civil case at the Supreme Court for 

failure to properly identify the wetlands at issue as jurisdictional , Mr. Rapanos' s criminal appeal was not successful 

and he was convicted of criminal violations of the Act. The full criminal case is 895 F. Supp. 165 (E.D. Mich. 

1995), rev'd, 115 F.3d 367 (6th Cir. 1997), cert denied, 522 U.S. 917 (1997), appeal after remand, 235 F.3d 256 (6th 

Cir. 2000), cert granted, judgment vacated, 533 U.S. 913 (2001), on remand, 16 Fed.Appx. 345 (6th Cir. 2001), on 

remand, 190F. Supp. 2d 1011 (E.D. Mich. 2002), rev'd, 339 F.3d 447 (6th Cir. 2003), cert denied, 124 S. Ct.1875 

(2004), aff'd, 376 F.3d 629 (6th Cir. 2004).

903 33 U.S.C §1365(a)(1).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

463

as described above, only added additional opaque terms that require case-by-case 

analysis. (p. 30-31)

Agency Response: In the final rule, EPA and the Corps clarify the scope of 

“waters of the United States” that are protected under the Clean Water Act (CWA), 

based upon the text of the statute, Supreme Court decisions, the best available peerreviewed science, public input, and the agencies’ technical expertise and experience 

in implementing the statute. This rule makes the process of identifying waters 

protected under the CWA easier to understand, more predictable, and consistent 

with the law and peer-reviewed science, while protecting the streams and wetlands 

that form the foundation of our nation’s water resources. Preamble.

National Stone Sand and Gravel Association (Doc. #14412)

10.488 The Proposed Rule is at odds with the Fourth Circuit's interpretation of Kennedy's 

significant nexus test in Precon Development Corp. v. Corps NSSGA submits that an 

adequate evidentiary basis is required to assert CWA jurisdiction based on "significant 

nexus" and recommends that the agencies drop the "jurisdiction by rule" approach in 

favor of an evidence-based criterion to evaluate specific water or wetland's relationship to 

the closest traditionally navigable water. The decision of the United States Court of 

Appeals for the Fourth Circuit, Precon Development Corp. v. Corps, 633 F. 3d. 278 (4th 

Cir. 2011), is the most extensive analysis to date interpreting the nature and extent of the 

evidence needed to meet the "significant nexus" test of Rapanos and provides useful 

guidance for developing evidentiary criteria.904

In Precon, the Corps had asserted jurisdiction over 4.8 acres of wetlands which are more 

than seven miles from the nearest navigable water. The wetlands were adjacent to two 

drainage ditches that flowed approximately 3.11 miles to connect with a swamp that 

drained in to the Northwest River, a Traditionally Navigable Water (TNW) in 

Chesapeake Virginia. The Corps found that these ditches were "relatively permanent" 

tributaries to the River and then aggregated 448 acres of wetlands adjacent to the 

tributaries' watershed as "similarly situated wetlands" under Kennedy’s test. The Corps 

also found that, although a berm had "severed the direct surface water connection" 

between the wetlands and the ditches, the "berm had a negligible effect on the overall 

ecological functions that...all of the adjacent wetlands provide to downstream 

[traditionally navigable waters]."905 The Corps then asserted jurisdiction based on a 

quantitative and qualitative analysis of flow and storage capacity of the ditches, 

concluding that the ditches and their "similarly situated adjacent wetlands" cumulatively 

provided significant flood flow and filtering benefits to downstream traditionally 

navigable waters.906 The district court upheld the Corps’ jurisdictional findings.907

The Fourth Circuit reversed holding that, despite the Corps evidence of flow and 

function, the evidence did not support the "Corps determination that the nexus that exists 

between the 448 acres of similarly situated wetlands and the Northwest River is 

 

904 The Fourth Circuit covers the states of Maryland, Virginia, West Virginia, North Carolina and South Carolina.

905 633 F.3d. at 285

906 Id at 285

907 658 F. Supp. 2d. 752 (E.D. Va. 2009).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

464

significant."908 The Court still upheld the Corps discretion to aggregate the 48 acres or 

wetlands as "similarly situated" under the Guidance, although questioning whether the 

Corps had precisely adhered to the Rapanos Guidance in identifying adjacent wetlands 

stretching over three miles downstream as "similarly situated."909 However, it found that 

the record did not contain enough evidence to assess the effects of these wetlands on the 

ecology of the River. The Court then quoted Justice Kennedy's language that "the 

significant nexus test is a flexible ecological inquiry into the relationship between the 

wetlands at issue and the traditionally navigable water [noting that Justice Kennedy], 

clearly intended for some evidence of both a nexus and its significance to be 

presented."910 The Precon court's views as to the necessary evidence are especially 

illustrated by the Court's comments about wetlands at issue in the case. Those wetlands 

were "lying along a ditch-but separated from the ditch by a man-made berm–which 

eventually drained into Lake St. Claire approximately one mile downstream."911 The 

court noted, "We can imagine...that wetlands next to a tributary with minimal flow might 

be significant to a river one quarter mile away, whereas wetlands next to a tributary with 

much greater flow might have only insubstantial effects on a river located twenty miles 

away."912 The court even cited the Corps' own guidance on the extent of evidence 

issue.913 It logically follows that the more remote a wetlands is to a TNW in terms of 

distance, separation, and flow, the less likely the loss of that wetland would be the 

foreseeable "proximate cause" of impairment of the TNW's water quality and other 

functions. Following remand, the Corps provided additional documentation consistent 

with the 4th Circuit's guidance regarding the condition of the River, the flow of the 

tributaries and the function of the wetlands. The District Court then analyzed and upheld 

under the Fourth Circuit's evidentiary standards. 2013 U.S. Dist. LEXIS 164612 *12 

(E.D. Va. 2013). 

An analysis of the Precon Court's opinion provides a roadmap for assessing the nature of 

the evidence needed to support a significant nexus finding: 

First, measurement of a tributary's flow in retaining floodwaters is insufficient, standing 

alone, without "additional information regarding its significance." Rather the inquiry 

 

908 633 F.3d at 295.

909 The Court stated that "we recognize that Justice Kennedy’s instruction---that, "similarly situated lands in the 

region can be evaluated together--is a broad one, open for considerable interpretation and requiring some ecological 

expertise to administer." Id. at 292.

53 Id. at 294.

910 Id. at 294

911 633 F.3d. at 296. The Court cited Carabell v. Corps, 126 S. Ct. 2208 (2006) the companion case to Rapanos, 

noting that the "geography of these wetlands at issue places them squarely in that category of wetlands over which 

jurisdiction is no longer assured." (noting that the wetlands were, "considerably more removed from traditionally 

navigable waters than the wetlands at issue in Carabell") Id.

912 Id. at 294-295

913 That guidance states, "As the distance from the tributary to the navigable water increases, it will become

increasingly important to document whether the tributary and its adjacent wetlands have a significant nexus rather

than a speculative or insubstantial nexus with traditionally navigable water."
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

465

requires evidence "emphasiz[ing] the comparative relationship between the wetlands at 

the issue, the adjacent tributary, and the traditionally navigable waters."914

Second, there must be evidence in the record allowing review of whether the wetlands 

functions provide significant benefits for the TNW. For example, the Precon Court noted, 

"merely stating that the wetlands and their adjacent tributaries trap sediment and nitrogen 

and perform flood control functions is not sufficient without knowing if the River suffers 

from high levels of nitrogen or if it is prone to flooding."915

Third, the Corps cannot simply expect a reviewing court to defer to its significant nexus 

finding. Rather, while the Corps factual findings are entitled to deference under the 

APA's "arbitrary and capricious" standard the court held that, significant nexus is 

ultimately a legal determination for whether wetlands adjacent to non-navigable 

tributaries come within the CWA's definition of "navigable waters."916 (p. 37-39)

Agency Response: The rule is consistent with the caselaw. Technical Support 

Document, I.C.

Tennessee Mining Association (Doc. #14582)

10.489 Since the Agencies have applied the significant nexus test to all other covered waters in 

addition to wetlands, in guidance and in the Proposed Rule, then it is essential that the 

Agencies properly define the limits of what constitutes a significant nexus not only from 

a scientific viewpoint but also from a legal and constitutional basis. The Agencies appear 

to be reframing Justice Kennedy's meaning of speculative or insubstantial by stating that 

the scientific application of speculative or insubstantial is not the same as a legal one. The 

excerpt below is very revealing in that regard:

“It is important to note, however, that where Justice Kennedy viewed the 

language "more than speculative or insubstantial" to suggest an undue degree of 

speculation, scientists do not equate certain conditional language (such as "may" 

or "could") with speculation, not equate certain conditional language (such as 

"may" or "could") with speculation, but rather with the rigorous and precise 

language of science necessary when applying specific findings in another 

individual situation or more broadly across a variety of situations. Certain terms 

used in a scientific context do not have the same implications that they have in a 

legal or policy context. Scientists use cautionary language, such as ' 'may'' or 

"could," when applying specific findings on a broader scale to avoid the 

appearance of overstating their research results and to avoid inserting bias into 

their findings (such that the reader may think the results of one study are 

applicable in all related studies). Words like "potential" are commonly used in the 

biological sciences, but when viewed under a legal and policy veil, may seem to 

mean the same as "speculative" or "insubstantial." Instead, potential in scientific 

terms means ability or capability. For example, when the term "potential" is used 

to describe how a wetland has the potential to act as a sink for floodwater and 

 

914 Id.

915 Id. At 295.

916 Id. At 296.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

466

pollutants, scientists mean that wetlands in general do indeed perform those 

functions, but whether a particular wetland performs that function is dependent 

upon the circumstances that would create conditions for floodwater or pollutants 

in the watershed to reach that particular wetland to retain and transform. That 

does not mean, however, that this nexus to downstream waters is "speculative;" 

indeed the wetland would be expected to provide these functions under the proper 

circumstances.” Proposed Rule at 22,262. (p. 5-6) 

Agency Response: The statements are consistent with the Science Report. The 

rule is consistent with the statute and the caselaw. Technical Support Document, 

I.A. and C.

Devon Energy Corporation (Doc. #14916) 

10.490 The Proposed Rule does not comport with the Agencies' jurisdictional authority as set 

forth in the Clean Water Act and applicable Supreme Court decisions. The Agencies 

appears to base their Proposed Rule to a great extent on the technical conclusions and 

recommendations in its Connectivity Report and SAB Review. But the Agencies' 

jurisdiction over surface waters is determined by the language of the Clean Water Act 

and Supreme Court decisions interpreting that statutory language; not the Connectivity 

Report and subsequent SAB Review. To the extent the Agencies base their Proposed 

Rule on these technical reports and recommendations rather than the statute and case law 

that define its authority, this rule, if finalized, could be ultra vires. 

The Agencies appear to rely exclusively on Justice Kennedy's concurring opinion in the 

Rapanos v. United States917 decision as the legal basis for this 2014 Proposed Rule and to 

ignore the plurality opinion in that case. The Agencies' failure to conform its proposed 

rule to the Rapanos plurality opinion, which was supported by four-fifths of the majority 

in this case, as well as Justice Kennedy's concurring opinion, is arbitrary and capricious. 

The Agencies fail to articulate their reasons for relying so heavily on Justice Kennedy's 

concurring opinion in Rapanos for this proposed rule. In failing to articulate a reasoned, 

rational basis for this exclusive reliance, the Agencies are acting in an arbitrary and 

capricious manner. 

The Agencies expand Justice Kennedy's "significant nexus" test articulated in Rapanos to 

assert jurisdiction over adjacent waters other than adjacent wetlands. The Agencies also 

revise Justice Kennedy's significant nexus test in the proposed rule from requiring a 

significant effect on chemical, physical and biological integrity to requiring a significant 

effect on chemical, physical or biological integrity. Unilaterally expanding and revising 

Justice Kennedy's significant nexus test in this proposed rule is legally unsupportable and 

therefore arbitrary and capricious. (p. 4)

Agency Response: The rule is consistent with the statute and the caselaw and 

reasonably informed by the science. Preamble III; Technical Support Document, 

I.A and C, II.

 

917 547 U.S. 715 (2006).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

467

American Petroleum Institute (Doc. #15115)

10.491 The appropriate test for jurisdiction under Rapanos implements the jurisdiction limiting 

principles articulated by both the plurality and Justice Kennedy The agencies are not free 

to ignore the limits that the Rapanos plurality recognized on the agencies’ assertion of 

jurisdiction: “[t]he principal objective of the Marks rule is to promote predictability in the 

law by ensuring lower court adherence to Supreme Court precedent. This objective 

requires that, whenever possible, there be a single legal standard for the lower courts to 

apply in similar cases and that this standard, when properly applied, produce results with 

which a majority of the Justices in the case articulating the standard would agree.”918 

This principle becomes even more salient where, as here, the question is not jurisdiction 

over a single water body (as it would be in a judicial proceeding). Rather, the agencies 

propose an expansive administrative rulemaking that will apply Clean Water Act 

jurisdiction to countless different water bodies throughout the country under numerous 

Clean Water Act programs. It is therefore critical that the 2014 Proposed Rule embody 

the jurisdiction-limiting principles articulated by all of the Justices in the Rapanos

majority.

A faithful application of the majority opinions in Rapanos would conclude that: 

1) a non-navigable tributary is jurisdictional only if it has relatively permanent flow 

to a navigable water; and 

2) a wetland is jurisdictional only if it has a continuous surface connection to a 

navigable water (either directly or through a relatively permanent tributary) and 

there is a demonstrated significant nexus between that wetland and the navigable 

water. 

This test for jurisdiction over tributaries, adjacent waters, and “other waters” is faithful to 

both opinions constituting the majority opinion in Rapanos and should form the basis for 

this rulemaking with respect to tributaries, adjacent waters, and “other waters.” 

The application of this jurisdictional test would be clear and straightforward. For 

jurisdiction to exist, wetlands must have a continuous surface connection to a navigable 

water. If there is no such connection, there is no jurisdiction. If, however, there is a 

continuous surface connection, jurisdiction exists only when there is a determination by 

the Corps or other relevant permitting authority that the connection between the wetland 

and the navigable water has a “significant nexus” under Justice Kennedy’s test. 

This jurisdictional test is consistent with the Supreme Court’s guidance on interpreting 

fractured opinions like Rapanos. First, it avoids reliance on dissenting Justices to reach 

“the holding” of Rapanos. Second, it avoids an interpretation of Marks that would allow 

Rapanos to have multiple, inconsistent holdings depending upon the particular water 

body to which it is applied.919 Third, this approach addresses the main concern of the 

 

918 Planned Parenthood v. Casey, 947 F.2d 682, 693 (3d Cir. 1991), aff’d in part and rev’d in part on other grounds, 

505 U.S. 833 (1992). 

919 Under Marks, “the holding of the Court may be viewed as the position taken by those Members who concurred in 

the judgment on the narrowest grounds.” 430 U.S. at 193. Use of the singular form in “the holding” and “the 

judgment” dictates that the judgments must be read in combination to produce a single holding in the case.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

468

Rapanos majority—recognizing and implementing clear limits on the agencies’ 

overbroad jurisdictional assertions under the Clean Water Act. 

Looking beyond the interpretive principles set forth in Marks, it is fundamentally 

improper as a matter of judicial interpretation for the agencies to issue a rule that ignores 

the views of four of the five justices in the majority in Rapanos. Justice Kennedy wrote 

only for himself in articulating the significant nexus test. 

API’s proposed jurisdictional test not only faithfully implements the Supreme Court’s 

majority opinion in Rapanos, it is clearer and more readily applied than the jurisdictional 

criteria set forth in the agencies’ 2014 Proposed Rule. The agencies’ 2014 Proposed Rule 

asserts jurisdiction over tributaries if they contain a bed, bank, and high water mark, and 

contribute flow to a navigable water. Jurisdiction may be readily determined if a bed, 

bank, and high water mark are clearly defined, but for many tributaries it will be difficult 

to discern the presence of these characteristics in the landscape. This is particularly true 

in the arid Western United States, where dry channels may appear and disappear over 

varying topography. Without the requirement of relatively permanent flow, it would often 

be unclear which dry channels meet the 2014 Proposed Rule’s definition of tributary, and 

which do not. 

Under API’s proposed approach to determining jurisdiction over tributaries, the 

interpretive difficulties posed by the 2014 Proposed Rule would be avoided. Only 

relatively permanent tributaries to navigable waters would be jurisdictional. Continuous 

flow for at least three months of the year is a bright-line criterion that could be easily 

applied by landowners and the agencies. (p. 17-19)

Agency Response: No Circuit Court has followed the approach to the Rapanos 

opinions recommended by the commenter. In the final rule, EPA and the Corps 

clarify the scope of “waters of the United States” that are protected under the Clean 

Water Act (CWA), based upon the text of the statute, Supreme Court decisions, the 

best available peer-reviewed science, public input, and the agencies’ technical 

expertise and experience in implementing the statute. This rule makes the process of 

identifying waters protected under the CWA easier to understand, more 

predictable, and consistent with the law and peer-reviewed science, while protecting 

the streams and wetlands that form the foundation of our nation’s water resources. 

Preamble, Technical Support Document, I. A and C., VII.

10.492 When EPA and the Corps finalized their guidance in 2008, their interpretation of 

Rapanos remained the same.920 In 2011, when the agencies proposed revisions to their 

2008 Guidance, their interpretation held constant: “The agencies continue to believe, as 

expressed in previous guidance, that it is most consistent with the Rapanos decision to 

assert jurisdiction over waters that satisfy either the plurality or the Justice Kennedy 

 

920 See EPA and Corps, “Clean Water Act Jurisdiction Following the Supreme Court’s Decision in Rapanos v. 

United States & Carabell v. United States” at 3, available at 

http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA_Jurisdiction_Following_Rapa 

nos120208.pdf (2008 Guidance).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

469

standard, since a majority of justices would support jurisdiction under either standard.”921 

The 2014 Proposed Rule significantly changes the agencies’ interpretation of Rapanos

without explanation. Although the preamble mentions the Rapanos plurality in passing, 

the 2014 Proposed Rule disregards the jurisdictional limitations described in that opinion. 

Throughout the preamble, the agencies rely solely on Justice Kennedy’s significant nexus 

test as the rationale for their assertion of jurisdiction over tributaries, adjacent waters, and 

other waters. Although the 2014 Proposed Rule does not explicitly apply the significant 

nexus test to tributaries and adjacent waters, the preamble clearly shows that the agencies 

have based their jurisdiction over those waters on the significant nexus test. (p. 34)

Agency Response: The rule is consistent with the caselaw and the agencies have 

explained their reasoning. Preamble, II; Technical Support Document, I.C.

10.493 For the past seven years, the United States has—in permitting decisions, litigation, and in 

official regulatory guidance—interpreted Rapanos to convey jurisdiction when either 

Justice Kennedy’s or Justice Scalia’s test is met.922 Although this interpretation of 

Rapanos is itself erroneous, the agencies fail to explain their basis for dispensing with 

that interpretation and taking a very different approach in the 2014 Proposed Rule. 

Without any—let alone an adequate—reasoned explanation for adopting this new 

interpretation of Rapanos, the agencies’ 2014 Proposed Rule is arbitrary and capricious. 

Deference is particularly inappropriate here given the agency’s change in its position of 

the last seven years. The agencies cannot simply eschew any responsibility for their 2008 

Guidance by claiming the guidance did not impose legally binding requirements on EPA, 

the Corps, or the regulated community.923

Although the agencies do not explain their change of heart, there are only two possible 

explanations. First, it is possible that the agencies now believe that a faithful 

interpretation of Rapanos results in the agencies being compelled to apply only the 

significant nexus test. Second—and more likely—the agencies believe that the fractured 

opinions in Rapanos allow them to choose whether to base jurisdiction on either the 

plurality’s test or the significant nexus test. 

As described in greater depth earlier in these comments, under either of these possible 

justifications, the 2014 Proposed Rule is arbitrary and capricious. If the agencies now 

indeed believe that the significant nexus test is the only controlling rule of law from 

Rapanos, the 2014 Proposed Rule must explain and justify that conclusion. Such a 

 

921 EPA and Corps, “Draft Guidance on Identifying Waters Protected by the Clean Water Act” (April 2011) (2011 

Draft Guidance) at 2, available at http://www.epa.gov/tp/pdf/wous_guidance_4-2011.pdf. 

922 2007 Guidance at 3; 2008 Guidance at 3.

923 2008 Guidance at 4, n.17. The 2008 Guidance, which interpreted Rapanos broadly, was a legislative rule. The 

June 2007 Guidance was subject to public notice and comment as would a rulemaking: EPA and the Corps received 

over 66,000 public comments, and revised the Guidance in 2008 after considering these comments. 2008 Response 

to Comments at 1. The entire purpose of the 2008 Guidance was to “ensure that jurisdictional determinations, 

permitting actions, [administrative enforcement actions,] and other relevant agency actions are consistent with the 

[Rapanos] decision and supported by the administrative record.” 2008 Guidance at 3, 4. Further, the agencies issued 

the guidance “to ensure nationwide consistency, reliability, and predictability in [their] administration of the 

statute.” 2008 Guidance at 3, 4. The 2008 Guidance did not merely interpret Rapanos, but established new policy 

positions that the agencies would treat as binding when making jurisdictional determinations. Labeling the agencies’ 

action as “guidance” does not make it so and does not change the fact that this was a legislative rule.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

470

substantial interpretive change requires explanation under the APA and an opportunity 

for comment. If, rather, the agencies believe that Rapanos allows them to base 

jurisdictional on either the plurality’s test or the significant nexus test, the agencies must 

explain why one test is a reasonable basis for rulemaking and the other is not, and why it 

would not be appropriate to apply the jurisdiction limiting principles articulated by both 

opinions. Indeed, to apply either the significant nexus test or the plurality test alone, 

without consideration of the other test, is to willfully ignore the totality of the Rapanos

majority. (p. 35-36)

Agency Response: The rule is consistent with the caselaw and the agencies have 

explained their reasoning. Preamble, II; Technical Support Document, I.C.

Illinois Coal Association (Doc. #15517)

10.494 Based on the scope and breadth of the "significant nexus" test as construed by the 

Agencies, it is entirely conceivable and indeed likely that tributaries and wetlands remote 

from TNWs with an insubstantial and speculative connection to downstream TNWs 

could be deemed jurisdictional. This runs directly counter to the legal maxim articulated 

in Rapanos that "[f]or an effect to be "significant," it must be more than "speculative or 

insubstantial." See 547 U.S. at 780. Indeed, Justice Kennedy concluded that certain minor 

tributaries would necessarily lack a significant nexus because they were insubstantial. Id. 

at 781. Despite this judicial guidepost, the Agencies have nevertheless sought to deem all 

tributaries per se jurisdictional, even expanding the traditional meaning of "tributary" to 

features without bed and bank or OHWM. The Proposal thus leaves open the possibility 

that "drains, ditches, and streams remote from any navigable-in-fact water" may in fact be 

deemed jurisdictional, a result which subverts the outer limits on jurisdiction established 

by Rapanos. Id. Moreover, as mentioned above, the Proposal further contemplates the 

possibility of jurisdiction absent a hydrologic connection, based on, for example, a 

connection with aquatic birds, which in the SWANCC case then-Chief Justice Rehnquist, 

joined by Justice Kennedy, cautioned was a serious encroachment on the rights of states 

to manage land and water resources. See 531 U.S. at 172-74. (p. 15)

Agency Response: The rule is consistent with the caselaw and the agencies' 

significant nexus determinations are reasonable and consistent with the science. 

Preamble, III and IV, Technical Support Document, I, II, V-IX.

Gas Producers Association (Doc. #16340)

10.495 EPA and the Corps have proposed the rule in response to two U.S. Supreme Court 

decisions, where the Court held that the Corps applied the term “waters of the United 

States” too expansively. See Solid Waste Agency of Northern Cook County v. U.S. Army 

Corps of Eng’rs, 531 US. 159 (2001) (SWANCC); Rapanos v. United States, 547 U.S. 

715 (2006). In Rapanos v. United States, the most recent of the decisions, at issue was 

whether the Corps could interpret “waters of the United States” broadly enough to 

exercise jurisdiction over a private landowner’s “sometimes saturated” parcel of land 

located eleven to twenty miles from the nearest body of navigable water. The Corps 

deemed this proximity sufficiently “adjacent” to constitute it part of “the waters of the 

United States.” The Sixth Circuit deferred to the Corps’ interpretation, but the Supreme 

Court reversed, stating that “the Corps has stretched the term ‘waters of the United 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

471

States’ beyond parody. The plain language of the statute simply does not authorize this 

‘Land is Waters’ approach to federal jurisdiction.” Rapanos, 547 U.S. at 734.

Although the majority of the justices of the Supreme Court agreed that the wetlands at 

issue in Rapanos were not “waters of the United States,” the Court did not agree as to 

why that was the case. The plurality opinion, authored by Justice Scalia, concluded that 

“waters of the United States” means only those waters that contain a “relatively 

permanent” flow, not an “occasional,” “intermittent,” or “ephemeral” flow and that 

wetlands must possess a “continuous surface connection” to these waters; a mere 

“hydrological connection” is insufficient. Id. at 742, 757. Justice Kennedy, in his lone 

concurring opinion, argued for a broader “significant nexus” test to include waters that 

are not relatively permanent or do not have a continuous surface connection to a 

traditionally navigable water. See Id. at 780 (Kennedy, J., concurring). Justice Kennedy 

defined a significant nexus as a water that “either alone or in combination with similarly 

situated [waters] in the region, significantly affects the chemical, physical, and biological 

integrity of other covered waters more readily understood as navigable.” Id.

The proposed rule relies heavily upon Justice Kennedy’s judicially-created significant 

nexus concept. The proposed rule essentially makes Justice Kennedy’s opinion the 

cornerstone for categorically asserting jurisdiction over many different types of 

hydrologic features (ephemeral drainages, or otherwise) that have only a tenuous 

hydrologic connection with traditionally navigable waters, interstate waters, or territorial 

seas. On a case-by-case basis, the proposed rule would apply the same significant nexus 

test to assert jurisdiction over features in the nebulous “other waters” category. The 

emphasis that EPA and the Corps place on the phrase “significant nexus” in formulating 

their proposed definition for waters of the United States imparts meaning to this phrase 

that is without consensus in the courts or the regulated community.

Of the nine Justices deciding Rapanos, only Justice Kennedy used the “significant nexus” 

test for defining waters of the United States. While his opinion is an important voice in 

establishing the scope of agency authority under the Clean Water Act, no other Justice 

joined his opinion–eight other justices saw the matter differently. In his dissent, Justice 

Stevens wrote, “I do not share [Justice Kennedy’s] view that we should replace 

regulatory standards that have been in place for over 30 years with a judicially crafted 

rule distilled from the term ‘significant nexus’ as used in SWANCC.” Id. at 807 (Stevens, 

J., dissenting). Justice Breyer also took issue with Justice Kennedy’s approach to have the 

Supreme Court legislate from the bench by adding “a ‘nexus’ requirement into the 

statute.” See Id. at 811 (Breyer, J., dissenting). Justice Scalia was so unimpressed with 

Kennedy’s significant nexus test that he disparaged the whole matter with a cutting 

“turtles all the way down” critique of the test’s endless chain of logical inconsistencies. 

See Id. at 754. GPA agrees that the agencies need to revisit the regulatory definition of 

waters so that it conforms to SWANCC and Rapanos. EPA’s and the Corps’ approach in 

defining the waters of the United States, however, is inherently problematic. The 

agencies’ emphatic reliance on the significant nexus test, which only one Justice chose to 

endorse, runs the risk of having the entire Clean Water Act framework for all wetlands 

and all tributaries fall apart during the inevitable siege of future court challenges. This 

entire effort will be in vain. (p. 2-3)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

472

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Briscoe Ivester & Bazel LLP (Doc. # 17451)

10.496 The proposed Rule Is fundamentally flawed in that it is predicated on Kennedy’s plainly 

wrong “significant nexus” invention. The EPA and Corps have made Justice Kennedy’s 

“significant nexus” invention the touchstone for CWA jurisdiction in their Proposed 

Rule. (79 Fed.Reg. 22188, 22192, 22263.) Because that notion does not remotely reflect 

Congress’s intent in the CWA, the Proposed Rule is fundamentally flawed. 

Justice Kennedy’s “significant nexus” idea is plainly wrong. First, as noted above, Justice 

Kennedy is the only justice on the Supreme Court who gives any credence to the idea. 

Moreover, this is not a circumstance where Justice Kennedy simply is the only one who 

has voiced approval of the idea while the others have expressed no opinion. To the 

contrary, all eight other justices have explicitly rejected the “significant nexus” notion as 

an invention solely of Justice Kennedy’s making and not grounded in the CWA. 

Second, the rejection of the “significant nexus” idea by eight justices operates with 

particular force in this instance because Justice Kennedy claims to derive the idea not 

from text in the CWA fashioned by Congress, but rather from text in an earlier Supreme 

Court decision, SWANCC, fashioned by the justices themselves. Among the eight justices 

who told Justice Kennedy in Rapanos that he misinterpreted the Court’s use of the 

“significant nexus” phrase in SWANNC, six participated in that case. One can reasonably 

presume that they know their own meaning—and that meaning is not what Justice 

Kennedy says. 

Third, there is no justification in law or logic to treat the view of one justice expressly 

rejected by all the others as the law of the land. This intuitively obvious conclusion is not 

in the least clouded or contradicted by any Supreme Court precedent on how to deal with 

fractured decisions in which no single opinion is supported by a majority of justices.

Some lower courts have looked to Marks v. United States, 330 U.S. 188 (1977), for 

guidance. In that case the Court noted: 

“When a fragmented Court decides a case and no single rationale explaining the 

result enjoys the assent of five Justices, ‘the holding of the Court may be viewed 

as that position taken by those Members who concurred in the judgments on the 

narrowest grounds.’” (Id. at 193.) 

The various rationales offered by different justices in Rapanos though are not linear or 

logical subsets that lend themselves to identifying some “narrowest grounds” of the sort 

the Marks Court had in mind. If anything, the Rapanos plurality opinion is the closest to a 

narrowest ground in the sense that it generally encompasses the narrowest range of 

waters—a range that Justice Kennedy (as well as the four dissenters) would agree is 

within the scope of what Congress intended. Certainly, Marks does not warrant resorting 

to some simple vote-counting exercise. Even less does it justify employing a votecounting rationale producing the perverse result that a single justice’s view expressly 

rejected by all the other justices should be treated as the law of the land. 

As the agencies have predicated the Proposed Rule on a single justice’s misunderstanding 

of the Court’s own words rather than any provision developed by Congress, they have no 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

473

reason to expect the Court to accord deference to their rulemaking if and when the Court 

later reviews it. (See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837 (1984).) 

Even if Kennedy’s “significant nexus” notion properly served to determine which 

wetlands are part of jurisdictional waters, it has no bearing on determining whether 

waters themselves are jurisdictional. As noted above, the Riverside Court brushed aside 

the government’s assertion that wetlands “adjacent” to waters of the United States should 

fall within CWA jurisdiction because Congress intended the Act to reach as far as the 

commerce power allows and, instead, held that Congress delegated to the agencies the 

function of drawing a line between land and water and the agencies’ decision to include 

“adjacent wetlands” on the water side of the line was reasonable. The SWANCC Court 

later observed that it was the “significant nexus” between wetlands and navigable waters 

that informed its reading of the CWA in this regard. (SWANCC, 531 U.S. at 167 (2001).) 

In his concurring opinion in Rapanos, Justice Kennedy treated this observation as a test 

of sorts to determine which particular wetlands are sufficiently related to navigable 

waters to be embraced within such waters when the agencies draw the line separating 

land and water. (Rapanos, 547 U.S. at 759-787.) 

Without explanation or justification, the agencies propose to repurpose the phrase 

“significant nexus” to serve as some sort of standard by which all waters are determined 

to be jurisdictional or not. Justice Kennedy, though, had no such purpose in mind when 

he devised his test for determining whether wetlands should be treated as jurisdictional 

waters. Indeed, the line drawing rationale underlying his concurring opinion in Rapanos

and the Court’s unanimous decision in Riverside has no bearing and no plausible 

application to the determination whether waters themselves are subject to the agencies’ 

regulatory jurisdiction under the CWA. 

The closest the agencies have come to explaining their attempt to use the “significant 

nexus” phrase in a way and context unrelated to how Justice Kennedy used it is to baldly 

assert: “While Justice Kennedy focused on adjacent wetlands in light of the facts of the 

cases before him, it is reasonable to utilize the same standard for tributaries.” (79 

Fed.Reg. 22188, 22204.) Why the agencies suppose this to be “reasonable,” they do not 

say. Certainly, the line-drawing rationale has no application apart from ascertaining 

whether particular wetlands are part of waters, so how and why it is reasonable to 

“utilize” the significant nexus term in other contexts for other purposes is not apparent. 

Moreover, removing the phrase from the context of drawing a line between land and 

water and proposing to use it for some different purpose raises questions about what the 

agencies suppose the phrase should mean in this different context. In repurposing the 

phrase, the agencies have rendered its meaning uncertain—even more uncertain than it 

already was. 

In the process, the agencies have fashioned a rule that effectively reaches for the outer 

limits of the commerce power notwithstanding the Supreme Court’s repeated rejection of 

that rationale. As the agencies explain: 

“The agencies also propose that all waters that meet the proposed definition of 

tributary are " waters of the United States" by rule, unless excluded under section 

(b), because tributaries and the ecological functions they provide, alone or in 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

474

combination with other tributaries in the watershed, significantly affect the 

chemical, physical, and biological integrity of traditional navigable waters, 

interstate waters, and the territorial seas.” (79 Fed. Reg. 22201.) 

The problem with this approach is that it includes too much. Uplands significantly affect 

waters of the United States. Rain falls on the land, flows across the land, and washes 

substances on the land into the waters. Rain washes into traditionally navigable waters 

dog droppings off urban streets, cow droppings off agricultural fields, and bear droppings 

from the woods. Rainwater flowing across the land- that is, across uplands----carries 

bacteria, nutrients, other organic matter, and sediment to these navigable waters, each of 

which under natural conditions contributed to the natural condition of the receiving 

water. When a drainage basin is developed, the types, amounts, and proportions of 

materials carried into traditionally navigable waters may change. The purpose of the 

stormwater program is to prevent these upland contributions from having too detrimental 

an effect on the ambient waters. But although it is indisputably true that matter washed in 

from uplands affect traditionally navigable waters, and that one could describe this effect 

as a "significant nexus" between uplands and waters, it would be foolish to say that 

because there is a significant nexus, all uplands must be classified as waters of the United 

States. (p. 6-9)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Washington Farm Bureau (Doc. #3254.2)

10.497 Thus, Washington Farm Bureau strongly opposes these over-reaching proposals as they 

can, as drafted, be read to fundamentally expand federal agency jurisdiction beyond 

anything contemplated by the 1972 Congress that enacted the federal Clean Water Act 

(CWA). Two U.S. Supreme Court decisions (SWANCC in 2001, and Rapanos in 2006) 

have reaffirmed that federal CWA jurisdiction is limited to pollution of “navigable 

waters” of the United States and does not include all waters. The court roundly rejected 

the notion that “any” hydrological connection to navigable waters (no matter how 

tenuous) sufficed to trigger CWA jurisdiction, rejecting EPA’s “land = waters” approach. 

(p. 1)

Agency Response: The rule is not based on "any" hydrologic connection. 

Preamble, III and IV, Technical Support Document, II. The rule is consistent with 

the statute and the caselaw. Technical Support Document, I.A. and C.

National Sorghum Producers (Doc. #10847)

10.498 It is clear that this definition would not satisfy the plurality opinion in Rapanos. But, we 

also believe there is strong indication that neither would the definition satisfy Justice 

Kennedy. The parcels of land in question in Rapanos included: (1) wetlands with a 

surface water connection to tributaries of a river that flow into another river and 

ultimately into one of the Great Lakes; (2) wetlands with a surface water connection to a 

drain that carries water into a navigable river; (3) wetlands with a surface water 

connection to a river that flows into a Great Lake; (4) forested wetlands (located one mile 

from a popular boating and fishing lake that produces some 48 percent of the sport fish 

caught in the Great Lakes) separated from a ditch by a berm which ordinarily if not 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

475

always blocks surface water flow from the wetlands to the ditch. The ditch connects with 

a drain which carries water continuously throughout the year, emptying into a creek that 

empties into the popular lake. Under the proposed rule’s definition of “tributaries” the 

case for jurisdiction over each of these seems clear cut. However, Justice Kennedy joined 

in a majority opinion in vacating the lower court’s ruling because EPA and the Corps had 

not demonstrated a significant nexus between the lands in question in Rapanos and 

jurisdictional waters. 

Justice Kennedy cited the ruling in Solid Waste Agency v. United States Army Corp of 

Engineers (SWANCC) in which the Court held that “to constitute ‘navigable waters’ 

under the Act, a water or wetland must possess a ‘significant nexus’ to waters that are or 

were navigable in fact or that could reasonably be so made.” However, the proposed rule 

does not require a “significant nexus” test to be met with respect to “waters” to be 

brought under federal regulation when the basis for their inclusion is that they are 

“tributaries”. This is notable given Justice Kennedy’s opinion that the significant nexus 

test helped the Court in SWANCC avoid applications involving waters without a 

significant nexus “that appeared likely, as a category, to raise constitutional difficulties 

and federalism concerns.” 

In taking issue with an aspect of the plurality opinion, Justice Kennedy offers some 

important insight into his own views on the reaches of the Clean Water Act when he 

stated, “On the other hand, by saying the Act covers wetlands (however remote) 

possessing a surface water connection with a continuously flowing stream (however 

small), the plurality’s reading would permit applications of the statute as far from 

traditional federal authority as are the waters it deems beyond the statute’s reach.” The 

clear implication is that, in Justice Kennedy’s view, the plurality opinion risked an over

inclusive view of federal jurisdiction in that instance both because of the remoteness of 

the wetland and the insignificance of the stream. In reproaching the minority opinion, 

Justice Kennedy states, “Although the Court has held that the statute’s language invokes 

Congress’ traditional authority over waters navigable in fact or susceptible of being made 

so...the dissent would permit federal regulation whenever wetlands lie alongside a ditch 

or drain, however remote and insubstantial, that eventually may flow into traditional 

navigable waters. The deference owed to the Corps’ interpretation of the statute does not 

extend so far.” Yet, the reach of the proposed rule seems to blow right past Justice 

Kennedy’s admonitions. (p. 2-3)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.499 EPA and the Corps may well intend to exercise discretion to taper the actual application 

of the proposed rule to something more approximate to Justice Kennedy’s concurring 

opinion but, on its face, the proposed rule’s reach appears to be nearly limitless and in 

this sense and only in this sense can it be said to add clarity. That is to say, every “water” 

is a water of the United States. This level of agency discretion is of deep concern 

particularly due to the civil and criminal penalties involved for a violation of the Clean 

Water Act. To read the rule as it is proposed but then to trust the EPA and the Corps to 

not fully exercise its jurisdiction to the full extent that the rule provides would require 

tremendous faith indeed. (p. 4)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

476

Agency Response: The agencies have provided additional clarity and limitations. 

The he rule is consistent with the statute and the caselaw. Technical Support 

Document, I.A. and C

Missouri Agribusiness Association (Doc. #13025) 

10.500 The new proposed rule should meet both the Kennedy and plurality opinions in Rapanos

and the ruling in SWANCC. To be true to these opinions, the agencies should specifically 

follow this basic premise: WOTUS are extended to non-navigable waters only if they 

exhibit a relatively permanent flow and bear a "significant nexus" to a traditional 

navigable waterway; and, jurisdiction exists over wetlands only if a continuous surface 

water connection exists between it and a relatively permanent waterbody, and the wetland 

bears a "significant nexus" to a traditional navigable waterway. (p. 11)

Agency Response: No Circuit Court has followed the recommendation of the 

commenter. The rule is consistent with the statute and the caselaw. Technical 

Support Document, I.A. and C.

National Cattlemen’s Beef Association (Doc. #8674)

10.501 ACCW assert that the proposed rule expands the federal government’s jurisdiction 

beyond the CWA’s authority as provided by Congress. The proposed rule would expand 

the authority of the agencies to cover thousands, if not millions, of new features through 

the agencies’ use of broad and ambiguous language, making it a limitless expansion of 

authority that cannot be supported by the CWA or the Commerce Clause of the U.S. 

Constitution. 

Since the inception of the CWA the agencies’ jurisdiction has been limited. In two 

relatively recent Supreme Court decisions, the agencies were told by the high court that 

their interpretation was beyond the scope of the CWA, but yet again the agencies are 

claiming limitless authority over the nation’s waters. It is a blatant misrepresentation for 

the agencies to claim the proposed rule is not any more authority than the agencies have 

claimed in the past. Perhaps the agencies should be reminded that they were wrong in 

their belief of their scope of jurisdiction twice in the past fifteen years. In SWANCC and 

Rapanos the Supreme Court was clear that the agencies never had authority under the 

CWA to regulate all waters. The agencies’ authority was never as broad as the Migratory 

Bird Rule, and the agencies’ usage of such a rule was illegal. The proposed rule is an 

expansion from the current regulations and the agency should be transparent enough to 

admit it. 

In the proposed rule the agencies have decided to run away with the Kennedy 

concurrence in Rapanos as their sole method of determining jurisdiction for nonnavigable waters. While ACCW disagree that the agencies legally are allowed to 

completely disregard the plurality opinion authored by Justice Scalia, the agencies still 

failed to stay within the bounds of the Kennedy concurring opinion. In Kennedy’s own 

words, “[i]n some instances, as exemplified by Riverside Bayview, the connection 

between a non-navigable 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.” (Rapanos, J. Kennedy at 10). It is a far cry from Justice Kennedy’s “some 

instances” to wrap all ephemeral streams, isolated ponds, wetlands and ditches under the 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

477

CWA as per se jurisdictional through the tributaries and adjacent waters categories, or 

provide an Other Waters category that is so vague as to be an administratively convenient 

“catch all” category. Neither the plurality nor Kennedy’s concurrence can support such a 

broad theory of jurisdiction. (p.4-5)

Agency Response: The rule is narrower than the scope of the existing rule and is 

consistent with the statute and the caselaw. Technical Support Document, I.

Western Growers Association (Doc. #14130)

10.502 In Justice Kennedy’s concurring opinion in Rapanos, he submits that that the agencies

could through regulation “identify categories of tributaries that, due to their volume of 

flow (either annually or on average), their proximity to navigable waters, or other 

relevant considerations, are significant enough that wetlands adjacent to them are likely, 

in the majority of cases, to perform important functions for an aquatic system 

incorporating navigable waters.”924 Yet in the Rapanos case, Kennedy notes that the 

Corps’ “existing standard for tributaries, however, provides no such assurance.”925

Indeed, Justice Kennedy goes on to say with regard to the Corps’ existing standard that 

“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 

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.”926 Justice 

Kennedy then briefly discusses an issue not before the Court, the issue of how the Corps 

might regulate wetlands that are not adjacent to navigable waters; he writes: “[a]bsent 

more specific regulations, however, 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.”927 Taken together, Justice 

Kennedy’s explanation is critical to understanding the framework into which the agencies 

define “significant nexus” as well as what level of specificity is required in applying that 

test. The agencies must clearly explain their claims of jurisdiction- whether wetlands 

adjacent to traditional navigable in fact waters OR wetlands adjacent to non-navigable 

waters constitutes a “significant nexus”. In either case, Kennedy is clear that the 

standards created by the agencies cannot be overly broad. In applying Kennedy’s 

admonition to the proposed application of significant nexus to the agencies’ proposed 

analysis of how they would determine jurisdiction for cases under the ‘other waters’ 

category it appears that the agencies have gone beyond the Supreme Court’s limits.

In writing the proposed rule the agencies adopt a concept of significant nexus in order to 

inform the how they will make jurisdictional determinations for land that falls outside 

any other category and thus falls into a catch-all “other waters” category.928 More 

 

924 Rapanos v. United States, 547 U.S. 715, 781 (2006).

925 Id.

926 Id.

927 Id. at 782.

928 U.S. Army Corps of Engineers & U.S. EPA, Definition of “Waters of the United States” Under the Clean Water

Act; Proposed Rule, 79 Fed. Reg. 22,188, 22,211-14 (April 21, 2014). 57 Id. at 22,213.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

478

specifically, the agencies propose that in making a determination that in part it will 

require “an evaluation of either a single water or group of waters (i.e., a single landscape 

unit) in the region that can reasonably be expected to function together in their effect on 

the chemical, physical, or biological integrity of downstream traditional navigable waters, 

interstate waters, or the territorial seas....In determining whether groups of other waters 

perform ‘‘similar functions’’ the agencies would also consider functions such as habitat, 

water storage, sediment retention, and pollution sequestration. These and other relevant 

considerations would be used by the agencies to document the hydrologic, geomorphic 

and ecological characteristics and circumstances of the waters.”929 These factors would 

allow the agencies to examine not only a single specific unit but allow them to infinitely 

aggregate other “similarly situated” units in order to evaluate jurisdiction under the catch 

all “other waters” category.58 The agencies proposed description of how they will make 

evaluations provides absolutely no clarity to the regulated community and covers so 

many variables that nearly any body of water could be found jurisdictional. For practical 

purposes no limits would exist to a jurisdictional finding which would seem to directly 

contradict Justice Kennedy’s aforementioned language in Rapanos. (p. 17-19)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The agencies have established additional 

clarity and limitations in the rule. Preamble.

National Alliance of Forest Owners (Doc. #15247)

10.503 First, the Agencies erroneously extend the “significant nexus” discussions in prior 

Supreme Court precedents to waters other than wetlands. Dating back to Riverside 

Bayview, the Supreme Court has only spoke of “significant nexus” when discussing the 

connection between wetlands and “navigable waters.”930 Not surprisingly then, Justice 

Kennedy’s opinion in Rapanos focused on whether wetlands meet the significant nexus 

test.931 Similarly, at least one federal appeals court has warned against extending 

application of the “significant nexus” beyond just wetlands, to cover all waters.932 In light 

of these precedents, the Agencies cannot reasonably extend the significant nexus test to 

non-wetlands such as ephemeral streams or isolated ponds. 

Second, the proposed rule does not identify any practical, scientifically-based methods 

for evaluating significance. There is no substantive discussion of either methods that 

could be developed to measure (i.e., quantify) connections among wetlands, waters, and 

traditional navigable waters or criteria that policy makers might select for distinguishing 

significant connections from other connections. Instead, the proposed rule either 

categorically concludes that “significance” is present or merely provides a laundry list of 

factors that might provide evidence of chemical, physical, or biological connections 

without explaining how the Agencies will determine significance based on those 

factors.933 There are so many possible combinations of the different types of connections 

that may be present that regulators will have no problem concluding that a significant 

 

929 Id. at 22,213.

930 See Riverside Bayview, 474 U.S. at 121; SWANCC, 531 U.S. at 167-68.

931 See Rapanos, 547 U.S. at 779-80, 782.

932 See San Francisco Baykeeper v. Cargill Salt Division, 481 F.3d 700, 707 (9th Cir. 2007).

933 See 79 Fed. Reg. at 22,213-14.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

479

nexus exists. Distinguishing between insignificant and significant connections is of 

critical importance. Otherwise, if the Agencies can assert CWA jurisdiction over all 

connections, such a rule would reopen the door to the “any hydrological connection” 

standard that was struck down in Rapanos. 

Third, the Agencies interpret the significant nexus language from Supreme Court 

precedents to allow for the aggregation of all “similarly situated” water features in a 

watershed.934 This aggregation approach, however, does not appear to be supported by 

Justice Kennedy’s opinion in Rapanos, and it certainly does not meet the standard 

espoused by the plurality. Justice Kennedy spoke approvingly of an aggregation analysis 

to determine the impact of wetlands on downstream waters because of wetlands’ 

collective contribution in a given region to the specific functions of “pollutant trapping, 

flood control, and runoff storage.”935 Justice Kennedy gave no indication whatsoever that 

an aggregation analysis would be appropriate for other waters such as tributaries or 

ponds. The plurality, in turn, held that only wetlands with “a continuous surface 

connection” to bodies that are ‘waters of the United States’ in their own right, so that 

there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such 

waters and covered by the CWA.”936 But even if the Agencies could appropriately 

aggregate more than just wetlands, such aggregation would still fail to meet the 

plurality’s demand that a water of the United States have relatively permanent flow.937 (p. 

8-9)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Eddyann U. Filippini Family Trust (Doc. #18873)

10.504 The primary case on this issue is that of Rapanos v. United States.

938

 This case involved 

wetlands near ditches that eventually drain to "traditional navigable waters." The United 

States brought suit against certain private individuals for backfilling some of the wetland 

areas without a permit. The District Court, and Sixth Circuit Court of Appeals found that 

the EPA had jurisdiction over the water, however, the United States Supreme Court 

reversed and found no jurisdiction existed. The plurality opinion found that only waters 

or wetlands with "relatively permanent, standing or continuously flowing bodies of 

water" such as "oceans, rivets, lakes," with connection to navigable waters could be under 

the jurisdiction of the EPA.939 And the term "Waters of the United States" does not 

include "channels through which water flows intermittently or ephemerally, or channels 

that periodically provide drainage for rainfall."940 Additionally, it was stated that water is 

not under the jurisdiction of the United States "based on a mere hydrologic 

connection."941 Instead, there must be a "continuous surface connection."942 The 

 

934 See id. at 22,204. 

935 547 U.S. at 779.

936 Id. at 742.

937 Id. at 739.

938 Rapanos v. United States, 547 U.S. 715 (U.S. 2006).

939 Id. 

940 Id. 

941 Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

480

"significant nexus" standard used in the proposed rule clearly over-steps the constraints 

placed on the EPA's jurisdiction by the Supreme Court. (p. 3)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Airlines for America (Doc. #15439)

10.505 The significant nexus test is not sufficient to determine Clean Water Act jurisdiction. The 

opinions in SWANCC or Rapanos cannot be read to hold that the extent of jurisdiction 

Congress granted the Agencies under the Act through the phrase “waters of the US” is 

conclusively resolved through a purely scientific inquiry into whether a “significant 

nexus” to navigable waters exists. Even Justice Kennedy, who adopted that jurisdictional 

test in Rapanos, was careful to explain that the test could be applied in the specific case 

presented precisely because it would “raise no serious constitutional or federalism 

difficulty.” 547 US at 782. Similarly, SWANCC and Rapanos clearly establish that 

supervening legal principles, be they constitutional or statutory, continue to operate and 

must be considered even where the significant nexus test is employed. Stated differently, 

neither the Court nor Justice Kennedy intended the “significant nexus” test to supplant 

other supervening constitutional and statutory legal principles relevant to determining the 

extent of the Agencies’ jurisdiction under the Act. Any attempt to define the extent of 

their jurisdiction through regulatory action must acknowledge the limits such principles 

impose on the Agencies’ statutory authority.

This principle is important here because the Federal Aviation Act establishes certain 

national policies with respect to aviation – including an absolute priority on aviation 

safety – that have the potential to conflict with the objectives of the Clean Water Act in 

some circumstances. Courts have clearly established that where Congress has granted 

potentially overlapping authority to two or more agencies, the jurisdiction of one agency 

will be circumscribed where there is a “plain” or “clear repugnancy” between the 

competing authorizing statutory schemes, or where two federal provisions are “clearly 

incompatible.”943 Our concern is not that the objectives of the Clean Water Act cannot be 

reconciled to and achieved consistent with the objectives of federal aviation statutes. 

Rather, the concern is that, by adopting a purely scientific definition of Clean Water Act 

jurisdiction in the rule, the Agencies purport to eliminate any opportunity to assess, on a 

case-specific basis, whether the mandates of the Clean Water Act or the Federal Aviation 

Act conflict and, if so, which controls.944 Without a clear procedure by which to 

determine whether those statutes can be harmonized, the definition of WOTUS proposed 

by the Agencies would purport to permanently foreclose that important and legally 

necessary inquiry. (p. 7)

 

942 Id. 

943 See Credit Suisse Securities (US) v. Billing, 551 U.S. 264 (2007) (finding federal securities law to preclude 

application of federal antitrust law provisions).

15 A4A notes that a case-specific basis could be categorically determined up front for common situations

944 See Credit Suisse Securities (US) v. Billing, 551 U.S. 264 (2007) (finding federal securities law to preclude 

application of federal antitrust law provisions).

15 A4A notes that a case-specific basis could be categorically determined up front for common situations
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

481

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The scope of the Federal Aviation Act is 

beyond the scope of this rule.

10.506 Supreme Court Jurisprudence recognized that the “significant nexus” test is subject to 

and conditioned by supervening legal principles. The Agencies read SWANCC and 

Rapanos as establishing a one-step test for WOTUS that relies exclusively on application 

of the “significant nexus” standard. That reading is incorrect and does not accurately 

reflect the opinions of the Court.

Justice Kennedy appears to have intended that the “significant nexus” test provide a 

generalized rule for determining the extent of the Agencies’ jurisdiction under the Act.945

Still, even he recognizes that the test does not and cannot be said to resolve the 

jurisdictional issue in any and all cases. Justice Kennedy explicitly acknowledges that 

“[t]o be sure,” the significant-nexus requirement may not align perfectly with the 

traditional extent of federal authority” and that test does not foreclose “[t]he possibility of 

legitimate Commerce Clause and federalism concerns in some cases.” 547 U.S. at 782-83 

. Justice Kennedy even acknowledges that the test cannot be expected to categorically 

resolve the jurisdictional issue in all cases involving the type of waters specifically at 

issue in Rapanos: “Yet in most cases regulation of wetlands that are adjacent to 

tributaries and possess a significant nexus with navigable waters will raise no serious 

constitutional or federalism difficulty.” 547 U.S. at 782. Similarly, he states the SWANCC

Court “interpret[ted] the Act to require a significant nexus with navigable waters,”946

because the test “avoided applications—those involving waters without a significant 

nexus—that appeared likely, as a category, to raise constitutional difficulties and 

federalism concerns.” 547 U.S. at 776. Thus, while Justice Kennedy expects that the 

“significant-nexus test itself prevents problematic applications of the statute,” it is also 

clear that he understands the test remains circumscribed by other supervening legal 

 

945 Justice Kennedy did, however, carefully define the question presented in Rapanos: “These consolidated cases 

require the Court to decide whether the term ‘navigable waters’ in the Clean Water Act extends to wetlands that do 

not contain and are not adjacent to waters that are navigable in fact.” 547 U.S. at 759. Similarly, the Justices have 

carefully scoped the question presented in all other major opinions addressing the extent of the Agencies’ 

jurisdiction under the Act: Justice Scalia’s plurality opinion in Rapanos, 547 U.S. at 729 (“In these consolidated 

cases, we consider whether four Michigan wetlands, which lie near ditches or man-made drains that eventually 

empty into traditional navigable waters, constitute ‘waters of the United States’ within the meaning of the Act”); 

Chief Justice Rehnquist in SWANCC, 531 U.S. 159 (“The [COE] has interpreted §404(a) to confer federal authority 

over an abandoned sand and gravel pit in northern Illinois which provides habitat for migratory birds. We are asked 

to decide whether the provisions of §404(a) may be fairly extended to these waters”); Justice White in United States 

v. Riverside Bayview Homes: 474 U.S. at 123 (“This case presents the question whether the [Act]...authorizes the 

Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent 

to navigable bodies of water and their tributaries”). It is clear that neither Justice Rehnquist nor Justice Scalia 

endorsed the use of the significant nexus test as a generally applicable test for determining jurisdiction in all cases 

under the Act. Justice Rehnquist helpfully and succinctly explained in SWANCC “[i]t was the significant nexus 

between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes” 

(531 U.S. at 167), to explain that whether a “significant nexus” existed was not relevant to the analysis. Justice 

Scalia’s plurality opinion in Rapanos also makes this point: “SWANCC found such ecological considerations 

irrelevant to the question” presented there. 547 U.S. at 741-42).

946 As we made clear above, we do not agree SWANCC required finding a “significant nexus”; rather SWANCC

found this inquiry irrelevant to the issue presented there.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

482

principles. Certainly, his opinion cannot be read as establishing a test that categorically 

resolves the jurisdictional issue, even in cases where it would require “problematic 

applications of the statute” or raise “serious” or “legitimate” constitutional issues (e.g., 

Commerce Clause or federalism concerns). To the contrary, Justice Kennedy’s opinion 

acknowledges that the test will not resolve all legal issues in all situations and conceives 

the “significant nexus” test as a pragmatic formulation that can avoid “problematic 

applications of the statute,” and will do so in “most” situations involving adjacent 

wetlands. Stated differently, the “significant nexus” test is not conceived as categorically 

supplanting legitimate statutory or constitutional limitations in its application, but rather 

is conditioned upon satisfying those limitations.947

Jurisdiction under the Act cannot be resolved – as the Proposed Rule asserts – through a 

purely scientific inquiry into whether a “significant nexus” with navigable waters exists. 

It also requires a legal inquiry into whether this scientific inquiry is sufficient to resolve 

“legitimate” or “serious” statutory or constitutional issues. United States v. Riverside 

Bayview Homes, underscores the Court’s conception of the relationship between 

ecological/scientific judgments and legal judgments. The Court endorsed “the Corps' 

ecological judgment about the relationship between waters and their adjacent wetlands” 

as “an adequate basis for a legal judgment that adjacent wetlands may be defined as 

waters under the Act.” 474 U.S. 121, at 134. The question is whether the scientific 

inquiry is sufficient as a legal matter – science does not define the extent of jurisdiction; 

rather the law defines whether science can be “an adequate basis” for determining 

jurisdiction. In the context of Riverside Bayview Homes, science was an “adequate basis” 

for determining jurisdiction over adjacent wetlands at issue in that case. As Justice Scalia 

points out in Rapanos, however, “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 ‘waters of the United States.’” 547 U.S. at 741. Certainly, the Court has never 

stated, and no opinion – including Justice Kennedy’s opinion in Rapanos – holds that a 

scientific inquiry into whether a “significant nexus” exists is an “adequate basis” for 

determining whether assertion of jurisdiction conflicts or potentially conflicts with 

imperatives Congress has established in other statutes (e.g., maintenance of aviation 

safety). Indeed, it is nonsensical to assert that a scientific inquiry could resolve such legal 

issues. Accordingly, the Court – including Justice Kennedy in Rapanos – has always 

acknowledged that the Agencies’ jurisdiction under the Act, and the sufficiency of any 

test designed to determine jurisdiction, remains subject to and conditioned by 

 

947 Justice Rehnquist and Scalia would certainly agree that any “test” of jurisdiction under the Act is circumscribed 

by supervening legal principles. In SWANCC, Chief Justice Rehnquist declined to accept the Corps’ assertion of 

jurisdiction that “push[ed] the limit of congressional authority” because Congress had not provided a “clear 

indication” of its intent to do so in the Act. 531 U.S. at 173. Justice Scalia, in his plurality opinion in Rapanos also 

emphasized the Court could not defer to an agency’s interpretation of its jurisdiction as authorizing an “intrusion 

into traditional state authority” or one that “presses the envelope of constitutional validity” without a “clear and 

manifest” statement of congressional intent to confer such jurisdiction. 547 U.S. at 738.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

483

supervening legal principles that cannot be displaced or resolved by a purely scientific 

inquiry.948

Thus, while the “significant nexus” test arguably may be applicable (and perhaps 

dispositive) in many cases, the Court has recognized that there are supervening legal 

principles not resolved by the “significant nexus” test that must be considered in 

determining jurisdiction under the Act. (p. 7-9)

Agency Response: The rule is consistent with the statute, the caselaw and the 

Constitution. Technical Support Document, I.A. and C.

10.507 Like the doctrinal and constitutional factors recognized by the Court, statutory constraints 

on the interpretation of the Clean Water Act also are beyond the Agencies’ power to 

obviate by rule. It is ensuring the ability to consider and, where necessary, enforce those 

statutory constraints that is the primary concern of A4A and its members.

Congress has long recognized that commercial aviation safety and the efficiency of the 

National Airspace System (“NAS”) depends on the application of a consistent set of 

regulatory requirements by a primary federal agency – the FAA – with the necessary 

expertise and capability to develop and administer those requirements. Congressional 

policy further recognizes that the successful integration of each airport into the NAS 

implicates not only aircraft operations, but also infrastructure, facilities, and support 

operations that most appropriately fall within the primary and exclusive jurisdiction of 

the FAA.

To that end, the Federal Aviation Act establishes “a uniform and exclusive system of 

federal regulation” of aircraft operations to be administered by the FAA. Burbank v. 

Lockheed Air Terminal, Inc., 411 U.S. 624, 639 (1973) (emphasis added).949 Congress 

has affirmed repeatedly its intent that this system of federal regulation maintain the 

primacy of safety950 and accommodate, to the maximum extent possible, demand for air 

transportation.951 Congress also has affirmed the need to meet environmental objectives 

consistent with maintaining safety and ability of the NAS to accommodate the needs of 

 

948 See also City of Arlington v. FCC, 569 U.S. at 16 (slip opinion), holding courts must apply Chevron deference to 

agency determinations of their own jurisdiction, but admonishing that courts must police agency assertions of 

jurisdiction by “taking seriously, and applying rigorously, in all cases, statutory limits on Agencies’ authority.”

949 20 See also Abdullah v. American Airlines, Inc.,181 F.3d 363, 370 n.10 (3d Cir. 1999)(aviation regulation is an 

area where “[f]ederal control is intensive and exclusive.”)(quoting Northwest Airlines, Inc. v. Minnesota, 322 U.S. 

292, 303 (1944)).

950 See e.g. 49 U.S.C. § 40101(a) [emphasis added]: “[T]he Secretary of Transportation shall . . .

(1) assign[] and maintain[] safety as the highest priority in air commerce.

(3) prevent[] deterioration in established safety procedures, recognizing the clear intent, encouragement, and 

dedication of Congress to further the highest degree of safety in air transportation and air commerce, and to maintain 

the safety vigilance that has evolved in air transportation and air commerce and has come to be expected by the 

traveling and shipping public.

See also § 47101(a) [emphasis added]: “It is the policy of the United States – (1) that the safe operation of the 

airport and airway system is the highest aviation priority.”

951 See, § 47101(a): “It is the policy of the United States –... (7) that construction and improvement projects that 

increase the capacity of facilities to accommodate passenger and cargo traffic be undertaken to the maximum 

feasible extent so that safety and efficiency increase and delays decrease.” See also e.g., 49 U.S.C. § 40101(a)(4), 

(6), (7), (10) and (11).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

484

the nation’s economy and culture.952 It is without question, however, that the FAA wields 

primary and exclusive jurisdiction over air safety and the operation of the NAS.953

This pervasive federal regulatory scheme extends to both aircraft in flight and aircraftrelated operations on the ground. See, e.g., 49 U.S.C. § 40103(b)(2)(B)-(C); BurbankGlendale-Pasadena Airport Authority v. City of Los Angeles, 979 F.2d 1338, 1341 (9th 

Cir. 1992) (Federal Aviation Act preempts any regulatory “interference” with the 

operations of aircraft on the ground); City of Houston v. FAA, 679 F.2d 1184, 1195 (5th 

Cir. 1982) (FAA has regulatory authority “not only [over] the corridors of air traffic, but 

the use of airports as well”).

The nation’s commercial aircraft are part of an intricate, interconnected, time-sensitive 

network in which the smooth and seamless movement of aircraft is critical to keeping 

flights running safely and efficiently. Aircraft operate on tightly orchestrated schedules 

where reliability and performance are critical to the safety and efficiency of the NAS, a 

realm regulated pursuant to the exclusive jurisdiction and authority of the FAA. This is 

not to the exclusion of sound environmental management or regulation, as environmental 

impacts associated with airport deicing can and must be appropriately addressed. Indeed, 

an array of environmental impacts have been and continue to be successfully addressed 

consistent with FAA’s exclusive authority over aircraft operations and the NAS – this 

includes water quality impacts, which have been and continue to be appropriately and 

successfully addressed through the NPDES program.

By its very nature, however, the potential expansion of WOTUS and NPDES permitting 

to newly-designated waters within and beyond the airfield cannot be implemented 

without affecting or dictating aircraft operations and affecting management of the NAS.

This is not the fault of the program, but rather a consequence of the irreconcilable 

priorities of the two statutes at issue – the Clean Water Act and the Federal Aviation Act 

– and the effect the Agencies’ expansive WOTUS definition proposal would have.

Establishing newly-jurisdictional water bodies inescapably would require the issuance of 

NPDES and Section 404 permits to authorize discharges into those waters. These permits, 

in turn, would impose technology- and water quality-based standards through the

mechanism of effluent limitations and other conditions to protect the natural and habitat 

value of those waters. Indeed, protection of habitat value is such a cornerstone of the 

Agencies’ assessment of a water’s “significant nexus” with traditionally jurisdictional 

waters that the word “habitat” appears over 100 times in the preamble to the Proposed 

Rule. It is that very focus that lays bare the conflict between what the Agencies propose 

and the federal aviation mandates.

The mandates to protect the ecological value and services provided by natural waters is 

inherent in the Clean Water Act, but can, in certain cases, be incompatible with the 

 

952 See, § 47101(a): “It is the policy of the United States – . . . (6) that airport development projects under this 

subchapter provide for the protection and enhancement of national resources and the quality of the environment in 

the United States.”

953 See, 49 U.S.C. §40103(b): “The Administrator of the [FAA] shall develop plans and policy for the use of the 

navigable airspace and assign by regulation and order the use of the airspace necessary to ensure the safety of 

aircraft and the efficient use of airspace.”
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

485

imperatives established by the Federal Aviation Act. There, the imperatives include the 

(a) safety of aircraft and airport operations, (b) efficiency and reliability of aircraft 

operations, and (c) effect on the NAS. One statute seeks to protect habitat values of 

waters; the other mandates that the habitat values be suppressed when in proximity to 

commercial aviation. A simple example will help to illustrate the fundamental 

impossibility in some cases of fully satisfying these two masters.

Avoidance of wildlife hazards, especially from birds and terrestrial animals that are 

attracted to the habitat provided by water features, has long been a safety priority of the 

aviation industry and of the FAA. Recognizing the importance of keeping wildlife 

hazards away from aircraft, EPA signed a Memorandum of Agreement (“MOA”) in 

which it agreed:

“that a variety of other land uses (e.g., storm water management facilities, 

wastewater treatment systems, landfills, golf courses, parks, agricultural or 

aquacultural facilities, and landscapes) attract hazardous wildlife and are, 

therefore, normally incompatible with airports. Accordingly, new, federallyfunded airport construction or airport expansion projects near habitats or other 

land uses that may attract hazardous wildlife must conform to the siting criteria 

established in the FAA Advisory Circular (AC) 150/5200- 33, Section 1-3.”

954

In the referenced section 1-3 of AC 150/5200-33,26 FAA recommends that any wildlife 

attractant (including, as noted in the above MOA, stormwater management facilities like 

ponds and stormwater treatment facilities) be placed at least 10,000 feet away from the 

aircraft operations area (“AOA”)955 for any airport serving jet aircraft and five statute 

miles away “if the attractant could cause hazardous wildlife movement into or across the 

approach or departure airspace.”956 The FAA is even more definitive with respect to “new 

wastewater treatment facilities,” in that it “strongly recommends against the 

construction” of such facilities within 10,000 feet of the AOA and instructs that “airport 

operators should voice their opposition to such facilities if they are in proximity to the 

airport.”

 

954 Memorandum of Agreement Between the Federal Aviation Administration, the U.S. Air Force, the U.S. Army, 

the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the U.S. Department of 

Agriculture to Address Aircraft-Wildlife Strikes, Section l.J. (signed by EPA Assistant Administrator for Water on 

January 17, 2003). 

955 Relevant definitions are provided in AC 150/5200-33B, Appendix 1 as follows:

Air operations area. Any area of an airport used or intended to be used for landing, takeoff, or surface 

maneuvering of aircraft. An air operations area includes such paved areas or unpaved areas that are used or 

intended to be used for the unobstructed movement of aircraft in addition to its associated runway, 

taxiways, or apron.

...

Wastewater treatment facility. Any devices and/or systems used to store, treat, recycle, or reclaim 

municipal sewage or liquid industrial wastes, including Publicly Owned Treatment Works (POTW), as 

defined by Section 212 of the Federal Water Pollution Control Act (P.L. 92-500) as amended by the Clean 

Water Act of 1977 (P.L. 95-576) and the Water Quality Act of 1987 (P.L. 100-4). This definition includes 

any pretreatment involving the reduction of the amount of pollutants, the elimination of pollutants, or the 

alteration of the nature of pollutant properties in wastewater prior to or in lieu of discharging or otherwise 

introducing such pollutants into a POTW. (See 40 CFR Section 403.3 (q), (r), & (s)).

956 AC 150/5200-33B at ¶¶ 1-3 and 1-4.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

486

Given that the Proposed Rule may create additional jurisdictional and, thus, protected 

waters, it by definition runs the risk of establishing or preserving inappropriate habitats 

near airfields, and of requiring the placement of treatment ponds and other wastewater 

treatment facilities squarely within those AOAs to meet newly-required permits’ terms. 

Yet, despite EPA’s having signed the MOA, EPA’s Proposed Rule does not address the 

potential bird strike hazard issue or even list AC 150/5200-33 as among those it 

considered in the rulemaking.

In some cases, of course, such concerns arguably could be addressed without violating 

the safety principles announced in the MOA or in AC 150/5200-33. Nonetheless, the 

recent “Miracle on the Hudson” incident957 highlights the fact that it is imperative that 

safety issues are evaluated and addressed at all airports.

The Proposed Rule nowhere discusses the means by which the inherently inflexible water 

quality protections demanded by the Clean Water Act could be squared with the 

avoidance of wildlife hazards, including bird strikes, that the FAA so aggressively guards 

against.

To be clear, we are not suggesting that any attempt by EPA to regulate environmental 

impacts from aviation is preempted as being “clearly incompatible.” In fact, EPA has 

long used the NPDES program under the CWA to address runoff from deicing 

operations. What we are highlighting, however, is that assessments of the potential 

conflict between the CWA and the Federal Aviation Act and related FAA mandates are 

inherently site-specific and cannot be prejudged in the absence of specific facts. (p. 10-

13)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The scope of the Federal Aviation Act is

beyond the scope of this rule.

10.508 We recognize that integration of a usable rule for easy identification of waters that are 

jurisdictional under the CWA and site-specific assessment of the compatibility of CWA 

protections with FAA mandates is not necessarily a simple matter. As written, the 

Proposed Rule categorically determines that certain waters (tributaries and adjacent 

waters) are jurisdictional and provides the mechanism to determine when and where 

jurisdictional “other waters” occur. These characterizations are based solely on the 

Agencies’ determinations of the scientific question whether such waters enjoy a 

“significant nexus” with traditionally jurisdictional waters.

As the Supreme Court has acknowledged, this purely scientific assessment is a tool but is 

not the final word in determining the extent of jurisdiction of the Act. Legal 

considerations, including constitutional and statutory limitations on the reach of the 

federal CWA, must also be considered. The question here is how to integrate that 

consideration into the CWA’s program, as is required, without throwing every 

determination of jurisdiction into confusion.

 

957 On January 15, 2009, US Airways Flight 1549 struck a flock of Canada geese during its initial climb out, lost 

engine power, and ditched in the Hudson River off midtown Manhattan, fortunately, with no loss of human life.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

487

While there likely are a number of alternatives, two that recommend themselves to A4A 

as worthy of consideration are as follows:

 Include in the final WOTUS rule a statement that nothing in the definition of 

WOTUS is intended to foreclose site-specific consideration of potential conflicts 

between the CWA and the Federal Aviation Act and FAA mandates; or

 include in the final WOTUS rule an identification of the forum or fora in which 

review may be had of site-specific conflicts between the CWA and the Federal 

Aviation Act and FAA mandates. (p. 13)

Agency Response: The rule is consistent with the statute and the caselaw and the 

Constitution. Technical Support Document, I.A. and C. The scope of the Federal 

Aviation Act is beyond the scope of this rule.

Ingram Barge Company (Doc. #14796)

10.509 The meaning and intent of Rapanos has been the subject of extensive debate, but one 

aspect of the case is certain: it limits the agencies' jurisdiction. Although the multiple 

opinions of this case add some complexity, it is clear that Rapanos did not invite an 

expansion of jurisdiction by the Agencies. The Agencies, however, in an attempt to 

"implement" the Supreme Court decisions on this topic drafted a guidance, but upon 

facing criticism in not undertaking a formal rulemaking, the Agencies withdrew the 

guidance and issued this Proposed Rulemaking instead. This Proposed Rulemaking, 

however, still misconstrues the "significant nexus" test of Rapanos, by- in essence 

reading the word "significant" out of the test. The Proposed Rule states that the Agencies 

should consider a water to have significant nexus to jurisdictional waters if it: either alone 

or in combination with other similarly situated waters in the region (i.e., the watershed 

that drains to [traditional navigable waters, interstate waters, or the territorial seas]), 

significantly affects the chemical, physical, or biological integrity of [traditional 

navigable waters, interstate waters, or the territorial seas]...[that is] more than speculative 

or insubstantial. 958 Therefore, the Agencies can assert jurisdiction over waters that are 

remote, small in volume, and insignificant by amassing them with other waters in a 

watershed. The Agencies do not offer any examples of hydrologic connection that is 

insignificant or mention those examples where there would not be any hydrological 

connection at all. Additionally, the Proposed Rule deprives the term "navigable" in 

"navigable waters" of any meaning by applying the "significant nexus" test in such an 

overbroad manner, a result that is specifically forbidden in the Kennedy opinion in 

Rapanos. 

959(p.3 )

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Southern Company (Doc. #14134)

10.510 With this proposal, the agencies appear to be exploiting what they characterize as 

confusion created by Rapanos to seize upon Justice Kennedy’s “significant nexus” test 

 

958 79 Fed. Reg. at 22,263 (emphases added).

959 Rapanos, 541 U.S. at 778-79 ("[T]he word 'navigable' in 'navigable waters' [must] be given some importance 

[and] some effect.").
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

488

and construe it in ways that even Justice Kennedy himself would not recognize. We note 

that in defining significant nexus, the agencies use the disjunctive term “or” instead of the 

conjunctive term “and” in paraphrasing Justice Kennedy’s characterization of the CWA’s 

jurisdictional reach. Justice Kennedy spoke specifically of the “chemical, physical and 

biological” integrity of other covered waters, not the “chemical, physical or biological” 

integrity of those same waters. This change fundamentally alters the scope and legal 

construct of the significant nexus test, expanding it in ways that neither the CWA nor 

Justice Kennedy’s opinion support. (p.22)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.511 The roots of Justice Kennedy’s “significant nexus” test can be found in the Riverside 

Bayview decision, and subsequently refined in SWANCC and Rapanos. Notably, in 

Riverside Bayview, the Court affirmed the Corps’ jurisdiction over wetlands adjacent to 

and inseparably bound up with navigable waters. Affording deference to the Corps’ 

interpretation in that case, the Court concluded that the Corps’ “ecological judgment 

about the relationship between waters and their adjacent wetlands” offered “an adequate 

basis for a legal judgment that adjacent wetlands may be defined as waters under the 

Act.” Riverside Bayview, 474 U.S. at 134. Thus, it was both the close spatial proximity 

and an inseparable physical, chemical, and biological linkage that established the 

significant nexus. (p. 23)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.512 Notwithstanding the differences between the Scalia and Kennedy tests, and the confusion 

inherent in the plurality and swing vote opinions, one thing remains clear. The sole legal 

basis for jurisdiction under the Act is rooted in a physically proximate and significant 

functional relationship between non-navigable waters and TNWs. (p. 24)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.513 The agencies claim that the proposal will resolve the confusion created by the Supreme 

Court’s decision in Rapanos. But contrary to this claim, the proposal seems more clearly 

aimed at recapturing many of the non-navigable isolated and otherwise remote, nonjurisdictional waters that were removed from jurisdiction under the SWANCC and 

Rapanos decision. This is not appropriate. Only Congress may effect such a recapturing 

of jurisdiction lost by Supreme Court interpretation. (p. 25)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The rule does not recapture jurisdiction 

over waters based on the Migratory Bird Rule.

Westlands Water District (Doc. #14414)

10.514 Second, although the Proposed Rule purports to apply Justice Kennedy’s concurring 

opinion in Rapanos, the Proposed Rule adopts a different definition of the phrase 

“significant nexus”—which is the predicate for determining whether a water body is 

“adjacent”—from that adopted in Justice Kennedy’s concurring opinion. Justice 

Kennedy’s concurring opinion stated that, based on the Supreme Court’s prior decision in 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

489

SWANCC, a water will be considered as part of “the waters of the United States” if it has 

a “significant nexus” to traditional navigable waters. Justice Kennedy defined 

“significant nexus” as follows: 

“[W]etlands 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." When, in contrast, wetlands' effects on water quality are speculative 

or insubstantial, they fall outside the zone fairly encompassed by the statutory 

term ‘navigable waters.’”960

Justice Kennedy’s definition of “significant nexus” follows the Clean Water Act’s 

definition of the Act’s goals, which are among others “to restore and maintain the 

chemical, physical, and biological integrity of the Nation’s waters.” (33 U.S.C. § 

1251(a)). On the other hand, the Proposed Rule adopts a different definition of 

“significant nexus,” stating: 

“(7) Significant nexus. The term significant nexus means that a water, including 

wetlands, either alone or in combination with other similarly situated waters in the 

region (i.e., the watershed that drains to the nearest water identified in paragraphs 

(a)(1) through (3) of this section), significantly affects the chemical, physical, or 

biological integrity of a water identified in paragraphs (a)(1) through (3) of this 

section. For an effect to be significant, it must be more than speculative or 

insubstantial. Other 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 water identified in paragraphs (a)(1) through (3) of this 

section.”961

While Justice Kennedy’s concurring opinion defines “adjacent” has having a significant 

nexus to the “chemical, physical, and biological integrity” of water, the Proposed Rule 

defines “adjacent” as having a significant nexus to the “chemical, physical, or biological 

integrity” of water.

The preamble of the Proposed Rule makes clear that the divergence from Justice 

Kennedy’s formulation was intentional, even though the Rule purported to be consistent 

with Justice Kennedy’s interpretation. The preamble states: 

The proposed rule includes a definition of significant nexus that is consistent with 

Justice Kennedy’s significant nexus standard. In characterizing the significant 

nexus standard, Justice Kennedy stated: ‘‘The required nexus must be assessed in 

terms of the statute’s goals and purposes. Congress enacted the [CWA] to ‘restore 

and maintain the chemical, physical, and biological integrity of the Nation’s 

waters’...’’ 547 U.S. at 779. It is clear that Congress intended the CWA to 

 

960 Rapanos, 547 U.S. at 780.

961 79 Fed. Reg. 22263 (2014). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

490

‘‘restore and maintain’’ all three forms of ‘‘integrity,’’ 33 U.S.C. 1251(a), so if 

any one form is compromised then that is contrary to the statute’s stated objective. 

It would subvert the intent if the CWA only protected waters upon a showing that 

they had effects on every attribute of a traditional navigable water, interstate 

water, or territorial sea. Therefore, a showing of a significant chemical, physical, 

or biological affect should satisfy the significant nexus standard.962

Thus, the Proposed Rule goes beyond Justice Kennedy’s concurring opinion by extending 

federal jurisdiction to waters that have a significant nexus to the chemical, physical, or 

biological integrity of a traditional navigable water, rather than a combination of all three 

characteristics. Again, the Proposed Rule has expanded federal jurisdiction under the 

Clean Water Act beyond the analysis provided in Justice Kennedy’s concurring opinion, 

and indeed beyond the language of the Clean Water Act itself. (p. 27-28)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Crop Life (Doc. #14630.1)

10.515 In the proposed rule the agencies have ignored the plurality opinion and inappropriately 

selected from Justice Kennedy’s opinion and other Rapanos opinions to advance a 

position not unlike that previously rejected by the Supreme Court. Under Marks v. United 

States, when the Supreme Court decides a case and five Justices do not arrive at a 

majority opinion, “the holding of the Court may be viewed as the position taken by those 

Members who concurred in the judgment on the narrowest grounds.”963 In proposing this 

rule, the agencies have inappropriately relied on Justice Kennedy’s “significant nexus” 

standard in Rapanos, which was rejected by the four-Justice plurality, rather than a 

common framework agreed upon by five Justices. The agencies should have proposed a 

rule that is consistent with a single holding based on the common elements of the

plurality’s and Justice Kennedy’s opinions. (p. 13)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Arizona’s Cooperatives G & T (Doc. #14901)

10.516 Under existing caselaw, “the holding of the Court may be viewed as that position taken 

by those Members who concurred in the judgment on the narrowest grounds.” See, e.g., 

Marks v. United States, 430 U.S. 188, 193 (1977)). In other words, the Rapanos decision 

should only be read as granting jurisdiction where there is commonality between Justice 

Kennedy and the Plurality. In this case, the agencies seek to use an either/or test; that is, 

they will find jurisdiction under either the Plurality test or under Justice Kennedy’s test, 

rather than a single test that meets the framework and limitations common between the 

Plurality and Justice Kennedy. This is in contravention of the holding in Marks. 

In addition, the aggregation approach stretches the extent of Justice Kennedy’s 

“significant nexus” concept beyond what Justice Kennedy was willing to consider as 

 

962 79 Fed. Reg. 22261 (2014).

963 430 U.S. 188, 193 (1977) (internal quotations omitted).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

491

establishing such a nexus. Nowhere in Justice Kennedy’s opinion does such an approach 

appear as establishing a “significant nexus” and, as stated above, actually flies in the face 

of the limiting factors (i.e., that remote, insubstantial, speculative or minor flows do not 

establish the requisite nexus) set forth in the opinion. Simply, the agencies have cherrypicked language they like best from the opinion in an effort to extend jurisdiction beyond 

what is clearly allowed under the Rapanos decision. 

Both opinions would allow jurisdiction over certain non-navigable tributaries, however 

both the Plurality and Justice Kennedy were concerned about the agencies overreaching 

and extending jurisdiction over features remote from TNWs and carrying only minor 

and/or intermittent flows. Justice Kennedy criticized the agencies’ “existing standard” 

which “deems a water a tributary if it feeds into a traditional navigable water (or a 

tributary thereof) and possesses an ordinary high water mark” because it “leave[s] wide 

room for regulation of drains, ditches, and streams remote from any navigable-in-fact 

water and carrying only minor volumes toward it.” Rapanos, at 781 (Kennedy, J., 

concurring). Similarly, the Plurality chastised the agencies for finding jurisdiction in 

“ephemeral streams, wet meadows, storm sewers and culverts, directional sheet flow 

during storm events, drain tiles, man-made drainage ditches, and dry arroyos in the 

middle of the desert.” Id. at 734 (Plurality). While Justice Kennedy took issue with the 

Plurality’s “relatively permanent waters” test for tributaries, both opinions agreed that the 

Corps had gone too far in its assertion of jurisdiction over tributaries and that “mere 

adjacency to a tributary” is insufficient. Id. at 786 (Kennedy, J., concurring). Yet, that is 

exactly what the agencies are proposing to do here; extend jurisdiction, not only to 

merely adjacent tributaries, but also to any tributaries within the same watershed, 

regardless of the standard set forth in the Rapanos decision. The Proposed Rule does not 

in fact provide clarity on the extent of waters of the U.S. 

The Agencies assert that one of the primary purposes of the Proposed Rule is to provide a 

level of clarity regarding the extent of waters of the U.S. that both the regulated public 

and the Supreme Court have demanded. However, despite the broad conclusion in the 

Proposed Rule that “[m]ost prairie streams and southwest intermittent and ephemeral 

streams are likely to be considered tributaries to (a)(1) through (a)(3) waters....”, and that 

tributaries are, by definition, jurisdictional under the Proposed Rule, the extent o of 

federal jurisdiction over non-navigable tributaries is still very much in question. (p. 3-4)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The agencies have provided additional 

clarity.

West Bay Sanitary District, et. al (Doc. #16610)

10.517 Pursuant to the CWA, the term "Waters of the United States" is not used or defined. 

Instead, the CWA refers to "navigable waters" which is defined to mean "waters of the 

United States, including the territorial seas." 33 U.S.C. §1362(7). Although the regulatory 

definitions vary across CWA sections, EPA's current NPDES regulations define "waters 

of the United States" as "all waters which are currently used, were used in the past, or 

may be susceptible to use in interstate or foreign commerce, including all waters which 

are subject to the ebb and flow of the tide." 40 C.F.R. § 122.2 ("Definitions") (defining 

"Waters of the United States"). The Supreme Court has twice stated that the meaning of 
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492

"navigable waters" in the Act is broader than the traditional understanding of that term, 

but has also emphasized, however, that the qualifier "navigable" is "not devoid of 

significance." Rapanos at 731 citing SWANCC, 531 U.S. at 167 and 172; and Riverside 

Bayview, 474 U. S. at 133. 

Previously, in 1979, the U.S. Supreme Court created four tests for determining what 

constitutes a "navigable water." In Kaiser Aetna v. United States, 444 U.S. 164, 100 S. 

Ct. 383 (1979), the tests ask whether the body of water (1) is subject to the ebb and flow 

of the tide, (2) connects with a continuous interstate waterway, (3) has navigable 

capacity, and (4) is actually navigable. Even earlier, in Gibbons v. Ogden, 22 U.S. (9 

Wheat.) 1,6 L. Ed. 23 (1824), the Court, when faced with deciding whether to give 

precedence to a state or federal law for the licensing of waterborne vessels, ruled that 

navigation of vessels in and out of the ports of the nation is a form of interstate 

commerce. This decision was the initial impetus for the contemporary exercise of broad 

federal power over navigable waters used to transport items sold in the stream of 

commerce. 

Notwithstanding these Supreme Court decisions, case law, particularly in the Ninth 

Circuit, has continued to exponentially expand the WOTUS definition to hold that "a 

body of water need not, itself, be navigable in order to be one of the waters of the United 

States." United States v. Moses, 496 F.3d 984,988 (9th Cir.2007). And, a tributary of 

waters of the United States or a seasonally intermittent stream which ultimately empties 

into a water of the United States, can, itself, be a water of the United States. Moses, 496 

F.3d at 989 n. 8. 

This expansion was presumably reined in by the decision in Rapanos, where the Court 

defined WOTUS as follows: " '[T]he waters of the United States' includes only those 

relatively permanent, standing or flowing bodies of water" as found in forming 

geographic features that are described in ordinary parlance as streams, oceans, rivers, and 

lakes. "All of these terms connote continuously present, fixed bodies of water, as opposed 

to ordinarily dry channels through which water occasionally or intermittently flows." 

Rapanos, 547 U.S. at 739, 126 S.Ct. 2208 (citation, internal quotations, ellipses, and 

brackets omitted); see also Rapanos, 547 U.S. 715, 732-33 n. 5,126 S.Ct. 2208 (U.S.S.C. 

2006)(Scalia, J.) ("We also do not necessarily exclude seasonal rivers, which contain 

continuous flow during some months of the year but no flow during dry months...It 

suffices for present purposes that channels containing permanent flow are plainly within 

the definition and that the dissent's 'intermittent' and 'ephemeral' streams...-that is, 

streams whose flow is '[c]oming and going at intervals...[b]roken, fitful'...are not. "). 

Although the Court held that the term "relatively permanent" does not necessarily 

exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as 

a drought, nor does it automatically exclude seasonal rivers that contain continuous flow 

during some months of the year but no flow during dry months, there was no ruling that 

these dry washes must fit within the definition of WOTUS. Id. at 733 n. 5, 126 S.Ct. 2208 

(emphasis added). Accordingly, just because Rapanos did not exclude waters that 

sometimes run dry, these waters also need not necessarily or automatically be included. 

For this reason, the proposed rule could just as easily, and should, exclude intrastate 

waterbodies that seasonally or intermittently have no water in them. See accord Rapanos

at 733-34 ("The restriction of 'the waters of the United States' to exclude channels 
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493

containing merely intermittent or ephemeral flow also accords with the commonsense 

under-standing of the term. In applying the definition to 'ephemeral streams,' 'wet 

meadows,' storm sewers and culverts, 'directional sheet flow during storm events,' drain 

tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps 

has stretched the term 'waters of the United States' beyond parody. The plain language of 

the statute simply does not authorize this 'Land Is Waters' approach to federal 

jurisdiction."). (p. 3-4)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.518 While the rule discusses the scientific connectivity between waters, the real question rests

on the scope of the federal government's regulatory powers under the U.S. Constitution, 

including the reach of the Commerce Clause.964 Just because waters may be connected in 

some way does not mean that the federal government should or does have control over all 

of those waters, particularly those residing solely within a single state. 

A good analogy would be to compare the federal highway system. Particular interstate 

highways are designated as federal highways, which are controlled and maintained by the 

federal government (e.g., Interstate 5). Each of those federal highways connects to state 

controlled highways that are "tributary" to the federal highways. Just because the state 

roads feed traffic to the federal highways does not transform them into federally 

controlled and maintained highways. Similarly, county and city roads connect to federal 

highways, but remain locally controlled and maintained. This is true even though these 

local and state roadways have a direct interstate commerce link with trucks and cars that 

can travel carrying goods from state to state or to other countries, or that can contribute 

pollution across state lines. A similar view should be taken of waterways. Just like 

highways, only the interstate waters, traditional navigable waterways, and territorial seas 

should be considered to be federal. Local and state officials retain the ability and 

capability to regulate the quality of local waters and activities within local watersheds 

and it is in their best interest to do so to stimulate tourism and to provide a healthy 

environment to its citizens. 

Clearly, the scope of the federal government's ability to control is limited by the U.S. 

Constitution.965 "The proposed rule would replace the requirement that a waterway 

substantially "affect interstate or foreign commerce”966 with the requirement that the 

 

964 See accord SAB Report (Executive Summary) (Oct. 17,2014) at pg. 1 ("The Report is a scientific review and, as

such, it does not set forth legal standards for Clean Water Act jurisdiction."); pg. 2 ("The Report is a science, not 

policy, document..."); pg. 9 ("The SAB also finds that the Report would be strengthened if it contained: ... (3) an 

explanation that the definitions used for rivers, streams, and wetlands are scientific, rather than legal or regulatory 

definitions, and may differ from those used in the Clean Water Act and associated regulations.").

965 See National Federation of Independent Business, et al v. Sebelius, 132 S.Ct. 2566,2579 ( 2012)("Our respect for 

Congress's policy judgments thus can never extend so far as to disavow restraints on federal power that the 

Constitution carefully constructed.")

966 In the case of United States v. DeWitt, 76 U.S. (9 Wall.) 41, 43-44 (1869), the Supreme Court stated that the 

Commerce Clause, while authorizing Congress to regulate commerce between States, operated "as a virtual denial of 

any power to interfere with the internal trade and business of the separate States...." Thus, regulation was only 

allowed when there was a direct interstate connection. See accord The Daniel Ball, 77 U.S. (10 Wall.) 557,565 

(1870)(the Court allowed federal licensing of ships operating exclusively intrastate was only permissible if the ships 
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494

water must meet Justice Kennedy's "significant nexus" standard as discussed in the 

Rapanos case. 79 Fed. Reg. 22212. This replacement would unlawfully substitute the 

precedential constitutionally-defined standard upheld over time in Supreme Court 

jurisprudence with a "standard" pronounced by a single Supreme Court justice without 

equivalent constitutional backing. The undefined "significant nexus" concept must still 

operate within the bounds of constitutional jurisprudence or be subject to further 

challenge and invalidation. Even if couched under the authority of the "Necessary and 

Proper Clause" of the Constitution, this must still fall within constitutional boundaries by 

its very terms. The Necessary and Proper Clause reads: "To make all Laws which shall be 

necessary and proper for carrying into Execution the foregoing Powers, and all other 

Powers vested by this Constitution in the Government of the United States, or in any 

Department or Officer thereof." See U.S. CONST. art. I, § 8, cl. 18. Thus, no rule can 

transcend the "Powers vested by the Constitution." 

Other Supreme Court cases should have been used to provide context to the constitutional 

extent of "significant nexus" as applied to the CWA. Under CWA jurisprudence, in 

Riverside Bayview, the Supreme Court upheld jurisdiction over adjacent wetlands 

because the interpretation to include waters that were inseparably bound up with 

jurisdictional waters was not unreasonable where the wetlands actually abutted the 

waterways. 474 U.S. at 133. In Solid Waste Agency of Northern Cook County (SWANCC) 

v. US. Army Corps of Engineers, 531 U.S. 159, 167 (U.S.S.C. 2001), the Court held there 

was no reasonable nexus where isolated, non-navigable, intrastate ponds were used by 

migratory birds to confer federal regulatory authority under the CWA. See also Cargill v. 

United States, 116 S. Ct. 407,409 (1995) (Thomas, J., dissenting) (presciently rejecting 

the finding that the presence of migratory birds on wetlands could have been rationally 

related to interstate commerce). 

Perhaps review of non-CWA cases would also provide a clearer point of view. In United 

States v. Lopez, 2 F.3d 1342,1362 (5th Cir. 1993) affd. 115 S. Ct. 1624 (1995),967 the 

court noted:

“If the reach of the commerce power to local activity that merely affects interstate 

commerce or its regulation is not understood as being limited by some concept 

such as "substantially" affects, then, contrary to Gibbons v. Ogden, the scope of 

 

held cargo destined for other states.) Regulation of intrastate manufacturing was not "commerce" and was reserved 

to the States. United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895) (Justice Fuller reasoned, “[t]hat which belongs 

to commerce is within the jurisdiction of the United States, but that which does not belong to commerce is within the 

jurisdiction of the police power of the State.” Even in New Deal jurisprudence, intrastate activities were required to 

possess "a close and substantial relation to interstate commerce [such] that their control is essential or appropriate to 

protect that commerce from burdens and obstructions" in order to fall within Congress' commerce power. NLRB v. 

Jones & Laughlin Steel. 301 U.S. 1,37 (1937). Thus, the real inquiry should be whether the "substantial nexus" 

equates to a "close and substantial relation to interstate commerce." See accord United States v. Lopez, 115 S. Ct. 

1624, 1630-31 (1995) (federal statute exceeded Congress' power to legislate under the Commerce Clause because 

the prohibited activity had no connection to interstate commerce.) 

967 Lopez represents first time in decades that the Supreme Court has invalidated a federal statute enacted under the 

claimed authority of the Commerce Clause. Going further, the Lopez case eliminated the rational basis test 

previously utilized by courts to justify the legality of statutes under the Commerce Clause, and resurrected the 

"substantially affects" test, whereby courts must now examine the actual effect of a particular statute or law on 

interstate commerce.
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495

the Commerce Clause would be unlimited, it would extend "to every description" 

of commerce and there would be no "exclusively internal commerce of a state" 

the existence of which the Commerce Clause itself "presupposes" and the 

regulation of which it "reserved for the state itself.” Id.: see U.S. CONST. art. I. § 

8, c1.3 (granting to Congress power "[t]o regulate Commerce with foreign 

Nations, and among the several States, and with the Indian Tribes")(emphasis 

added): U.S. CONST. amend. X (reserving to States all powers not delegated to 

Congress by Constitution). 

This decision was affirmed by the Supreme Court. Lopez, 115 S. Ct. at 1634. Therefore, 

the "substantial nexus" must mirror the requirement to have more than a tenuous 

connection to interstate commerce in order to meet the "substantial connection" test 

required of legislation authorized pursuant to the Commerce Clause. This does not reflect 

a scientific or policy decision as EPA has couched it in the proposed rule, but instead 

requires a legal determination on where the line is drawn to ensure that the connection to 

actual commerce is not too tenuous. Maintaining the line at traditional navigable waters, 

those waterways actually abutting those navigable waters, including wetlands and first 

branch tributaries, would meet this test. Distant, non-navigable intrastate tributaries and 

isolated waters not connected directly to navigable waterways that are or could 

reasonably be used for interstate commerce do not. See Riverside Bayview, 531 U.S. at 

167, 171; Rapanos at 726 and at 754, 767 ("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." (citations 

omitted); see also id. at 754, 767. (p. 4-6)

The Supreme Court's most recent decision in Rapanos characterized the enforcement 

proceedings against Mr. Rapanos as being "a small part of the immense expansion of 

federal regulation of land use that has occurred under the Clean Water Act- without any 

change in the governing statute-during the past Presidential administrations." Rapanos v. 

US., 547 U. S. 715,722 (2006). Justice Scalia, authoring the four justice plurality 

decision, held: 

In the last three decades, the Corps and the Environmental Protection Agency 

(EPA) have interpreted their jurisdiction over "the waters of the United States" to 

cover 270-to-300 million acres of swampy lands in the United States-including 

half of Alaska and an area the size of California in the lower 48 States. And that 

was just the beginning. The Corps has also asserted jurisdiction over virtually any 

parcel of land containing a channel or conduit-whether man-made or natural, 

broad or narrow, permanent or ephemeral-through which rainwater or drainage 

may occasionally or intermittently flow. On this view, the federally regulated 

"waters of the United States" include storm drains, roadside ditches, ripples of 

sand in the desert that may contain water once a year, and lands that are covered 

by flood waters once every 100 years. Because they include the land containing 

storm sewers and desert washes, the statutory "waters of the United States" engulf 

entire cities and immense arid wastelands. In fact, the entire land area of the 

United States lies in some drainage basin, and an endless network of visible 

channels furrows the entire surface, containing water ephemerally wherever the 
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496

rain falls. Any plot of land containing such a channel may potentially be regulated 

as a "water of the United States." 

The Scalia decision described the case law that, like the Corps of Engineers' rules and 

jurisdictional determinations, has drastically expanded the scope of the CWA jurisdiction 

and declared them implausible. Id. at 727 citing Save Our Sonoran, Inc. v. Flowers, 408

F. 3d 1113, 1118 (CA9 2005)968 ("...and (most implausibly of all) the ‘washes and 

arroyos’ of an 'arid development site,' located in the middle of the desert, through which 

'water courses...during periods of heavy rain.''') The proposed rule continues to 

impermissibly expand the jurisdictional boundaries instead of staying within the 

constitutional legal bounds. 

Waters themselves are not subject to commerce except when interstate in nature. In 

United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995), the Ninth Circuit found an 

insufficient connection to commerce on basis of gas supplied to residence by out-of-state 

company. The court held that "[u]nlike a firearm or a car, both of which can readily move 

in interstate commerce, a house has a particularly local rather than interstate character." 

Id. at 527-28. Similarly, a wholly intrastate waterbody is local and has no direct 

connection to interstate commerce. Without such a connection, interstate waters do not 

meet the "substantially affects" test under the Commerce Clause. Justice Kennedy's 

decision in Rapanos must be construed to read the "significant nexus" to equate to the 

same inquiry required under the Lopez "substantial affects" test. Without meeting the 

definition of navigability,969 it is unclear that this inquiry will produce waters meeting the 

federal jurisdictional test. (p. 6-7)

Agency Response: The rule is consistent with the statute and the caselaw and the 

Constitution. Technical Support Document, I.A. and C.

 

968 The Court cited this case, stating it was "indebted to the Sonoran court for a famous exchange, from the movie 

Casablanca (Warner Bros. 1942), which portrays most vividly the absurdity of finding the desert filled with waters:

" 'Captain Renault [Claude Rains]: "What in heaven's name brought you to Casablanca?"

" 'Rick [Humphrey Bogart]: "My health. I came to Casablanca for the waters."

" 'Captain Renault: "The waters? What waters? We're in the desert."

" 'Rick: "I was misinformed.' " 408 F. Jd, at 1117.

969 The Clean Water Act's tie to commerce is through the notion of "navigability" whereby substantial goods can be 

transported in interstate or foreign commerce. Navigability does not mean that a small boat or kayak can travel down 

an intrastate waterway as this movement does not implicate interstate commerce any more than driving a car down a 

city street or county road that may at some point intersect with a federal highway. Courts have recognized that 

jurisdictional lines must be drawn for statutes, and more so for interpretive regulations, as was indicated in United 

States v. Morrow, 834 F. Supp. 364,365 (N.D. Ala. 1993): 

[N]ot everyone [has] been conditioned to believe that there is nothing which moves or has ever moved 

which does not support an invocation of the Commerce Clause as the means for conferring federal 

jurisdiction and control over the activity and/or problem that Congress wishes to govern and/or solve. The 

air in the soccer ball used on the school playground, or a molecule or two of the milk dispensed in the 

school cafeteria (especially if the milk is homogenized) undoubtedly crossed some state line before arriving 

at the school. But this court joins the Fifth Circuit in expecting Congress at least to share with the public, 

and with the overworked federal courts upon which Congress thrusts the enforcement of an accelerating 

volume of [... ] statutes, some articulated, rational, constitutional basis for the federal government's 

assumption of jurisdiction over the perceived problem, particularly over an area historically governed by 

states or municipalities under local laws.
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497

10.519 The CWA contains a clear stated Congressional policy "to recognize, preserve, and 

protect the primary responsibilities and rights of the States to prevent, reduce, and 

eliminate pollution, [and] to plan the development and use (including restoration, 

preservation, and enhancement) of land and water resources ...." 33 U.S.C. §1251(b). In 

addition, the CWA preserves to States the rights to protect its own waters by allowing 

more stringent regulation and excludes any statutory construction that would "impair or 

in any manner affect any right or jurisdiction of the States with respect to the waters 

(including boundary waters) of such States." 33 U.S.C. §1370. Thus, States were 

intended under the CWA to be the primary regulatory authorities of both water rights and 

water pollution. 

Expanding federal regulation over legal issues traditionally reserved to the States under 

the Tenth Amendment (e.g., issues related to regulation of crime, education, 

manufacturing, agriculture, or water quality) may act to place the Constitutional system 

of federalism upon which the United States was founded in severe jeopardy of being 

destroyed. Such federal regulatory expansion also creates a duplicative federal layer of 

bureaucracy over these traditionally established State functions, thereby wasting tax 

dollars unnecessarily. Such expansion also upsets the "healthy balance of power between 

the States and the Federal Government" necessary to "reduce the risk of tyranny and 

abuse from either front." See Lopez, 115 S. Ct. at 1638 (Kennedy, J., concurring), citing 

Gregory v. Ashcroft, 501 U.S.452, 458-59 (1991). 

As an example, application of the proposed rule's WOTUS definition to include 

floodplains where the height of flood waters may only reach every year to everyone 

thousand years.970 This definition will potentially pull in most all land in the United 

States since virtually no locales are wholly immune to flooding. Such a definition would 

"result in a significant impingement of the States' traditional and primary power over land 

and water use." SWANCC, 531 U. S., at 174; Rapanos at 738. The extensive federal 

jurisdiction proposed in the draft rule "would authorize the Corps to function as a de facto 

regulator of immense stretches of intrastate land." Id. Again, the phrase "the waters of the 

United States" should be confined to relatively permanent bodies of water, not waters that 

flow over land occasionally, or just every millennium. Id. Permitting "federal jurisdiction 

over ponds and mudflats [and other occasionally wetted surfaces] ... would result in a 

significant impingement of the States' traditional and primary power over land and water 

use." SWANCC, 531 U.S. at 174. (p. 8)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The agencies have defined neighboring 

based in part on the 100 year flood interval, not the 1000 year flood interval.

San Juan Water Commission (Doc. #16931)

10.520 With respect to federal incursion into state jurisdiction, Congress expressly recognized 

the importance of state control over intrastate waters, including pollution control, in the 

 

970 See accord EPA SAB Report (Oct. 17,2014) at pg. 42 ("Flood forecasting analyses require that recurrence 

intervals be explicitly defined, for example making estimates over a reasonable range of overbank flows (2 years out 

of 3, to 10-yr and 100-yr events) ..."), and pg. 13 ("all elements of the landscape are connected when considered at 

sufficiently long temporal scales.").
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498

1972 Clean Water Act: it is "the policy of the Congress to recognize, preserve, and 

protect the primary responsibilities and rights of States to prevent, reduce, and eliminate 

pollution, to plan the development and use (including restoration, preservation, and 

enhancement) of land and water resources..." 33 U.S.C. section 1251(b). Such authority 

traditionally is reserved to the states under the Tenth Amendment, and the federal 

government should not abrogate such authority. The states can—and have— exercised 

their authority to clean up polluted intrastate waters. For example, the New Mexico 

Water Quality Control Commission has adopted an expansive definition of "surface 

waters of the state." 20.6.4.7(S)(5) NMAC. 

EPA and Corps jurisdiction has expanded significantly in the years since the passage of 

the Clean Water Act, and there is no legal basis for further expansion. Proof of 

Congressional intent opposite that urged by the Agencies is found in the legislative 

history of the Clean Water Act. For example, Senator Edmund Muskie, when debating 

the conference bill said: 

“It is intended that the term 'navigable waters' include all water bodies, such as 

lakes, streams, and rivers, regarded as public navigable waters in law which are 

navigable in fact. It is further intended that such waters shall be considered to be 

navigable in fact when they form, in their ordinary condition by themselves or by 

uniting with other waters or other systems of transportation, such as highways or 

railroads, a continuous highway over which commerce is or may be carried on 

with other States...” 118 Cong. Rec. 33699 (1972). 

By using the term "navigable waters" in the Clean Water Act, Congress clearly intended 

to limit federal authority to its traditional Commerce Clause jurisdiction, which, although 

broad, is not limitless. Initially, the Corps regulated only traditional navigable waters. 

Later, the Corps adopted regulations expanding its jurisdiction over navigable waters to 

cover wetlands adjacent to navigable waters. Not until the Corps' adoption of the 

"Migratory Bird Rule" in 1986 did the federal government assert jurisdiction over 

isolated, private waters such as waters that collect in abandoned gravel pits that are not 

located near streams or rivers. The Supreme Court correctly struck down the Migratory 

Bird Rule in Solid Waste Agency of Northern Cook County v. United States Army Corps 

of Engineers, 531 U.S. 159 (2001), and the Agencies are bound by this and other 

Supreme Court decisions limiting federal Clean Water Act jurisdiction to navigable 

waters, their tributaries and wetlands with a significant nexus to such waters. For 

example, in Rapanos v. United States, the Supreme Court held there is no Clean Water 

Act jurisdiction over wetlands with no adjacency or "significant nexus" to a traditional 

navigable waterway. 547 U.S. 715 (2006). 

The Agencies' expansive interpretation of "significant nexus" to establish federal 

jurisdiction based on simple movement of animals or insects between waterbodies rather 

than the actual movement of pollutants, as proposed in the WOTUS Rule, is without 

either legal or scientific support. The extensive comments submitted by the Federal 

Water Quality Coalition ("FWQC") explain in great detail the legal and scientific flaws in 

the WOTUS Rule. The FWQC comments are so comprehensive there is little SJWC can 

add to them. Thus, rather than simply repeat the arguments presented by the FWQC, 

SJWC approves and adopts the FWQC comments as its own. 
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499

It is important to remember that Congress passed the Clean Water Act in order to stop 

industrial pollution, as evidenced by the criminal penalties set out in the Clean Water Act. 

However, the WOTUS Rule would extend federal jurisdiction to ornamental ponds, flood 

retention ponds, municipal storm drains, stock watering ponds, irrigation canals and 

puddles at construction sites. By elevating such waters to federal waters, many land uses 

will become subject to complex permitting requirements, including potential application 

of the National Environmental Policy Act and the Endangered Species Act. In fact, 

SJWC and its member entities are concerned that the WOTUS Rule will put virtually all 

land under EPA and Corps control and give those agencies veto power over local land 

use decisions. Many more water and land use activities also will become subject to 

potential liability from citizen suits. 

The harm that will flow from the WOTUS Rule is evidenced by several cases in which 

the Corps exerted expansive jurisdiction of the type that would be authorized under the 

proposed Rule, including Rapanos. In Rapanos, the Corps charged a property owner with 

destroying wetlands by filling in a very old man-made drainage ditch system on his 

"sometimes-saturated" fields. The ditches led to a non-navigable creek, which in turn led 

to a river about 20 miles away. In reversing the Corps' action, the Supreme Court held 

that the Clean Water Act provides federal jurisdiction only over "relatively permanent, 

standing or continuously flowing bodies of water' connected to traditional navigable 

waters, and to "wetlands with a continuous surface connection to" such relatively 

permanent waters. 547 U.S. at 739, 742. As noted by Justice Scalia: 

In applying the definition to 'ephemeral streams,' 'wet meadows,' storm sewers 

and culverts, 'directional sheet flow during storm events,' drain tiles, man-made 

drainage ditches, and dry arroyos in the middle of the desert, the Corps has 

stretched the term 'waters of the United States' beyond parody. The plain language 

of the statute simply does not authorize this 'Land Is Waters' approach to federal 

jurisdiction. 

SJWC believes that adoption of the WOTUS Rule will result in the "Land Is Waters" 

federal jurisdiction described by Justice Scalia, and such federal jurisdiction will 

adversely impact both land and water management activities across the United States that 

should be left to the purview of the states. Adoption of the WOTUS Rule will 

dramatically limit the ability of SJWC's member entities to continue necessary 

maintenance and other activities related to the operation of water diversion and 

distribution facilities. Under the proposed legislation, such activities will arguably require 

National Pollutant Discharge Elimination System ("NPDES") and/or Section 404 

Wetlands permits, which may or may not be obtainable in a timely manner, if at all. The 

economic and time costs of compliance, and resulting service disruptions, will be 

unprecedented and, in many instances, may make it impossible for SJWC's member 

entities to perform their essential functions. Population growth in New Mexico is 

straining existing water supplies and infrastructure, and the additional restrictions, 

prohibitions and limitations that will result from adoption of the WOTUS Rule will do 

much more harm than good. Many examples of the unwarranted adverse impacts on 

water, wastewater, stormwater and irrigation activities in arid West states like New 

Mexico are addressed in the comments submitted by the Western Coalition of Arid States 

("WESTCAS"). Again, rather than simply reiterate the information and arguments 
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500

presented by others, SJWC hereby approves and adopts the WESTCAS comments as its 

own. 

The expansion of federal jurisdiction over intrastate waters that would result from 

adoption of the WOTUS Rule will intrude on the rights of states to regulate water and 

land use activities—a duty the states are not shirking. The New Mexico Water Quality 

Control Commission and the New Mexico Environment Department regulate all state 

waters, and thus there is no need to overlay federal Clean Water Act jurisdiction to 

regulate dry arroyos, isolated private ponds, stormwater drains, irrigation ditches or other 

non-navigable intrastate waters. For the reasons stated herein, and more particularly for 

the reasons set forth in the comments submitted by the FWQC and WESTCAS, the 

WOTUS Rule should be rejected as an unlawful and scientifically unwarranted expansion 

of federal jurisdiction under the Clean Water Act. (p. 1-4)

Agency Response: The rule is consistent with the statute, the caselaw and the 

Constitution. Technical Support Document, I.A. and C. Puddles and ornamental 

pools, for example, are not jurisdictional under the rule.

Edison Electric Institute (Doc. #15032)

10.521 In describing the legal basis for the proposed rule, the agencies rely heavily on Justice 

Kennedy's concurrence in Rapanos v. United States, 547 U.S. 715 (2006). In his 

concurring opinion, Justice Kennedy stated that CW A jurisdiction requires a "significant 

nexus" such that wetlands "significantly affect the chemical, physical and biological 

integrity of other covered waters more readily understood as 'navigable."' Id. at 780. The 

agencies expand Justice Kennedy's articulation of a "significant nexus" test to encompass 

all waters, and reinterpret it to mean that a nexus can be found through the movement of 

animals, birds, and insects, as contrasted to the movement of pollutants. 

However, Justice Kennedy's concurring opinion does not support this interpretation. First, 

he applies the "significant nexus" test only to wetlands that significantly affect a 

jurisdictional water, not "all waters."971 Second, Justice Kennedy recognized that the 

CWA is a water quality statute.972 Third, while the Rapanos dissent suggested that 

ecological connections alone were sufficient to establish jurisdiction973, five justices, 

including Justice Kennedy, rejected that rationale. 

Moreover, the agencies' exclusive reliance on Justice Kennedy's opinion fails to give 

appropriate effect to the plurality opinion authored by Justice Scalia and joined by three 

other justices in Rapanos. As the Supreme Court has stated in Marks v. United States, 

"the holding of the Court may be viewed as that position taken by those Members who 

concurred in the judgments on the narrowest grounds." 430 U.S. 188, 193 (1977). In 

 

971 547 U.S. at 780 (“[W]etlands possess the requisite nexus...if the wetlands, either alone or in combination with 

similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other 

covered waters...”) (Justice Kennedy, concurring). See also San Francisco Baykeeper v. Cargill Salt Division, 418 

F.3d. 700, 707 (9th Cir. 2007) (jurisdiction based on a “significant nexus” applies to wetlands only). 

972 547 U.S. at 769 (describing the CWA as “a statute concerned with downstream water quality”) (Justice Kennedy, 

concurring). 

973 547 U.S. at 797 (arguing the CWA jurisdiction applies based on entwined ecosystems) (Justice Stevens, 

dissenting). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

501

Rapanos, the five justice majority that remanded the Corps' jurisdictional determination 

posited a number of factors relevant to jurisdiction under the CWA, including relative 

permanence, substantial flow, continuous surface connection, and significant nexus. 

These factors must be considered together to reflect the views of the majority of the 

Court. 

Despite these facts, the proposed rule embraces the approach endorsed by the Rapanos

dissent, without properly applying the plurality and Justice Kennedy opinions. The 

proposed rule would thus effectively broaden the CW A from a water quality protection 

statute to a species and habitat protection statute, when species and habitat protection are 

more properly left to federal and state fish and wildlife laws such as the Endangered 

Species Act (ESA). 

Thus, the proposed rule also would ignore constraints imposed by the Supreme Court in 

its decision in Solid Waste Agency of Northern Cook County v. US. Army Corps of 

Engineers, 531 U.S. 159, 172 (2001) (SWANCC). In that decision, the Court overturned 

the agencies' "migratory bird" rule, disallowing isolated waters to be viewed 

jurisdictional based on movement of biota. (p. 12-14)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.

Nucor Corp. (Doc. #14963)

10.522 The Agencies misguidedly rely on Justice Kennedy's vague "significant nexus" standard 

in the proposed rule. They disregard limitations on jurisdiction that both Justice Kennedy 

and the Plurality agreed upon. The Agencies cannot cherry pick elements from Rapanos 

that serves only their interests in an attempt to expand the regulatory landscape. Under 

Marks, Rapanos cannot be read in such a manner. Despite the Plurality's rejection of the 

"significant nexus" test (Rapanos, at 755), the Agencies focus almost exclusively on that 

test. The Agencies simply cannot ignore the Plurality's rejection of the "significant 

nexus" test and treat Justice Kennedy’s opinion as the holding of Rapanos. (p. 3-4)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.

Ducks Unlimited (Doc. #11014)

10.523 The touchstone for the final “Waters of the U.S.” rule and future administration of 

jurisdiction must be the primary purpose of the Clean Water Act – “to restore and 

maintain the chemical, physical, and biological integrity of the Nation’s waters.” Justice

Kennedy’s language in creating the “significant nexus test” in his pivotal opinion in the 

Rapanos case, his description of its key elements, and the state of the existing and 

emerging science, provides a firm foundation for moving toward that goal. (p. 73-74)

Agency Response: The agencies agree and the rule is consistent with the statute 

and the caselaw. Technical Support Document, I.A and C.

Natural Resources Defense Council (Doc. #15437)

10.524 The rule must at least afford the protections of the law to the waters that pass Justice 

Kennedy’s “significant nexus” test. Under this test, a water is jurisdictional under the 

Clean Water Act if there exists “a significant nexus between the [water] in question and 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

502

navigable waters in the traditional sense.”974 Jurisdiction can be established based on an 

analysis of a water’s “ecological functions vis-à-vis other covered waters.”975 This test 

allows for waters to be protected not just singly, but also categorically. Justice Kennedy 

specifically mentioned in his opinion that, “[t]hrough regulations or adjudication, the 

Corps [or EPA] may choose to identify categories” of waters that pass the test, based on 

scientific considerations.976 The agencies must “establish a scientific nexus on a case-bycase basis” only in the absence of “more specific regulations” that provide appropriate 

justification for categorical protections.977 The proposed categorical protections for 

tributaries and adjacent waters are a commonsense approach on firm scientific and legal 

ground.978 EPA’s “Connectivity Report” establishes definitively that tributaries and 

adjacent waters categorically pass the “significant nexus” test with ease. These findings 

were confirmed by the independent Science Advisory Board. Therefore, these categorical 

protections must be included in the final rule. (p. 31-32)

Agency Response: The agencies agree.

Chesapeake Bay Foundation (Doc. #14620)

10.525 In 2010, in a case before the Fourth Circuit Court of Appeals, CBF and others submitted 

an amicus curiae brief in support of the Army Corps' denial of a CWA permit for Precon 

Development to develop 443 acres of wetlands for residential units.979 The wetlands at 

issue were not directly adjacent to a navigable water and thus allowed Precon to argue 

that they did not have a "significant nexus" to the downstream Northwest River and were 

thus not protected as "waters of the United States." In fact, like the wetlands in Tri-City, 

the wetlands improved water quality, filtered pollutants in runoff, and protected the 

integrity of downstream waters and the Bay. In January 2011 the Fourth Circuit vacated 

the district court's decision to uphold the permit denial and remanded the case back to the 

district court for reconsideration.980 On remand, the magistrate found sufficient 

information in the record to support the Army Corps' "significant nexus" analysis that 

found a hydrologic connection between the 443 acres and the Northwest River.981

Despite the magistrate's review of the substantial scientific evidence supporting the 

Corps' analysis, the decision has again been appealed to the Fourth Circuit.982

 

974 Rapanos, 547 U.S. at 779.

975 Id. at 780.

976 Id. at 780-81.

977 Id. at 782.

978 These comments focus on the categories of water bodies that have most been in dispute under the current legal 

regime. We of course support the continued categorical protection of traditionally navigable waters, interstate 

waters, the territorial seas, and impoundments of specified waters, and the agencies’ proposal amply supports 

maintaining longstanding safeguards for these as well.

979 Proposed Brief Amici Curiae ofNat'l Wildlife Fed'n, Chesapeake Bay Found. and Natural Res. Def. Council in 

Support of Defendant-Appellee U.S. Army Corps of Eng'rs and Affirmance of District Court Decision, filed in the 

case of Precon Dev. Corp., Inc. v. U.S. Army Corps ofEng'rs (4th Cir. 2010).

980 Precon Dev. Corp., Inc. v. U.S. Army Corps ofEng'rs, No. 09-2239, 2:08-cv-00447-RBS-TEM (4th Cir. 2011).

981 See Precon Dev. Corp., Inc. v. U.S. Army Corps ofEng'rs, Civil No. 2:08-cv-00447-RBS-TEM, at 13 (E.D. Va.

2013) (finding that the "Corps' extensive factual findings supporting its significant nexus determination were not 

arbitrary and capricious, and that the Corps' ultimate determination that the relevant wetlands have a significant 

nexus to the Northwest River is highly persuasive.").

982 Precon Dev. Corp., Inc. v. U.S. Army Corps ofEng'rs, Case No. 13-2499 (4th Cir. 2013).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

503

The wetlands in these cases were connected to the Chesapeake Bay tributaries and the 

Bay itself through a complex network of underground and surface water flows. The 

proposed definition includes wetlands like these and provides clarity to developers and 

regulators. It also explicitly acknowledges the hydro logic connection and importance of 

these waters and does not require protracted litigation to dispute already-settled scientific 

determinations regarding their connectivity to navigable waters. (p. 10)

Agency Response: The agencies agree.

Washington Legal Foundation (Doc. #5503)

10.526 WLF is concerned that the proposed Rule’s reliance on Justice Kennedy’s “significant 

nexus test” to promulgate new definitions for “tributary,” “adjacent ”and“ other waters” 

will undoubtedly lead to the sort of resource-intensive and inconsistent case-by-case 

analysis explicitly rejected by a strong majority of the Supreme Court in Rapanos. In all 

events, such a rule exceeds the powers granted to the agencies under the CWA. (p. 2)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.

10.527 EPA and the Corps are wrong to read the robust holding in SWANCC as being limited 

solely to the Migratory Bird Rule. Equally mistaken is their apparent take-away that the 

case somehow created a "significant nexus" test.' SWANCC clearly established a firm 

check on the agencies' view of federal jurisdiction, which the Court found was "a 

significant impingement of the States' traditional and primary power over land and water 

use." 531 U.S. at 174. There, as here, EPA "attempt[ed] to 'clarify' the reach of its 

jurisdiction" through a new definition of "waters of the United States." Id. at 164. The 

Court struck down that "clarification," noting that EPA "fac]ed] a difficult task in 

overcoming the plain text and import of § 404(a)" because "[a]bsent overwhelming 

evidence of [congressional] acquiescence, we are loath to replace the plain text and 

original understanding of a statute with an amended agency interpretation." Id. at 682, 

n.5. Rather, the Court "expect]s] a clear indication that Congress intended" for the 

"administrative interpretation [to] invoke[J the outer limit of Congress' power." Id. at 

683. Such a "concern is heightened where the administrative interpretation alters the 

federal-state framework by permitting federal encroachment upon a traditional state 

power." Id. (p. 8)

Agency Response: The rule is consistent with the statute and the caselaw and the 

Constitution. Technical Support Document, I.A and C.

10.528 As for the powers granted to regulatory agencies by the CWA, the SWANCC Court 

noted that "[rather than expressing a desire to readjust the federal-state balance [by 

reading out the term 'navigable'], Congress chose to 'recognize, preserve and protect the 

primary responsibilities and rights of States ... to plan the development and use ... of land 

and water resources.... '" Id. at 684 (quoting 33 U.S.C. § l251(b). Searching the legislative 

history, the Court found nothing that "signifie[d] that Congress intended to exert anything 

more than its commerce power of navigation" and '''[t]he committee ... d[id] not redefine 

navigable waters.''' Id. at 683 n.3, n.6. By using the "term 'navigable' . . . Congress had in 

mind as its authority for enacting the CWA: its traditional jurisdiction over waters that 

were or had been navigable in fact or which could reasonably be so made." Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

504

Without explanation, the agencies’ proposed Rule seeks to adopt Justice Kennedy’s 

“significant nexus” test from Rapanos. But that approach to interpreting a Supreme Court 

plurality decision is plainly mistaken. In Marks v. United States, the Court announced a 

rule for interpreting its split decisions, stating that “[w]hen a fragmented Court decides a 

case and no single rationale explaining the result enjoys the assent of five Justices, the 

holding of the Court may be viewed as that position taken by those Members who 

concurred in the judgment on the narrowest grounds." 430 U.S. 188, 193 (1976) 

(emphasis added). "Narrowest grounds" has been interpreted by the D.C. Circuit to mean 

that opinion which is a "logical subset of other, broader opinions." King v. Palmer, 950 

F.2d 771, 781 (D.C. Cir. 1991). The ultimate goal is to find "a single legal standard ... 

[that] when properly applied, producers] results with which a majority of the Justices in 

the case articulating the standard would agree." Planned Parenthood of Southeastern Pa. 

v. Casey, 947 F.2d 682, 693 (3d Cir.1991), modified on other grounds, 505 U.S. 833 

(1992).

Applying the Marks rule to Rapanos, the Scalia plurality concurred with the judgment on 

the narrowest grounds. As a logical subset of the much broader Kennedy test, the Scalia 

plurality is the controlling position under Marks. Any body of water that satisfies the

Scalia plurality’s test would also satisfy Justice Kennedy’s “significant nexus” test. At 

least eight of the nine Justices would agree that any waters that satisfy Justice Scalia’s 

test are jurisdictional. Conversely, eight of the nine Justices expressly rejected Justice 

Kennedy’s significant nexus test. Scalia’s four-member plurality made it clear that 

“Justice Kennedy [simply] devised his new statute all on his own,” Rapanos 547 U.S. at 

756, and that the Court’s previous rulings had “explicitly rejected such caseby- case 

determinations.” Id. at 753. Likewise, SWANCC “specifically rejected the argument that 

physically unconnected ponds could be included based on the ecological connection to 

covered waters.” Id. at 754 (emphasis in orginal). Further, the “phrase appears nowhere 

in the Act” and can only be inserted “by ignoring the text of the statute.” Id. at 755. The 

plurality concluded “[i]t would have been an easy matter for Congress to give the Corps 

jurisdiction over all [waters] that ‘significantly affect the chemical, physical, and 

biological integrity of’ waters of the United States. It did not do that, but instead 

explicitly limited jurisdiction to ‘waters of the United States.’” Id. at 756. 

Even the Rapanos dissenters agreed on this point. Justice Stevens, joined by Justices 

Souter, Ginsburg, and Breyer, did “not share [Kennedy’s] view that we should replace 

regulatory standards that have been in place for over 30 years with a judicially crafted 

rule distilled from the term ‘significant nexus’ as used in SWANCC.” Id. at 808 (Stevens, 

J., dissenting). Indeed, Stevens noted that “SWANCC’s only use of the term comes in 

[one] sentence.” Id. “Justice Kennedy’s approach will have the effect of creating 

additional work for all concerned” with “no certain way of knowing whether they need” 

permits and the “Corps will have to make case-by-case” determinations. Id. at 809. 

“These problems are precisely the ones that Riverside Bayview . . . avoided.” Id. Justice 

Stevens concluded that he “see[s] no reason to” adopt the significant nexus test. Id. 

Nevertheless, the Rule proposed by the agencies inexplicably relies on Justice Kennedy’s 

“significant nexus” test to justify their new definitions: 

Because Justice Kennedy identified “significant nexus” as the touchstone for 

CWA jurisdiction, the agencies determined that it is reasonable and appropriate to 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

505

apply the ‘‘significant nexus’’ standard for CWA jurisdiction that Justice 

Kennedy’s opinion applied to adjacent wetlands to other categories of water 

bodies as well (such as to tributaries of traditional navigable waters or interstate 

waters, and to ‘‘other waters’’) to determine whether they are subject to CWA 

jurisdiction, either by rule or on a case-specific basis.983

Not only does this approach rely on the broadest concurring opinion in Rapanos, which 

the Marks rule dictates is not the Court’s holding, but it also would impose a rule that 

eight of the nine Rapanos Justices expressly rejected. Notably, the agencies never explain 

why they chose to single out Kennedy’s “significant nexus” test as the basis for their new 

definitions. Regardless, the significant nexus test has no proper place in the Agencies’ 

interpretation of “waters of the United States” under the CWA. It can find no support in 

either the statute or Supreme Court precedent. The Agencies’ reliance on Kennedy’s 

idiosyncratic interpretation to completely rewrite the jurisdictional reach of the CWA will 

not withstand judicial scrutiny. (p. 9-10)

Agency Response: No Circuit Court has taken the position suggested by the 

commenter. The rule is consistent with the statute and the caselaw. Technical 

Support Document, I.A and C. 

National Federation of Independent Business (Doc. #8319)

10.529 The CWA prohibits the discharge of pollutants into “navigable waters” and defines those 

waters as the “waters of the United States.” But, the Supreme Court has repeatedly 

rebuffed overly expansive interpretations of “waters of the United States.” Most recently 

in Rapanos, the Supreme Court made clear that jurisdictional wetlands must have some 

connection or nexus to “traditional navigable waters.” (p. 3)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.

10.530 Unfortunately, the Court offered two distinct tests for determining whether there is a 

sufficient connection or nexus to satisfy the constitutional requirement that CWA regulation 

bear some connection to interstate commerce. Under the plurality’s test, CWA jurisdiction 

may only be established where there is a continuous surface connection from traditional 

navigable waters, such that it is difficult to determine where the water body ends and the 

wetland begins. Rapanos, 547 U.S. at 742. By contrast, Justice Kennedy’s test would instead 

extend CWA jurisdiction to any wetland with a significant nexus to navigable waters. 

According to Justice Kennedy: 

‘[W]etlands 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.

To date the federal appellate courts are split as to which test is controlling. The Seventh, 

Ninth and Eleventh Circuits hold that Justice Kennedy’s “significant nexus” test controls. 

United States v. Gerke, 464 F.3d 723 (7th Cir. 2006); Northern California River Watch v. 

City of Healdsburg, 496 F.3d 993 (9th Cir. 2007); United States v. Robinson, 521 F.3d 1319 

 

983 79 Fed Reg. 22192.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

506

(11th Cir. 2008). Whereas the First and Eighth Circuits hold that jurisdiction may be 

established under either test. United States v. Johnson, 467 F.3d 56 (1st Cir. 2006); United 

States v. Baily, 571 F.3d 791 (8th Cir. 2009). And at least one district court has held that the 

plurality’s “continuous surface connection” test is controlling. United States v. Chevron Pipe 

Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006). (p. 3)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.

10.531 In the wake of Rapanos the regulated community, and regulators alike, struggled to make 

sense of the fact intensive “essential nexus” and “continuous surface connection” tests. 

To assist regulators in making jurisdictional assessments, the Agencies released a 

guidance document in December, 2008. Thereafter, the Agencies proposed a new 

guidance document in 2012. 

As we noted in a November 16, 2012 letter to the Office of Information and Regulatory 

Affairs, “the 2008 guidance was much more conservative than the newly proposed 2012 

guidance.” We explained that the 2008 guidance was mostly faithful in defining the 

contours of CWA jurisdiction in accordance with the Rapanos tests, whereas the 2012 

guidance liberally mischaracterized the Rapanos tests in order to justify more expansive 

jurisdictional assertions. Ultimately the Agencies abandoned the proposed 2012 

guidance, choosing instead to pursue this rulemaking; however, the Proposed Regulation 

defines CWA jurisdiction consistent with the expansive 2012 guidance. Accordingly, 

NFIB opposes the Proposed Regulation for the same reasons it opposed the 2012 

guidance. (p. 3-4)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C.

National Waterways Conference, Inc. (Doc. #12979)

10.532 The agencies’ proposal misconstrues the “significant nexus” test articulated in Justice 

Kennedy’s concurring opinion in Rapanos in a manner that impermissibly expands CWA 

jurisdiction. The Proposed Rule contains sweeping and vague definitions of “adjacent,” 

“tributary,” and other terms. In these and other ways, the proposal creates new, overbroad 

categories of jurisdictional areas that lack a significant nexus to traditionally navigable 

waters. In so doing, the proposal violates the law as established by Rapanos. The 

agencies also have greatly underestimated the costs that will be associated with their 

Proposed Rule. Finally, the process by which EPA proposed the rule has denied a 

reasonable opportunity for the public to review and comment on important scientific 

information. (p. 1)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C. The rule provides additional clarity and 

limitations. Preamble.

10.533 The meaning and intent of Rapanos have been the subject of extensive debate, but one 

aspect of the case is certain: it limits the agencies’ jurisdiction. The case vacated Sixth 

Circuit opinions that had upheld CWA jurisdiction in specific cases. The multiple 

opinions in the case lead to some complexity, but one aspect of the outcome is clear: 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

507

Rapanos did not invite the agencies to expand jurisdiction compared to the law prior to 

that case. (p. 3-4)

Agency Response: The rule is narrower than the existing regulation and is 

consistent with the statute and the caselaw. Technical Support Document, I.A and 

C.

10.534 Justice Kennedy’s concurring opinion in Rapanos establishes a “significant nexus” test 

for jurisdiction. However, the agencies’ interpretation of the Kennedy test in the 

Proposed Rule, like in the Draft Guidance, effectively reads the word “significant” out of 

the text. The adjective “significant” is essentially comparative in nature. For any one 

thing to be significant, there must be other things that are insignificant by comparison. 

However, the agencies have offered no example of a hydrologic connection that is 

insignificant. As explained below, the agencies would find jurisdiction even in some 

instances where there is no hydrologic connection at all. In other words, any connection 

is sufficient to establish jurisdiction. That result violates the “significant nexus” test. If 

the agencies deem all connections to be significant, none truly is.

No fair reading of the Kennedy opinion leads to the result reached by the agencies. 

Justice Kennedy clearly stated that a “mere hydrological connection should not suffice in 

all cases,” because “the connection may be too insubstantial for the hydrologic linkage to 

establish the required nexus.” He also stated that mere adjacency to a ditch described in 

the case was not sufficient to establish jurisdiction, because “a similar ditch could just as 

well be located many miles from any navigable-in-fact water and carry only insubstantial 

flows towards it.”

The Proposed Rule states that agencies should consider a water to have a significant 

nexus to jurisdictional waters if it—

“either alone or in combination with other similarly situated waters in the region 

(i.e., the watershed that drains to [traditional navigable waters, interstate waters, 

or the territorial seas]), significantly affects the chemical, physical, or biological 

integrity of [traditional navigable waters, interstate waters, or the territorial seas] . 

. . [that is] more than speculative or insubstantial.984

So the agencies will assert jurisdiction over waters that are remote, small in volume, and 

individually insignificant by amassing them with other waters the agencies may deem to 

be “similarly situated” in a watershed.

The Kennedy opinion refers to “similarly situated” wetlands in the context of discussing 

one possible component of the process of determining jurisdiction in some instances. 

However, that is different than applying jurisdiction over a water that has only an 

insignificant nexus on the grounds that it is similar to one or more other waters in the 

watershed which, collectively, have a more substantial connection to downstream waters. 

To the contrary, according to Justice Kennedy, “the Corps must establish a significant 

nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency.”985 

Justice Kennedy emphasized that individualized analysis because of, in his words, “the 

 

984 79 Fed. Reg. at 22,263. 

985 Rapanos, 547 U.S. at 782. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

508

potential overbreadth of the Corps’ regulations” and a need “to avoid unreasonable 

interpretations of the statute.”986

The Kennedy concurrence clearly envisions that there are some waters with a hydrologic 

connection that nevertheless are not jurisdictional.987 By contrast, virtually any nexus 

beyond “speculative” or “insubstantial” would result in a finding of jurisdiction under the 

agencies’ interpretation in the Proposed Rule. Even areas that lack a hydrologic 

connection to a traditional navigable water can be deemed jurisdictional under the 

Proposed Rule’s expansive test.988 Virtually any discernible downstream effect—such as 

the retention of any amount of upstream drainage, or a function resulting in the addition 

of any substance that the agencies may deem to be a nutrient, sediment, or pollutant—is 

sufficient to confer jurisdictional status.989 That is not a plausible interpretation of Justice 

Kennedy’s opinion.

Furthermore, the Proposed Rule robs the term “navigable” in “navigable waters” of any 

meaning, an outcome the Kennedy opinion explicitly forbids.990 The proposed language 

for concepts including “adjacent,” “neighboring,” and “tributary” expand the CWA’s 

reach to ditches, ephemeral drainages, ponds, and other waters that are too small, too far 

removed, with too speculative and insubstantial an effect on traditionally navigable 

waters, to allow any meaningful connection to navigability.

The agencies’ departure from the Kennedy concurrence is most clearly apparent when 

comparing the Proposed Rule to Justice Kennedy’s instructions to identify impacts to the 

“chemical, physical, and biological integrity” of traditional navigable waters. Where 

Justice Kennedy uses the conjunction “and” to refer to all kinds of impacts collectively, 

the agencies substitute “or,” allowing the identification of any one. The result of the 

agencies’ wordplay is an undeniably and unequivocally broader test than that articulated 

by Justice Kennedy. (p. 5-7)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C. The agencies significant nexus 

determinations are reasonable. Preamble, III; Technical Support Document, II.

Board of Directors, Protect Americans Now (Doc. #12726)

10.535 The establishment of “automatic jurisdiction” or “jurisdiction by rule” despite any water 

specific substantiation runs counter to logic, law and Justice Kennedy’s own 

requirements—whose opinion serves as almost the entire basis of support. 

See Rapanos, 547 U.S. at 781 (repudiating the ordinary high water mark standard as an 

appropriate factor for determining that tributaries are “waters of the United States” 

because “the breadth of th[e] standard...leave[s] room for regulation of drains, ditches, 

and streams remote from any navigable-in-fact water anad carrying only minor water 

 

986 Id. 

987 Id. at 784–85 (“Mere hydrologic connection should not suffice in all cases . . . .”).

988 79 Fed. Reg. at 22,213 (“A hydrologic connection is not necessary to establish a significant nexus . . . .”).

989 Id. 

990 Rapanos, 547 U.S. at 778–79 (“[T]he word ‘navigable’ in ‘navigable waters’ [must] be given some importance 

[and] some effect.”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

509

volumes toward it.”); id. at 781-82 (noting that “wetlands adjacent to” a tributary—as 

defined by the Corps—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 784–85 

(noting that even a direct hydrologic connection may not prove sufficient to establish the 

required nexus); id. at 786 (explaining that court’s reviewing significant nexus 

determinations “must identify substantial evidence supporting the Corps’ claims.”).

Here, the agencies’ Proposed Rule runs counter to fact specific investigations and 

determinations of significant nexus, or even actual connection, and applies jurisdiction 

by rule to broad categories of waters. “Similar to the ‘piling of inferences’ necessary to 

connect the regulated activity in Lopez and Morrison,” the nexus between navigable-infact or interstate waters and everything automatically included in the newly proposed 

definition of “tributary” and “adjacent waters” is clearly wanting. See Goudy-Bachman, 

811 F.Supp.2d at 1105. Furthermore, this is not the case where a “regulation ensnar[ing] 

some purely intrastate activity is of no moment” or “the de minimis character of 

individual instances arising under the statute is of no consequence.” Gonzalez v. Raich,

545 U.S. 1,17 and 22. Rather, this is the case where the agencies are attempting to codify 

a regulation that specifically targets “purely intrastate activity” and “individual 

instances.” Such efforts are beyond the limits envisioned by the Commerce Clause and 

cannot stand under the weight of even the most minimal of scrutiny. As such, the 

agencies Proposed Rule should be withdrawn in favor of more circumscribed ambition.

(p. 10)

Agency Response: The rule is consistent with the statute and the caselaw and the 

Constitution. Technical Support Document, I.A and C. The agencies significant 

nexus determinations are reasonable. Preamble, III; Technical Support Document, 

II.

10.536 The rule relies almost entirely on Justice Kennedy’s formulation of the “significant 

nexus” test as the basis of its scientific and legal authority. See 79 Fed. Reg. 22,259, app. 

B (relying on Justice Kennedy at least 12 separate times to support the proposed 

definition of “tributary”). As a matter of public policy, reliance on a standard developed 

and articulated by a single justice in a concurring opinion seems altogether unreliable for 

such a sweeping expansion of federal authority into the lives (and property) of so many 

Americans. Legally, the utilization of the “significant nexus” test is also inappropriate 

and should at least be replaced with the narrowest of potential interpretations from Court. 

See Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 

U.S. 153, 169 n. 15 (1976) (“the holding of the Court may be viewed as that position 

taken by those Members who concurred in judgments on the narrowest of grounds ...”).

“Significant nexus” has no basis in statutory text, no previous explanation in regulatory 

use, and has no observable qualities. That the phrase—now serving as the basis for all 

jurisdiction over “the waters of the United States”—appears nowhere in the text of the 

CWA should give pause and be reviewed with hesitation. See Utility Air Reg. Group v. 

EPA, No. 12-1146, slip op. (U.S. Jun. 23, 2014) (cautioning that “[w]hen an agency 

claims to discover in a long-extant statute an unheralded power to regulate a significant 

portion of the American economy, we typically greet its announcement with a measure of 

skepticism.”) The now common phrase is actually derived from the misplaced language 

in a Supreme Court opinion. See Rapanos, 547 U.S. at 754–55 (it “is taken from 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

510

SWANCC’s cryptic characterization of the holding of Riverside Bayview”); id. at 754 

(“Justice KENNEDY misreads SWANCC’s ‘significant nexus’ statement as 

mischaracterizing Riverside Bayview to adopt a case-by-case test of ecological 

significance.”).

The use of “significant nexus” is also dubious from a practical standpoint, as it has no 

observable qualities and cannot be easily established. To use such a standard for the basis 

of jurisdiction does little to ease the work of landowners or bureaucrats. For example, 

under the now proposed definition of “the waters of the United States,” a water adjacent 

to an intermittent ditch that flows into another ditch before finally emptying into the 

larger tributary of a navigable-in-fact water is itself a “tributary” and, therefore, 

“jurisdictional by rule.” However, the typical farmer or rancher is not going to know of 

these connections and will find it necessary to work with the bureaucrat. The bureaucrat 

will also not know the connections and will need to conduct the appropriate on-theground investigation, analysis and determination of all connections; unless, the agencies 

intend to utilize a pre-determined map of all jurisdictional waters. See United States 

House or Representatives Committee on Science, Space and Technology, EPA State and 

National Maps of Waters and Wetlands, http://science.house.gov/epa-maps-state-2013; 

see also Letter from Lamar Smith, Chairman of House Committee on Science, Space and 

Technology, to the Honorable Gina McCarthy, Administrator of the EPA (Aug. 27, 2014) 

available at http://science.house.gov/epa-maps-state-2013. (p. 11-12)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C. The agencies significant nexus 

determinations are reasonable. Preamble, III; Technical Support Document, II. 

Environmental Law Institute (Doc. #16406)

10.537 The Supreme Court’s 2006 ruling in Rapanos v. United States marked the rise of the legal 

term “significant nexus” as a jurisdictional test under the Clean Water Act. The question 

in Rapanos was whether the CWA covers wetlands that do not contain, and are not 

adjacent to, waters that are navigable in fact.991 Rapanos yielded two tests for CWA 

jurisdiction. Justice Antonin Scalia, writing for a plurality of four justices, concluded that 

jurisdiction is limited to circumstances where a wetland is both adjacent to, and has a 

continuous surface connection with, a “relatively permanent” body of water that is 

“connected to traditional interstate navigable waters.”992 Justice Kennedy’s concurring 

opinion articulates the contours of a “significant nexus” test in the CWA context.993 As 

authority for this test, Justice Kennedy relied on the Supreme Court’s use of the words 

 

991 Specifically, the Court faced two different factual scenarios arising out of two lower-court cases that had been 

consolidated for review. In the first (Rapanos), the wetlands in question shared a surface-water connection with nonnavigable tributaries of traditional navigable waters; and, in the second (Carabell), the wetlands at issue were 

separated by a berm from non-navigable tributaries of traditional navigable waters. In a 4-1-4 ruling, a total of five 

justices agreed to overturn the lower court decisions, which had found jurisdiction over the wetlands in question, and 

to send the cases back for further consideration. Rapanos, 547 U.S. at 729-30, 758-59

992 Id. At 742(Scalia, J. plurality)

993 Id. at 767 (Kennedy, J., concurring in the judgment). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

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“significant nexus” in the 2001 ruling Solid Waste Agency of Northern Cook County 

(SWANCC) v. U.S. Army Corps of Engineers.

994

For Justice Kennedy in Rapanos, significant nexus is to be assessed in terms of the goals

and purposes of the Act—namely, “to restore and maintain the chemical, physical, and 

biological integrity of the Nation’s waters.”995 Justice Kennedy recognized that a 

significant nexus might be assessed not only on a case-by-case basis, but also on a 

categorical basis, pursuant to agency regulation or adjudication.996 There must be “some 

measure of the significance of the connection for downstream water quality,”997 in the 

sense that when “wetlands’ effects on water quality are speculative or insubstantial,” 

there is no significant nexus.998 Justice Kennedy made clear that he was articulating a 

“legal standard.”999

As of April 2012, the Rapanos decision had been interpreted, applied, discussed, or cited 

in over ninety different cases, arising out of 35 states and Puerto Rico.1000 The U.S. 

Courts of Appeal that have addressed the issue have agreed that if a water satisfies Justice 

Kennedy’s significant nexus legal test, that water is jurisdictional.1001 And many courts 

have found CWA jurisdiction when either the Rapanos plurality test or the Kennedy 

significant nexus test has been satisfied.1002 The post-Rapanos case law tends to take a 

holistic, all facts and circumstances approach to the application of the significamt nexus 

test. 1003 This body of post-Rapanos precedent in the federal courts suggests that the 

 

994 Id. at 759 (Kennedy, J., concurring in the judgment) (citing SWANCC. v. Army Corps of Eng’rs, 531 U.S. 159, 

167, 172 (2001)). In SWANCC, the Court determined that an abandoned sand and gravel pit was not covered by the 

CWA. In so doing, the Court distinguished its unanimous 1985 decision in United States v. Riverside Bayview 

Homes, Inc., 474 U.S. 121 (1985), which held that the Corps had jurisdiction over wetlands that abutted a navigable 

waterway. The SWANCC majority explained that “[i]t was the significant nexus between the wetlands and 

‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.” SWANCC, 531 U.S. at 167. 

This reference to “significant nexus” was the SWANCC Court’s sole usage of that term, and the term does not appear 

in the Riverside Bayview Homes opinion. To date, the Supreme Court has used the exact words “significant nexus” 

only in the SWANCC and Rapanos decisions.

995 547 U.S. at 779 (Kennedy, J., concurring in the judgment) (CWA citation omitted).

996 E.g., id. at 780-82 (Kennedy, J., concurring in the judgment).

997 Id. at 784-85 (Kennedy, J., concurring in the judgment).

998 Id. at 780 (Kennedy, J., concurring in the judgment).

999 Id. at 783 (Kennedy, J., concurring in the judgment).

1000 Environmental Law Institute, The Clean Water Act Jurisdictional Handbook, 46 (2d ed. May 2012) (Case 

Appendix containing a compendium of post-Rapanos federal court decisions and EPA administrative rulings). Since 

the Handbook was published, more than 40 additional federal court opinions have discussed or cited to Rapanos.

1001 Id. 

1002 Id.

1003 The word “holistic” here is intended to be in contrast with an approach that separately examines the “nexus” and 

“significance” components of “significant nexus,” which would essentially establish a two-part test.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

512

significant nexus legal test is susceptible to being satisfied by a wide range of scientific 

data and other kinds of information.1004

As the Fourth Circuit explained in Precon Development Corp. v. U.S. Army Corps of 

Engineers, the significant nexus test “does not require laboratory tests or any particular 

quantitative measurements in order to establish significance.”1005 The court did, however, 

recognize that Justice Kennedy in Rapanos “clearly intended for some evidence of both a 

nexus and its significance to be presented.”1006 Similarly, in United States v. Cundiff, the 

Sixth Circuit stated that although laboratory analysis of soil samples or water samples, or 

other tests, could be persuasive evidence, there is nothing to indicate that this is the sole 

method by which significant nexus can be proved.1007

The words “significant nexus” have been used as a legal term of art for many years prior 

to the Rapanos decision, in many different legal and factual settings by federal and state 

courts around the country.1008 Before Justice Kennedy articulated a significant nexus test 

in Rapanos in 2006, this phrase had appeared in over 250 published and unpublished 

opinions issued by federal and state courts in contexts other than the Clean Water Act. 

Full citations to the complete list of opinions using the words “significant nexus,” prior to 

Rapanos and outside of the CWA context, are included in the annex to this comment.

This diverse case law using “significant nexus” dictates no particular approach for the 

agencies in applying the term post-Rapanos in the context of the CWA. Nonetheless, a 

survey of these cases is instructive. In short, none of these judicial opinions stands for the 

proposition that a “significant nexus” determination must be a technical, highly detailed, 

or otherwise formalistic inquiry. To the contrary, courts have often reviewed the various 

kinds of connections at issue (subject to the area of law and type of case) and reached 

 

1004 See id. at 47-104 (discussing, case by case, courts’ use of scientific data and other information to make 

significant nexus determination); see also id. at 21-22 (surveying the wide array of scientific and other technical 

resources and tools that might be used to inform a jurisdictional determination for a body of water: textbooks and 

treatises; delineation manuals for wetlands and streams; scientific journals; assessment methodologies for wetlands 

and streams; technical reports issued by federal and state agencies; watershed plans and assessments; wetland and 

stream databases; total maximum daily load (TMDL) and water quality management documents; publications, 

online resources, and research reports produced by state and local agencies and other entities, such as information 

from natural heritage programs and state wildlife action plans, and by organizations such as The Nature 

Conservancy, the Association of State Wetland Managers, and the National Academy of Sciences; local and regional 

aerial photographs or satellite images, historical and current; maps, historical and current (e.g., U.S. Geological 

Survey maps); land records, historical and current; historical evidence (e.g., from books, newspapers, local histories, 

or testimony of residents) of how waters were used in the past; regional flood analyses; results of water tests that

demonstrate downstream flow of pollutants; and results of flow measurements.

1005 633 F.3d 278, 294 (4th Cir. 2011).

1006 Id. The court further explained that while there must be evidence of both a nexus and wetlands’ significance to 

downstream waters, documentation “need not take the form of any particular measurements” and can be either 

qualitative or quantitative. Id. at 293-94, 297.. The Fourth Circuit in Precon determined that the administrative 

record in that case contained insufficient information to assess the Corps’ conclusion that a significant nexus was 

present. Id. at 297. On remand in Precon, the district court determined that the Corps has supported its determination 

of significant nexus. Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, 984 F. Supp. 2d 538, 544 (E.D. Va. 2013).

1007 555 F.3d 200, 211 (6th Cir. 2009).

1008 See Environmental Law Institute, The Clean Water Act Jurisdictional Handbook 18, n.72 (2007). Based on a 

sampling of these cases, ELI concluded that the case law did not support a reading of “significant nexus” that would 

have the effect of reducing it to a discrete, two-part determination of “nexus” and “significance.”
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

513

their determination on the presence or absence of a significant nexus with little 

analysis.1009 The cases do not suggest that any particular type of evidence, quantitative or 

otherwise, is required for determining a nexus’ significance.

The legal and factual contexts in which the words “significant nexus” are used vary 

widely. Pursuant to the Foreign Sovereign Immunities Act (FSIA),1010 a foreign state is 

not immune from U.S. court jurisdiction for its commercial activities that have a direct 

effect in the United States. This exception to immunity applies where there is a 

significant nexus between a particular cause of action in a lawsuit and the commercial 

activity carried on in the United States.1011 For example, in a tort action brought in a U.S. 

court on behalf of Mexican decedents killed on a crashed flight operated by the Mexican 

national airline, with tickets purchased in Mexico and points of departure and arrival in 

Mexico, no significant nexus existed. This was despite the fact that the airplane had been 

recently serviced in Chicago, and the particular flight was due to land eventually in Los 

Angeles.1012

Pursuant to suits brought under 42 U.S.C. § 1983, a court may be asked to determine 

whether a private individual who actively conspires with an absolutely immune state 

official, with the intent to deprive another of Constitutional rights, is acting under “color 

of state law.”1013 The question becomes whether there is a significant nexus or 

entanglement between the absolutely immune state official and the private party in 

relation to the steps taken by each to fulfill the objects of their conspiracy. The Tenth 

Circuit has said that “the resolution of such issues must, of necessity, be made on a caseto-case basis.”1014

In yet another context, a federal district court considering the transfer and centralization 

of various cases to a new Multi-District Litigation (MDL) docket noted that the Eastern 

District of Michigan had a significant nexus to the litigation, and was thus an appropriate 

forum.1015 This district was where many relevant documents and witnesses were likely to 

be found, as the defendant’s principal place of business was located there. Also, the state 

was the situs of related state court actions, allowing for easy coordination of discovery 

between state and federal proceedings.1016

Many more examples of how courts have made determinations of significant nexus 

outside of the CWA context can be found in the case citations contained in the annex to 

this comment. (p. 2-5)

 

1009 In fact, in many of the cases “significant” is appended to “nexus” as a modifying adjective in a manner that 

could not be considered to have legal significance. See, e.g., State v. Schnoering, No. 95CA006044, 1995 WL 

678522, at *1 (Ohio Ct. App. Nov. 15, 1995) (in venue context, using “significant nexus” interchangeably with 

“sufficient nexus” in finding venue in any county where “the offense or any element of the offense was 

committed.”).

1010 28 U.S.C. §§ 1602-11

1011 See, e.g., Compania Mexicana de Aviacion, S.A. v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 859 F.2d 1354, 

1359-60(9th Cir. 1988)

1012 Id. at 1360.

1013 See, e.g., Norton v. Liddel, 620 F.2d 1375, 1380 (10th Cir. 1980).

1014 Id.

1015 In re Delphi Corp. Secs., Derivative & “ERISA” Litig., 403 F. Supp. 2d 1358, 1360 (J. P. M. L. 2005).

1016 Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

514

Agency Response: This is a description of cases; to the extent this is a comment 

that requires a response the agencies agree that the rule is consistent with the statute 

and the caselaw. Technical Support Document, I.A and C. The agencies significant 

nexus determinations are reasonable. Preamble, III; Technical Support Document, 

II.

Coalition of Alabama Waterways (Doc. #15101)

10.538 The agencies claim that “the scope of regulatory jurisdiction in this proposed rule is 

narrower than that under the existing regulations.”1017 We agree that Rapanos requires 

that to be so, but the statement is not accurate. 

The agencies misconstrue the “significant nexus” test. 

Justice Kennedy’s concurring opinion in Rapanos establishes a “significant nexus” test 

for jurisdiction. However, the agencies’ interpretation of the Kennedy test in the 

Proposed Rule, like in the Draft Guidance, effectively reads the word “significant” out of 

the text. The adjective “significant” is essentially comparative in nature. For any one 

thing to be significant, there must be other things that are insignificant by comparison. 

However, the agencies have offered no example of a hydrologic connection that is 

insignificant. As explained below, the agencies would find jurisdiction even in some 

instances where there is no hydrologic connection at all. In other words, any connection 

is sufficient to establish jurisdiction. That result violates the “significant nexus” test. If 

the agencies deem all connections to be significant, none truly is. 

No fair reading of the Kennedy opinion leads to the result reached by the agencies. 

Justice Kennedy clearly stated that a “mere hydrological connection should not suffice in 

all cases,” because “the connection may be too insubstantial for the hydrologic linkage to 

establish the required nexus.” He also stated that mere adjacency to a ditch described in 

the case was not sufficient to establish jurisdiction, because “a similar ditch could just as 

well be located many miles from any navigable-in-fact water and carry only insubstantial 

flows towards it.” 

The Proposed Rule states that agencies should consider a water to have a significant 

nexus to jurisdictional waters if it—

“either alone or in combination with other similarly situated waters in the region 

(i.e., the watershed that drains to [traditional navigable waters, interstate waters, 

or the territorial seas]), significantly affects the chemical, physical, or biological 

integrity of [traditional navigable waters, interstate waters, or the territorial 

seas]...[that is] more than speculative or insubstantial.1018 (p. 6)

Agency Response: The rule is narrower in scope than the existing regulation and 

the rule is consistent with the statute and the caselaw. Technical Support 

Document, I.A, B. and C. The agencies significant nexus determinations are 

reasonable. Preamble, III; Technical Support Document, II.

 

1017 79 Fed. Reg. at 22,189

1018 79 Fed. Reg. at 22,263 (emphasis added)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

515

10.539 So the agencies will assert jurisdiction over waters that are remote, small in volume, and 

individually insignificant by amassing them with other waters the agencies may deem to

be “similarly situated” in a watershed.

The Kennedy opinion refers to “similarly situated” wetlands in the context of discussing

one possible component of the process of determining jurisdiction in some instances.

However, that is different than applying jurisdiction over a water that has only an

insignificant nexus on the grounds that it is similar to one or more other waters in the

watershed which, collectively, have a more substantial connection to downstream waters. 

To the contrary, according to Justice Kennedy, “the Corps must establish a significant 

nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency.”1019

Justice Kennedy emphasized that individualized analysis because of, in his words, “the 

potential overbreadth of the Corps’ regulations” and a need “to avoid unreasonable 

interpretations of the statute.”1020

The Kennedy concurrence clearly envisions that there are some waters with a hydrologic 

connection that nevertheless are not jurisdictional.1021 By contrast, virtually any nexus 

beyond “speculative” or “insubstantial” would result in a finding of jurisdiction under the 

agencies’ interpretation in the Proposed Rule. Even areas that lack a hydrologic 

connection to a traditional navigable water can be deemed jurisdictional under the 

Proposed Rule’s expansive test.1022Virtually any discernible downstream effect—such as 

the retention of any amount of upstream drainage, or a function resulting in the addition 

of any substance that the agencies may deem to be a nutrient, sediment, or pollutant—is 

sufficient to confer jurisdictional status.1023 That is not a plausible interpretation of 

Justice Kennedy’s opinion.

Furthermore, the Proposed Rule robs the term “navigable” in “navigable waters” of any

meaning, an outcome the Kennedy opinion explicitly forbids.1024 The proposed language

for concepts including “adjacent,” “neighboring,” and “tributary” expand the CWA’s 

reach to ditches, ephemeral drainages, ponds, and other waters that are too small, too far 

removed, with too speculative and insubstantial an effect on traditionally navigable 

waters, to allow any meaningful connection to navigability. 

The agencies’ departure from the Kennedy concurrence is most clearly apparent when 

comparing the Proposed Rule to Justice Kennedy’s instructions to identify impacts to the 

“chemical, physical, and biological integrity” of traditional navigable waters. Where 

Justice Kennedy uses the conjunction “and” to refer to all kinds of impacts collectively, 

the agencies substitute “or,” allowing the identification of any one. The result of the 

agencies’ wordplay is an undeniably and unequivocally broader test than that articulated 

by Justice Kennedy. (p. 7-8)

 

1019 Rapanos, 547 U.S. at 782.

1020 Id.

1021 Id. at 784–85 (“Mere hydrologic connection should not suffice in all cases . . . .”).

1022 79 Fed. Reg. at 22,213 (“A hydrologic connection is not necessary to establish a significant nexus . . . .”).

1023 Id.

1024 Rapanos, 547 U.S. at 778–79 (“[T]he word ‘navigable’ in ‘navigable waters’ [must] be given some importance 

[and] some effect.”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

516

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C. The agencies significant nexus 

determinations are reasonable. Preamble, III; Technical Support Document, II.

Hackensack Riverkeeper et al. (Doc. #15360)

10.540 Impacts on navigable waters are among the reasons that our organizations prioritize the 

protection of wetlands. We all work in watersheds where many of the native wetlands 

have been destroyed or altered by development. We find that losing wetlands causes 

additional flooding and lower water quality that we can see in our every day work. It is 

vital that the definition of Waters of the United States include as many wetlands as are 

scientifically justified and permissible under Supreme Court case law. Thus, if the 

definition of Waters of the United States is to include 

those waters found jurisdictional under Justice Kennedy’s test, it must include 

Waters and wetlands possessing a significant nexus to navigable waters, meaning 

that 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. (p. 9-10)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C. The agencies significant nexus 

determinations are reasonable. Preamble, III; Technical Support Document, II.

Everglades Law Center and Center for Biological Diversity (Doc. #15545)

10.541 Connectivity to more traditionally navigable waters, however, is not limited to physical 

connections nor should jurisdiction under the “significant nexus” test depend on a finding 

of all three forms of connectivity (physical, chemical, and biological). Justice Kennedy 

stated in his concurring opinion in Rapanos that “the required nexus must be assessed in 

terms of the statute’s goals and purposes. Congress enacted the [CWA] to ‘restore and 

maintain the chemical, physical, and biological integrity of the Nation’s waters.’”1025

Therefore, a showing of any one of these connections should satisfy the significant nexus 

standard set forth in Justice Kennedy’s concurrence in Rapanos and we agree with the 

Corps and EPA that “it would subvert the intent if the CWA only protected waters upon a 

showing that they had effects on every attribute of a traditional navigable water, interstate 

water, or territorial sea.”1026 Further, as Justice Kennedy recognized, a hydrologic 

connection is not necessary to establish a significant nexus because in some instances the 

lack of a connection shows the water’s significance to the aquatic system. This is 

particularly true for those small, isolated wetlands that otherwise have a biological or 

chemical connection and serve as breeding sites for amphibians and are free of fish and 

other predators. (p.7)

Agency Response: The agencies agree.

 

1025 Rapanos, 547 U.S. at 779.

1026 79 Fed. Reg. 22261.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

517

George Washington University Regulatory Studies Center (Doc. #13563)

10.542 The center of gravity of the Agencies’ proposed rule is its reliance on the concept of 

“significant nexus” which is defined only in negative terms and is the crux of the 4-1-4 

Rapanos decision, most notably Justice Kennedy’s controlling opinion. However, the 

Agencies, in both their proposed rule as well as their legal analysis (Appendix B)1027, 

minimize or ignore the central holding of SWANCC as to the resilience of navigability as 

the true touchstone of CWA jurisdiction and the exclusion from jurisdiction of waters or 

wetlands that are non-navigable, isolated and intrastate. (p. 6)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.543 Justice Kennedy’s discussion of the role of “significant nexus” must be read in the 

context of this decision. To read Rapanos in isolation of SWANCC removes necessary 

context from interpretation of what constitutes a significant nexus. The Agencies have 

decontextualized Justice Kennedy’s opinion and the holding of Rapanos resulting in an 

over-broad application of significant nexus, say, to all tributaries or, prospectively, to 

prairie potholes. These resources are worthy of protection, but the question is to what 

extent the CWA allocates that responsibility to the federal government or the states’ 

traditional authority over land use.

A careful reading1028 of Justice Kennedy’s opinion in Rapanos indicates that he was not 

offering his version of the “significant test” as a vehicle to expand federal CWA 

jurisdiction up the Continental Divide or anywhere close. Although the Court has held 

that the statute’s language invokes:

Congress’s traditional authority over waters navigable in fact or susceptible of 

being made so...the dissent would permit federal regulation whenever wetlands 

alongside a ditch or drain, however remote or insubstantial, that eventually may 

flow into traditional navigable waters. The deference owed to the Corps’ 

interpretation of the statute does not extend so far.1029

Justice Kennedy clearly sees limits to adjacency to navigable waters, “however remote 

and insubstantial,” which strain the rule in Riverside Bayview Homes. And so “the Corps’ 

assertion of jurisdiction cannot rest on that case.”1030

While Justice Kennedy certainly does rely on “significant nexus” in his opinion, that 

concept must be understood in the context of SWANCC. In other words, it must be 

cabined off by the limits on jurisdictionality of waters and wetlands which are nonnavigable, isolated and interstate.

In sum, Rapanos did not overrule SWANCC. As noted above, “significant nexus” is not a 

scientific term. Nor is the fundamental question of jurisdiction purely a matter of 

ecology. As such, jurisdiction pertains to federalism and the allocation of power between 

 

1027 79 FR 22252 et seq.

1028 My thanks to Virginia Albrecht of Hunton & Williams for her insights here.

1029 Rapanos v. United States, 547 U.S. 715, 778-779.

1030 Id at 780.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

518

federal and state governments. Connectivity does not trump navigability for purposes of 

determining CWA jurisdiction.

The Agencies should defer promulgation of the rule and seek public comment on the 

relationship of SWANCC to Rapanos and revise both the rule and Appendix B 

accordingly. (p. 6-7)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A and C. The agencies significant nexus 

determinations are reasonable. Preamble, III; Technical Support Document, II.

10.544 Finally, the proposed rule does not address the question of its application to waters “that 

were previously found to be non-jurisdictional, but that are re-evaluated and found to be 

jurisdictional,” raising the issues of retroactivity and grandfathering.1031 Even taking the 

Agencies conservative assessment in their Economic Analysis accompanying the 

proposed rule that roughly an additional 3 percent of waters would be subject to 

jurisdiction, including 17 percent of “other waters” due to all tributaries and adjacent 

wetlands being deemed jurisdictional,1032 it is a matter which needs further comment.

The Agencies do not address the issues of retroactivity or “grandfathering,” relative to 

waters previously non-jurisdictional but are reevaluated and found to be jurisdictional 

under the proposed rule. (p. 9-10)

Agency Response: The rule is effective on [60 days after Federal Register 

publication]. Under existing Corps’ regulations and guidance, Corps’ approved 

jurisdictional determinations generally are valid for five years. The agencies will not 

reopen existing approved jurisdictional determinations unless requested to do so by 

the applicant. All jurisdictional determinations made on or after the effective date 

of this rule will be made consistent with this rule. Similarly, consistent with existing 

regulations and guidance, jurisdictional delineations associated with issued permits 

and authorizations are valid until the expiration date of the permit or authorization. 

Preamble. See the Economic Analysis for an explanation of methodology.

Michael Bamford, Director, The Property Which Water Occupies (Doc. #8610)

10.545 Because deference to interpreting significant is awarded to agency, the failure of the 

Rules to identify the limits to what are, or may be, significant impacts to navigable 

waters, the scope of CWA jurisdictional authority leaves open-ended the extent to which 

the CWA could be evoked over private property. Making the Rules themselves a 

continuation of the arbitrary and capricious standard for invoking the CWA jurisdiction 

deemed an overreach by the US Supreme Court. By failing to first establish what may be 

a threat to public/navigable waters, the Rules cloud the boundary between states rights, 

private property rights, and federal authority under the auspice of protecting water 

 

1031 ACOEL at p. 46

1032 U.S. Environmental Protection Agency and U.S. Army Corps of Engineers, Economic Analysis of Proposed 

Revised Definitions of the Waters of the United States, March 2014, p. 12. For a critique of this analysis, see David 

Sundig, Ph.D., Review of 2014 EPA Economic Analysis of Proposed Revised Definition of Waters of the United 

States (The Brattle Group), May 15, 2014, prepared for The Waters Advocacy Coalition.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

519

quality; the Rules clarify jurisdiction by unlawfully failing to avoid interference with 

property rights. 

Clarification as to where there is water which may be hydrologically connected is 

insufficient to invoke CWA jurisdiction over private lands. By failing to define the limits 

of CWA jurisdiction beyond navigable waters, the Rules exceeds the stated purpose of 

the CWA and the will of Congress. Such broad self-claimed authority by a federal agency 

over private property is far in excess of any delegated authority and illegal without 

providing for just compensation for taking control of private property for the public 

purpose. The Rules should not claim such broad discretion leaving constitutional 

questions of taking up to the judiciary to resolve whenever CWA jurisdiction is invoked. 

(p. 12-13)

Agency Response: The rule is consistent with the statute and the caselaw and the 

Constitution. Technical Support Document, I.A and C. The agencies significant 

nexus determinations are reasonable. Preamble, III; Technical Support Document, 

II.

10.5. DITCHES

Agency Summary Response:

As explained in the preamble to the rule and the TSD Section I, ditches are regulated under the 

rule as “waters of the United States” only if they both meet the definition of tributary and are not 

excluded under paragraph (b) of the rule. As a result, to be a regulated water, a ditch must 

contribute flow to a traditional navigable water, interstate water or territorial sea and have 

indicators of bed and banks and an ordinary high water mark. A ditch that is thus a “tributary” 

may nonetheless be excluded. The exclusions under paragraph (b) have been clarified in the 

final rule and address three categories of ditches, as well as several related features, such as 

conveyances for stormwater control created in dry land. The regulation of the remaining ditches 

is consistent with the statute and case law. As explained in the preamble to the final rule and the 

TSD, the science shows that tributary ditches function in the same manner as other tributaries 

and thus have a significant nexus to traditional navigable waters, interstate waters, and the 

territorial seas. 

Specific Comments

Waterlaw (Doc. #13053)

10.546 Rapanos does not authorize including ditches as tributaries. J. Kennedy’s concurring 

opinion in Rapanos, together with the plurality opinion, instructs the Corps that its 

position that “all ditches with any connection to streams that themselves may have some 

connection to navigable in-fact waters constitute tributaries to the waters of the United 

States” is not supported by the CWA’s language. Rapanos at 734, 778-9. Yet the Rule 

continues to apply nearly the same expansive interpretation as if Rapanos had never been 

decided and a majority of the Justices had not spoken. Including ditches as tributaries is 

predicated on an approach that all ditches meet the significant nexus test unless they meet 

the Agencies’ limited exemptions. The Rule is the first time the regulatory definition of 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

520

waters of the United States includes man-made water supply ditches. However a close 

reading of Rapanos does not support extending jurisdiction to man-made water supply 

ditches. (p. 2) 

Agency Response: While the rule did not previously expressly include ditches, 

ditches have historically been regulated as tributaries consistent with the case law. 

See summary response and Technical Support Document, I.A., and C. See also 

Ditches Compendium for a discussion of water supply ditches.

Waters Advocacy Coalition (Doc. #19721.1)

10.547 Contrary to Rapanos, which made clear that CWA jurisdiction does not extend to many 

ditches, even those ditches that connect to waters of the United States, the proposed rule 

would extend jurisdiction to a significant number of ditches. For the first time, the 

proposed rule expressly includes “ditches” in the definition of tributary, meaning that 

ditches with a bed, bank, and OHWM that contribute flow will categorically be 

jurisdictional unless they meet one of the narrow ditch exclusions. 79 Fed. Reg. at 

22,263. The proposed rule excludes ditches in two very limited circumstances: (1) ditches 

excavated wholly in uplands for their entire length, draining only uplands, with less than 

perennial flow, and (2) ditches that do not contribute flow, directly or indirectly, to a 

traditional navigable water, interstate water, territorial sea, or impoundment. Id. at 

22,203. As discussed in more detail in section III.C., most ditches will not satisfy the 

rigorous standards of these narrow exclusions, and therefore, under the proposed rule, 

many ditches will be regulated as tributaries regardless of their function, contribution to, 

or distance from traditional navigable waters.

Both the Rapanos plurality and Justice Kennedy’s concurrence made it clear that many 

ditches should not be subject to CWA jurisdiction. The plurality emphasized the plain 

language of the CWA in regulating “navigable” waters and rebuked the agencies for 

regulating ditches, drains, and desert washes far removed from navigable waters. 

Rapanos, 547 U.S. at 733-34. The plurality interpreted the phrase “waters of the United 

States” to include only “those relatively permanent, standing or continuously flowing 

bodies of water ‘forming geographic features’ that are described in ordinary parlance as 

‘streams [,] . . . oceans, rivers, [and] lakes,” and would exclude “channels through which 

water flows intermittently or ephemerally, or channels that periodically provide drainage 

for rainfall.” Id. at 739. Likewise, Justice Kennedy noted, with disapproval, that the 

dissent “would permit federal regulation whenever wetlands lie alongside a ditch or 

drain, however remote and insubstantial, that eventually may flow into traditional 

navigable waters,” and concluded that “[t]he deference owed to the Corps’ interpretation 

does not extend so far.” Id. at 778-79. Justice Kennedy also expressed concern with the 

agencies’ existing tributary standard because it “leave[s] wide room for regulation of 

drains, ditches, and streams remote from any navigable-in-fact water and carrying only 

minor water volumes.” Id. at 781. 

The proposed rule ignores all of this language and sets up a structure where many ditches 

that are remote from any navigable-in-fact water and that carry only minor water volumes 

are categorically jurisdictional. Based on the limits acknowledged by the Rapanos Court, 

ditches should be excluded from jurisdiction. (p. 102-103) 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

521

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A., and C. In the final rule, the agencies made 

changes to the exclusions provision, including the exclusion for ditches. Preamble, 

IV and Ditches Compendium. See summary response. The ditches that are 

regulated must meet the definition of tributary and not be excluded under 

paragraph (b). These remaining ditches have a significant nexus to traditional 

navigable waters, interstate waters and the territorial seas. As a result, the rule is 

consistent with the statute and the caselaw. Technical Support Document, I.A., and 

C. In the final rule, the agencies clarified the exclusions provision, including the 

exclusion for ditches. Preamble Section IV and Ditches Compendium.

Missouri Agribusiness Association (Doc. #13025)

10.548 But if we were just to focus upon the Kennedy opinion, the agencies did not follow the 

limited scope that even Kennedy envisioned. Kennedy said ditches and streams remote 

from any navigable -in-fact water and carrying only minor water volumes toward it put 

common sense and lawful parameters upon the significant nexus concept by recognizing 

"minor water volumes" do not result in a significant nexus. This, however, is not 

reflective in the proposed rule with its inclusion of the 'minor water volumes' such as 

those in ephemeral streams. Kennedy continued this theme with his concern of including 

adjacent waters regardless how "however remote and insubstantial.” (p. 2)

Agency Response: Ephemeral ditches that do not meet the definition of tributary 

are not regulated under the final rule; in additional many ephemeral ditches are 

explicitly excluded. See summary response. 

Multiple Agricultural Agencies (Doc. #16357.1)

10.549 The Agencies mistakenly claim that jurisdiction over ditches in the 2008 post-Rapanos

guidance was broader than in the current proposal. See Clean Water Act Jurisdiction 

Following the U.S. Supreme Court’s Decision in Rapanos v. U.S. & Carabell v. U.S.

(U.S. EPA and U.S. Army Corps of Engineers, Dec. 2, 2008). Although the 2008 

guidance excluded from regulation ditches that do not carry a “relatively permanent 

flow” (versus the proposal’s less than perennial flow), that exclusion was not part of a 

broader regulatory expansion that categorically defined both ephemeral drainages and 

ditches as tributaries. Moreover, the Agencies have asked for comment on whether the 

appropriate standard should be the “less than intermittent flow” standard. 79 Fed. Reg. at 

22,203; 22,219. At the same time the Agencies are trying to convince farmers and 

ranchers that the proposed rule will not regulate ditches, they are also asking the public 

for additional comment and considering an even narrower exemption than has been 

proposed. (p. 10)

Agency Response: The scope of the rule, as compared to historical jurisdiction, is 

explained in detail in the TSD at Section I.b.iii.

Association of American Railroads (Doc. #15018.1)

10.550 The Agencies have proposed a new definition of “tributary” to Waters of the United 

States that specifically includes ditches. “A tributary, including wetlands, can be a 

natural, man-altered, or man-made water and includes waters such as rivers, streams, 

lakes, ponds, impoundments, canals, and ditches not excluded in paragraph (2)(iii) or 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

522

(iv)1033 of this definition.” 79 Fed. Reg. at 22,262-22,274 (amending 33 C.F.R. Part 328, 

40 C.F.R. Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401. However, the 

CWA statute and regulations already define a ditch as a point source. 

Ditches are point sources, not Waters of the United States. 

(a) The CWA defines ditches as Point Sources The text of the CWA explicitly states that 

a ditch is a point source. A “point source” is “any discernible, confined and discrete 

conveyance, including but not limited to any pipe, ditch...from which pollutants are or 

may be discharged.” 33 U.S.C. § 1362(14). As the Supreme Court and many courts have 

noted, point source and navigable waters are “two separate and distinct categories.”1034

The proposed rule eliminates any meaningful distinction between point sources and 

Waters of the U.S. in contravention of these court decisions. (p. 4-5)

Agency Response: A ditch may in some circumstances be both a point source and 

a “water of the United States.” Technical Support Document, I.C.

10.6. FEATURES AND WATERS NOT JURISDICTIONAL

Agency Summary Response

As explained in the TSD, Section I.c., a water may be both a point source and a “water of the 

United States.” However, the final rule excludes from the definition of “water of the United 

States” any stormwater control feature constructed in dry land to convey, treat or store 

stormwater. As a result, most municipal stormwater conveyances will be excluded from 

regulation as a water of the US. See Exclusions Compendium and Preamble Section IV.

Specific Comments

Waters of the United States Coalition (Doc. #14589)

10.551 In adopting Section 402(p), Congress defined the MS4 as a point source, established a 

specific standard for discharges from the MS4, and exempted MS4s from compliance 

with the Water Quality Standards and TMDL requirements applicable to Waters of the 

United States through Clean Water Act section 303. (Defenders of Wildlife v. Browner, 

191 F.3d 1159 (9th Cir. 1999).) This Congressional determination per se defines MS4s as 

a point source and not waters of the United States. Any other reading would write the 

MEP standard out of the Act.

 

1033 Identification of the exclusion differs for several Code of Federal Regulation Sections. For example, 33 C.F.R. 

Part 328 and 40 C.F.R. Part 117 ditch exclusion is located at sections (b)(3) and (4); 40 C.F.R. Parts 110, 112, 116, 

232, 300 and 302 ditch exclusion is located at sections (2)(iii) and (iv); 40 C.F.R. Part 230 ditch exclusion is located 

at sections (t)(3) and (4); 40 C.F.R. Part 401 ditch exclusion is located at sections (l)(2)(iii) and (iv). Aside from the 

citation, the language for each exclusion is identical.

1034 Rapanos v. United States, 547 U.S. 715, 735-36 (2006). See also 547 U.S. at 759 (“as relevant here, the term 

“discharge of a pollutant” means “any addition of any pollutant to navigable waters from any point source.”); Sierra 

Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1137, 1141 (C.A.10 2005) (2.5 miles of tunnel separated the 

“point source” and “navigable waters”).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

523

As noted in Los Angeles County Flood Control v. NRDC, the MS4 is a complex system 

of open drains, swales and channels that convey floodwaters off of public streets and into 

the Waters of the United States. These systems are often fenced and not designed to be 

used for fishable, swimmable purposes. MS4s are a flood control system first and since 

1987 have also become a treatment system. Attaining Water Quality Standards within the 

treatment system is not the purpose of the Clean Water Act and a definition of waters of 

the United States that requires this outcome violates the plain text of the Act. (p. 30-31)

Agency Response: See summary response.

Coalition of Real Estate Associations (Doc. #5058.2)

10.552 The CWA’s overriding regulatory objective is to prohibit pollutant discharges without a 

permit – such as a permit issued under the NPDES program.1035 Stormwater that conveys 

pollutants”1036 from a “point source”1037 into WOTUS are a type of “discharge”1038 that 

triggers NPDES permitting requirements. 

 

1035 33 U.S.C. §§ 1311(a), 1342(a); see Envt’l Def. Ctr. v. EPA, 344 F. 3d 832, 841 (9th Cir. 2003) (“EDC”) (the 

CWA “prohibits the discharge of pollutants from a ‘point source’ into the waters of the United States without a 

permit issued under the terms of the National Pollutant Discharge Elimination System ....”).

1036 While Congress exempted most discharges “composed entirely of stormwater” (i.e., not mixed with wastewater 

or other regulated discharges) (33 U.S.C. § 402(p)(1), it specifically identified certain MS4 and industrial 

stormwater pollutant sources for permitting to control pollutants discharged in stormwater from those point sources. 

The CWA defines “pollutants” to mean wastes like “dredged spoil, solid waste, ... sewage, garbage sewage sludge, 

... chemical wastes, biological materials, ... heat, ... rock, sand, cellar dirt, and industrial, municipal and 

agricultural waste discharged into water.” 33 U.S.C. § 1362(6). See LA Cnty. Flood Control Dist. v. NRDC, 133 S. 

Ct. 710, 712 (2013) (“Because stormwater is often heavily polluted, ... the CWA and its implementing regulations 

require the operator of an MS4 ... to obtain a [NPDES] permit before discharging storm water into navigable 

waters”); EDC, 344 F.3d at 840-841 (“Storm sewer waters carry suspended metals, sediments, algae-promoting 

nutrients (nitrogen and phosphorous), floatable trash, used motor oil, raw sewage, pesticides, and other toxic 

contaminants ....”) In Virginia DOT v. EPA, 2013 WL 53741 (E.D. Va., Jan. 3, 2013), the court held that EPA did 

not have the statutory authority to establish a Total Maximum Daily Load (TMDL) based on “stormwater flow rate” 

as a “surrogate” or “proxy” for sediment. Id. at *2, *3. For purposes of the CWA, the court stated “sediment is a 

pollutant, ... but stormwater is not. “ Id. at *3. In short, stormwater is subject to NPDES permit requirements to the 

extent such runoff discharges “pollutants” into WOTUS.

1037 “The term ‘point source’ means any discernible, defined and discrete conveyance, including but not limited to, 

any pipe, ditch, channel, tunnel, conduit, well ... [or] container ... from which pollutants are or may be discharged.” 

33 U.S.C. § 1362(14); 40 C.F.R. § 122.2.

1038 The CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any 

point source ....” 33 U.S.C. § 1362(12) (emphasis supplied). Thus, in the “discharge” definition, Congress 

distinguished between “navigable waters” (defined to mean WOTUS at 33 U.S.C. § 1362(7)) on the one hand, and 

“point sources” on the other hand. EPA regulations likewise specify that “discharge of a pollutant” includes 

“additions of pollutants into [WOTUS] from ... discharges through pipes, sewers, or other conveyances owned by a 

State, municipality, or other person which do not lead to a treatment works ...” 40 C.F.R. § 122.2. Thus, “point 

sources” (like MS4s) serve the function to convey and carry pollutants, and are features from which pollutants are 

discharged into WOTUS . But “point sources” are not themselves WOTUS. Congress did not give the Agencies 

broad authority over “point sources” as conveyances per se -- but only conferred limited federal permitting authority 

over the activity of a “discharge” when a “point source” adds a pollutant to WOTUS. See S. Fla. Water Mgmt. Dist. 

v. Miccosukee Tribe, 541 U.S. 95, 109-110 (2004) (emphasizing that CWA permits are required for “any addition” 

of pollutants to WOTUS, not the movement of pollutants within the same waterbody).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

524

In 1987, to better regulate pollution conveyed by stormwater runoff, Congress enacted ... 

§ 402(p), [entitled] ‘Municipal and Industrial Stormwater Discharges.’”1039 By requiring 

stormwater discharge permits under CWA section 402, Congress made “the stormwater 

program ... part of the (NPDES) Program....”

1040 Municipal pollutant discharges from 

MS4s are one of three categories of stormwater permits authorized by section 402(p).1041

For over 20 years, EPA has implemented Congress’s plan for a “phased” approach to 

regulate municipal runoff based on the size of the population served by an MS4.1042

NPDES permits must be obtained for all stormwater discharges from “large” and 

“medium” MS4s under so-called “Phase 1” rules,1043 and from regulated “small” MS4s 

under Phase 2 rules.1044 EPA estimates there are approximately 750 Phase 1 MS4s, and 

6,700 Phase 2 MS4s, in the United States.1045

Regulations define MS4s as “a conveyance or system of conveyances ... designed or used 

for collecting or conveying storm water.”1046 The component “conveyances” within a 

larger MS4 “system” collect and channel runoff through “roads with drainage systems, 

municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm 

drains.”1047 The MS4 definition closely tracks the separate definition of “point source”1048

– thus confirming that “’[s]torm sewers are established point sources subject to NPDES 

permitting requirements” within section 402’s regime.1049

Generally speaking, governmental bodies at the state and local level own or operate MS4 

systems.1050 EPA guidance explains: 

“What constitutes an MS4 is often misinterpreted and misunderstood. An MS4 is 

not always just a system of underground pipes—it can include roads with 

drainage systems, gutters, and ditches. Although most entities with MS4s are local 

municipal governments (e.g., cities and counties), there are other governmental 

entities that manage storm drains at their facility, including state departments of 

 

1039 EDC, 344 F. 3d at 841.

1040 40 C.F.R. § 122.30(b).

1041 42 U.S.C. § 1342(p)(2). The other categories are discharges associated with “industrial activity” (such as land 

development and construction activities), and certain other discharges that, as EPA determines on a case-by-case 

basis, contribute to a violation of a water quality standard or significantly contribute pollutants to WOTUS. See 

EDC, 344 F.3d at 841-842.

1042 See 33 U.S.C. § 1342(p)(2)-(4), (6) (two-phase approach for stormwater regulation). MS4s can be “large,” 

“medium,” or “small.” Large MS4s serve a population of 250,000 or more (40 C.F.R. § 122.26(b)(4)), while 

medium MS4s serve a population of 100,000 or more but less than 250,000. (Id. § 122.26(b)(7)). Large and medium 

MS4s have been subject to NPDES regulation since 1990 under the so-called “Phase 1” rules, see 55 Fed. Reg. 

47,990 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122-124). Small MS4s (defined id. § 122.26(b)(16) have been 

regulated since 1999 under the “Phase 2” rules, see 64 Fed. Reg. 68,722 (Dec. 8, 1999) (codified at 40 C.F.R. pts. 9, 

122, 123, and 124). The phased approach for the NPDES stormwater permit program, including MS4 discharge 

permits, is discussed at EDC, 344 F. 3d at 841-842.

1043 See, e.g., 40 C.F.R. §§ 122.26(a)(3), (4).

1044 See, e.g., id. § 122.26(a)(5).

1045 See http://cfpub.epa.gov/npdes/stormwater/munic.cfm.

1046 40 C.F.R. § 122.26(b)(8) (emphasis supplied).

1047 Id.

1048 See supra note 15.

1049 EDC, 344 F.3d. at 841 (citing NRDC v. Costle, 568 F.2d 1369, 1379 (D.C. Cir. 1977)).

1050 40 C.F.R. § 122.26(b)(8)(i).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

525

transportation, universities, local sewer districts, hospitals, military installations, 

and prisons.”

1051

All of the municipally owned or operated pipes, curbs, gutters, ditches, drains and other 

conveyances that comprise an MS4 system collect and carry stormwater to an “outfall” –

specifically designated by EPA’s regulations as a “point source” because it is “the point 

where a municipal separate storm sewer discharges to [WOTUS].”1052 A key element of 

MS4 permit applications is the precise mapping and identification of the storm sewer’s 

outfall points1053 as well as the entire “network” of conveyances that ultimately connect 

to the outfall: 

Phase I MS4 permittees should have developed a map of known municipal 

outfalls discharging to waters of the United States as part of their source 

identification conducted for Part I of their NPDES application. Phase II permittees 

are required to develop a map of outfalls and the names of locations of all waters 

of the United States that receive discharges from those outfalls. To be useful, 

these maps should also include the storm drain pipe network and catch basin 

locations, along with other relevant information such as the location of 

stormwater treatment facilities, watershed boundaries for each outfall, critical 

land uses and pollutant sources, and municipal facilities. Outfalls and drainage 

areas should be prioritized in order of their potential to be a source of illicit 

discharges. Ideally, this information would be managed in a database linked to a 

GIS.1054

MS4 maintenance likewise calls for “infrastructure mapping” in a geographic information 

system (GIS) showing all inlets, outfalls, storm drain conduits, and receiving water 

bodies; EPA further advises that these “infrastructure assets or components” should be 

“named or numbered” for ease of identification.1055 (p. 4-8)

Agency Response: This is descriptive and does not need a response. However, to 

the extent that the commenter is suggesting that MS4s not be regulated under this 

rule, see summary response.

10.553 NPDES regulations require MS4 owners and operators to control pollutant discharges 

into receiving waters “to the maximum extent practical.” While the CWA requires

NPDES permits for discharges “from” the MS4 into WOTUS, MS4 owners and operators 

 

1051 U.S. EPA Office of Wastewater Management, “MS4 Program Evaluation Guidance,” EPA-833-R-07-003, at p. 

5 (Jan. 2007) (available at: http://www.epa.gov/npdes/pubs/ms4guide_withappendixa.pdf) (“MS4 Guidance”).

1052 40 C.F.R. § 122.26(b)(9). A “major” MS4 outfall discharges from a single pipe with an inside diameter of 36 

inches or more; or an inside diameter of 12 inches in the case where an MS4 receives stormwater from lands zoned 

for construction and other types of industrial activity. Id. § 122.26(b)(7).

1053 Id. §§ 122.26(d)(iii)(B)(1),(5) (Part 1 of the large or medium MS4 NPDES permit application shall include a 

USGS topographic map that identifies “[t]he location of known [MS4] outfalls discharging to (WOTUS),” and 

“[t]he location of major structural controls for stormwater discharge (retention basins, detention bsins, major 

infiltration devices, etc.”). After storm events, samples of effluent are taken at MS4 outfall points and, as required, 

analyzed to detect pollutants. Id. § 122.26 (d)(2)(iii)(A).

1054 MS4 Guidance, at p. 85 (emphasis supplied).

1055 Id. at p. 47.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

526

also need to control or limit pollutant contributions entering their storm sewer systems 

from third parties. 

First, because “municipal ... waste” carried by stormwater is a “pollutant,”1056 section 

402 permits are necessary at the point that an MS4 outfall discharges runoff into 

WOTUS. Permits for discharges from MS4s “shall require controls to reduce the 

discharge of pollutants to the maximum extent practicable, including management 

practices, control techniques and systems, design, and engineering methods.”1057 To 

obtain NPDES permit coverage, the MS4 operator must certify that all outfalls “that 

should contain stormwater discharges ... have been tested or evaluated for the presence 

of non-stormwater discharges which are not covered by a NPDES permit ....”1058 In 

describing the system monitoring approach for MS4s, EPA states that “monitoring of 

outfalls close to the point of discharge to [WOTUS] is generally preferable when 

attempting to identify priorities for developing pollutant control programs.”1059 NPDES 

regulations further specify effluent sampling procedures at MS4 outfall points after storm 

events,1060 such as the reporting of “quantitative data ... for the grab sample ... of the 

discharge of all pollutants” (such as process wastewater, oil, grease, phosphorous, total 

suspended solids, and nitrogen).1061

Second, any industrial operation (like many construction sites)1062 that discharges 

stormwater “through” a large or medium MS4 must provide the MS4 operator with key 

information regarding that penultimate discharge into the municipal system before it may 

reach receiving waters – such as any existing NPDES permit allowing that “industrial” 

site to legally discharge pollutants off site in the first place.1063 Otherwise, any other 

release of a pollutant into an MS4 that is not itself permitted or otherwise exempt from 

permitting is “illicit.”1064 The MS4 permit application must set forth “[a]dequate legal 

authority” for the municipality to prohibit illicit discharges “through ordinance, order, or 

similar means.”1065 Applicants for MS4 permit coverage must also describe a program 

“including a schedule, to detect and remove (or require the discharger to the [MS4] to 

obtain separate NPDES permit coverage for) illicit discharges and improper disposal into 

the storm sewer.”1066 (p. 8-9)

 

1056 33 U.S.C. § 1362(6); 40 C.F.R. § 122.2. See supra note 14.

1057 33 U.S.C. § 1342(p)(3)(B)(iii).

1058 40 C.F.R. § 122.26(c)(i)(C).

1059 Phase 1 Rules, 55 Fed. Reg. at 48,057 (Nov. 16, 1990).

1060 See 40 C.F.R. subpt. B.

1061 40 C.F.R. § 122.21 (g)(7)(ii); § 122.26 (c)(1)(i)(E).

1062 According to EPA’s Phase 1 stormwater rules an “industrial activity” includes construction activity (such as land 

clearing, grading and excavation) on sites larger than five acres, but may also include land clearing activities on 

smaller lots in a common plan or development (like a subdivision) that is five acres or more. 40 C.F.R. § 

122.26(b)(14)(x). Under the Phase 2 rules, “small construction activity” on sites between one and five acres must 

also obtain NPDES permit coverage for stormwater discharges. Id. § 122.26(b)(15).

1063 Id. § 122.26(a)(4).

1064 Id. § 122.26(b)(2).

1065 Id. § 122.26(d)(2)(i)(B).

1066 Id. § 122.26(d)(2)(iv)(B).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

527

Agency Response: This is descriptive and does not need a response. However, to 

the extent that the commenter is suggesting that MS4s not be regulated under this 

rule, see summary response.

10.554 Just as treatment works are publicly owned and operated systems that store, treat and 

recycle sanitary and industrial waste (i.e., sewage)1067– and are “point sources” subject to 

NPDES permit requirements1068– MS4s are systems that separately treat, store and 

recycle municipal and industrial pollutants that are present in stormwater flows. 

Stormwater discharged from MS4s often carries “pollutants” as the CWA defines that 

term.

1069 Regulations specify that MS4s are owned or operated by state or local 

governments (or other bodies) created under State law, that specifically have “jurisdiction 

over disposal of sewage, industrial wastes, storm water, or other wastes ....”1070 Thus, 

only government entities that have responsibilities for waste management are eligible to 

obtain MS4 NPDES permits.1071

To meet the CWA’s directive that municipal stormwater permits must control pollutants 

“to the maximum extent practicable,”1072 MS4 operators must include a “proposed 

management plan” in their NPDES application that, among other things, incorporates 

“management practices, control techniques, and system design and engineering methods” 

to reduce pollutant discharges.1073 MS4s treat wastes in stormwater with such features as 

settling structures to collect sediment, and racks to capture trash.1074 EPA’s online 

“National Menu of Stormwater Management Best Practices” sets forth an exhaustive 

suite of controls1075 to help prevent and treat municipal waste such as trash, debris, 

sediment, animal waste, oil and grease, and pesticides before such pollutants are 

conveyed by stormwater discharges from an MS4 outfall into WOTUS (or at the front 

end, from third parties releasing pollutants into the MS4). 

 

1067 33 U.S.C. § 1292(2)(A).

1068 See, e.g., http://www.epa.gov/region1/npdes/potw-gp.html.

1069 33 U.S.C. § 1362(6). See supra note 14.

1070 40 C.F.R. § 122.26(b)(8)(i) (emphasis supplied)

1071 That stormwater conveys “waste” is also made plain by EPA’s regulations addressing non-municipal runoff 

associated with industrial activities. Aside from the general definition of “discharge of a pollutant,” EPA has a 

specific definition for “storm water discharge associated with industrial activity” – that is, the discharge “from any 

conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing 

processing or raw materials storage areas at an industrial plant.” Id. § 122.26(b)(14). Among the categories of 

industrial discharges identified in this definition are runoff from roads and rail lines “used or traveled by carriers of 

... waste materials,” “refuse sites,” “sites used for the application or disposal of process waste waters,” and 

“material handling activities that include ... conveyance of any ... by-product or waste product.” Id.

1072 33 U.S.C. § 1342(p)(3)(B)(iii).

1073 40 C.F.R. 122.26(d)(2)(iv). For example, “structural controls to reduce pollutants (including floatables) in 

discharges from [MS4s]” must be included in the plan accompanying the NPDES application. Id. § 

122.26(d)(2)(iv)(A)(1).

1074 Ben Urbonas, et al., Stormwater, Best Management Practices and Detention for Water Quality, Drainage, and 

CSO Management 42, 416-433 (1993).

1075 E.g., infiltration trenches, infiltration basins, drain system cleaning, silt fences, wet and dry detention ponds, 

geotextiles, polymer treatment of suspended solids, etc. See http://cfpub.epa.gov/npdes/ 

stormwater/menuofbmps/index.cfm.
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Municipalities around the country typically install stormwater infrastructure for the sole 

purpose of cleaning runoff and treating the wastes it conveys before entering receiving 

waters. For example, Madison, Wisconsin has installed numerous treatment structures 

that remove large particles and trash from the stormwater as it moves through the 

municipality's storm sewer.1076 Similarly, the Brookfield Pond Restoration Project in 

Fairfax, Virginia improves a pond that was not created with modern stormwater 

management techniques. The project includes infrastructure located where stormwater 

enters the pond to filter pollutants and sediment, and floating wetlands designed to 

remove nutrients.1077 These are just two examples of the thousands of treatment projects 

nationwide that municipalities operate to manage and control the wastes carried by 

stormwater that runs through MS4 systems. (p. 9-11)

Agency Response: This is descriptive and does not need a response. However, to 

the extent that the commenter is suggesting that MS4s not be regulated under this 

rule, see summary response

10.7. TRIBUTARIES

Agency Summary Response

The agencies determine based on their scientific and technical expertise that waters meeting the 

definition of “tributary” in a single point of entry watershed are similarly situated and have a 

significant nexus because they significantly affect the chemical, physical, or biological integrity 

of traditional navigable waters, interstate waters, and the territorial seas. As such, it is 

appropriate to conclude covered tributaries as a category are “waters of the United States.” See 

Technical Support Document. The agencies limited the tributaries that are “waters of the United 

States” to those that have both a bed and banks and another indicator of ordinary high water 

mark. That limitation served as a reasonable basis to consider covered tributaries similarly 

situated because those physical characteristics indicated sufficient flow that the covered 

tributaries are performing similar functions and located such that they are working together in the 

region to provide those functions to the nearest traditional navigable water, interstate water, or 

the territorial seas. Preamble, III and IV; Technical Support Document, II and VII.

Specific Comments

Barona Band of Mission Tribes (Doc. #2476)

10.555 The proposed definition of "tributary" exceeds the power of Congress under the 

Commerce Clause- it proves too much. Proposed rule Section 328(c)(5) defines 

"tributary" expansively to include,

“a water physically characterized by the presence of a bed and banks and ordinary 

high water mark, as defined at 33 C.F.R. 328.3(e) which contributes flow, either 

directly or through another water, to a water identified in paragraphs (a)(l) 

 

1076 http://www.cityofmadison.com/engineering/stormwater/TreatmentStructures.cfm

1077 http://www.fairfaxcounty.gov/dpwes/stormwater/projects/brookfield_pond.htm
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529

through (4) of this section .... A water that qualifies as a tributary· under this 

section does not lose its status as a tributary if, for any length there are ... one or 

more natural breaks ... so long as a bed and banks and an ordinary high water 

mark can be identified upstream of the break.”

Taken literally, this standard would define most of the land area of the United States as 

"waters of the United States." Much rain that falls is not absorbed into the ground and, 

instead, runs off and is collected through ever-increasing courses, from trickles, to 

runnels, to rivulets, to gullies, to rills, to brooklets, to streamlets, to brooks, to creeks, to 

streams, and to rivers that empty into the ocean. During and after rains, such flows, even 

if only occasional, all drain into the ocean and other indisputably jurisdictional waters, 

from the smallest drainage feature to the largest, through a network of tributaries of 

tributaries of tributaries, etc. Each of these drainage features, from the smallest to the 

largest, from the most occasional and ephemeral to the most massive and continuous, 

contributes to the flow of water into some navigable water. Presumably, a drop of rain 

falling on the west edge of the continental divide in Colorado that is not absorbed or 

diverted will eventually find its way into the Colorado River and thence into the Pacific 

Ocean. Presumably, that drop could also carry a molecule of a pollutant from the 

continental divide into the Pacific Ocean. As one district court observed long ago, 

"Congress has jurisdiction under its authority to regulate commerce with the 

foreign nations and among the several States." Does that apply to immediate 

tributaries, and if it applies to immediate tributaries, does it apply to tributaries to 

tributaries, and if so, where is the end? Grand River Dam Authority v. Going, 29 

F.Supp. 316,323 (N.D.Okla., 1939) 

That single drop of water, along with others like it, will have a cumulative effect on the 

physical, biological, and chemical integrity of the indisputably jurisdictional waters into 

which they eventually flow. The EPA is correct in this conclusion. See 79 F.R. at p. 

22206. But the mere fact that such a cumulative effect may exist does not, in itself, justify 

the regulation of that drop of water from the very first point, near the continental divide, 

where it first enters the most evanescent, ephemeral, and tiny drainage with a bed, banks, 

and OHWM, especially if that confluence of characteristics immediately ceases and does 

not reappear for many miles. If this conclusion did follow, then virtually the entire land 

mass of the United States would become "waters of the United States". At some point, 

virtually every drop of rain that is not absorbed or diverted will enter something that 

qualifies as a "tributary". From that point onward, even if there is a no further confluence 

of bed, banks, and OHWM for any indefinite distance, the land over which that drop 

passes on its way to the sea will be "waters of the United States", thereby expanding the 

jurisdiction of the EPA and ACE under the Clean Water Act from not just "waters of the 

United States" to "lands of the United States". (p. 2-3)

Agency Response: The agencies disagree that "virtually the entire land mass" 

would become waters of the United States under the agencies' definition of 

"tributary." Further, the definition provides clear boundaries and the agencies' 

determination that tributaries, as defined, have a significant nexus is based on the 

information and conclusions in the Science Report, other relevant scientific 

literature, the Technical Support Document, the relevant Supreme Court decisions, 
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530

the agencies’ technical expertise and experience, and the objectives and 

requirements of the CWA. Preamble, III; Technical Support Document, II and VII.

Attorney General of Texas (Doc. #5143.2)

10.556 The federal agencies’ new proposed rule proposes, for the first time, a sweeping 

definition of the term “tributary”...This definition is problematic for landowners for a 

number of reasons. From a practical standpoint, determining the “ordinary high water 

mark” of a bed and bank is a notoriously difficult task—one that both the Rapanos

plurality and Justice Kennedy admonished. The Rapanos plurality stated that the ordinary 

high water mark standard “extended the waters of the United States to virtually any land 

feature over which rainwater or drainage passes and leaves a visible mark—even if only 

the presence of litter and debris”. Rapanos, 547 U.S. at 725 (internal quotations omitted). 

Justice Kennedy disparaged the ordinary high water mark as providing “no such 

assurance” of a reliable standard for determining a significant nexus. Id. at 780-8 1 

(Kennedy. J., concurring in the judgment). 

The irony here is that while on one hand embracing Justice Kennedy’s vague “significant 

nexus” test for expanding its own jurisdiction over land and waters, the federal agencies 

conveniently omit that Justice Kennedy eschewed the “ordinary high water mark” as an 

appropriate standard for determining that tributaries are “waters of the United States,” 

noting that “the breadth of this standard.. . leave[s] wide room for regulation of drains, 

ditches, and streams remote from any navigable-in-fact water and carrying only minor 

water volumes toward it.” Rapanos, 547 U.S. at 781 (Kennedy, J., concurring in the 

judgment). (p. 3-4)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Offices of the Attorney Generals of Oklahoma, West Virginia and Nebraska (Doc. #7988)

10.557 The Proposed Rule declares that all “tributaries” of both core waters and impoundments 

of core waters (dams or reservoirs) are always and per se covered by the CWA. 40 C.F.R. 

§ 230.3(s)(5). The Proposed definition of “tributaries” is extremely broad, sweeping up 

ponds, ephemeral streams, and usually dry channels. 40 C.F.R. § 230.3(u)(5). (p. 5)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The rule does not define tributary to 

include ponds.

10.558 The Proposed Rule declares that all “tributaries” of core waters and impoundments of 

core waters are always and per se “waters of the United States.” 40 C.F.R. § 230.3(s)(5), 

see also 79 Fed. Reg. 22,199 (April 21, 2014). The Proposed Rule then defines a 

“tributary” as anything with “presence of a bed and banks and ordinary high water 

mark...which contributes flow” into a core water, even if such a flow is “ephemeral.” 40 

C.F.R. § 230.3(u)(5), 79 Fed. Reg. 22,201-02. 

This definition of “tributary” fails the test set out by the four-Justice Rapanos plurality. 

While the plurality emphasized the requirement that the non-core water must have a 

“continuous surface connection” with a core water, the Proposed Rule’s definition of 

“tributary” requires only any flow into a core water—or even an impoundment of a core 

water—making the proposed definition clearly overbroad. Indeed, the plurality 
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531

specifically rejected CWA jurisdiction for “streams whose flow is [c]oming and going at 

intervals . . . [b]roken, fitful, or existing only, or no longer than, a day, diurnal . . . shortlived,” which contradicts the Proposed Rule’s assertion that “tributaries” are per se 

“waters of the United States.” Rapanos, 547 U.S. at 733 n.5. 

The “tributary” definition just as clearly fails Justice Kennedy’s “significant nexus” test. 

Under the Proposed Rule, even roadside ditches or depressions that ever send any flow 

into core waters are “waters of the United States.” This falls far short of a “significant 

nexus” as, under the Proposed Rule, the flow need not have any impact on “the chemical, 

physical, and biological integrity of other covered waters understood as navigable in the 

traditional sense.” Id. at 780. Indeed, Justice Kennedy rejected CWA jurisdiction for any 

“wetlands [that] lie alongside a ditch or drain, however remote and insubstantial, that 

eventually may flow into traditional navigable waters” and specifically rejected an 

interpretation that would grant CWA jurisdiction over even a “continuously flowing 

stream (however small).” Id. at 776-79. This reasoning is directly at odds with the 

Proposed Rule’s “tributary” definition, which includes even “ephemeral” flows.

In addition, the Proposed Rule’s attempt to sweep in any tributary of an impoundment of 

a core water would be unlawful under Justice Kennedy’s test. The inclusion of any 

tributary to any impoundment—that is, a dam or reservoir of a core water—is effectively 

a “double nexus” approach. Under Justice Kennedy’s test, only one nexus is allowed: a 

non-core water can be covered under the Act if that non-core water has a significant 

nexus to a core water. But here, the Proposed Rule asserts federal jurisdiction over a 

chain of waters, with only the final one being a core water. Under the Proposed Rule, so 

long as a non-core water (like an dam or reservoir) has a “significant nexus” to a core 

water, any water that has a “significant nexus” to that dam or reservoir is also included in 

“Waters of the United States.” This is directly contrary to Justice Kennedy’s approach of 

requiring each non-core water covered under the Act to have a “significant nexus” 

connection to an actual core water. Id. at 779. (p. 7-8)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. Many ditches, as well as depressions, are

excluded from "waters of the United States." Preamble, IV.

Citizen’s Advisory Commission on Federal Areas, Alaska Department of Natural Resources 

(Doc. #16596)

10.559 It bears mentioning that the Rapanos Court was only considering the definition of 

WOTUS found in the current regulations. The discussion is thereby limited to the terms 

outlined there - e.g., captioning undefined terms like "tributaries" and "adjacent 

wetlands." Nothing in the opinion, or other precedent, supports or lends credibility to the 

proposed rule's new and expanded definitions of "tributaries" and "adjacent wetlands." 

These new definitions appear to capitalize on the Court's limited discussion of these 

terms to see where expansion is possible consistent with those discussions, while 

ignoring the context under which they were developed. (p. 2)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.
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532

San Bernadino Department of Public Works (Doc. #16489)

10.560 In 2006, the Supreme Court issued its opinion in "Rapanos" evaluating the extent and 

limits of §404 jurisdiction within tributary systems. Though the facts in Rapanos focus on 

tributaries to navigable-in-fact waters,"1078 the USACE existing definition of "tributaries" 

is much broader. The USACE currently defines tributaries as rivers and streams which 

are tributary to either: (1) navigable-in-fact waters, (2) interstate waters/wetlands, (3) 

"other waters" (including playa lakes), and (4) "impoundments of waters that might 

otherwise be defined as waters of the United States under the definition".1079 Prior to 

Rapanos, the CWA jurisdiction conceivably extended to any tributary feature with an 

OHWM.1080 By including all tributaries, including first order ephemeral streams,1081 

CWA jurisdiction could conceivably extend to any definable flood control or water 

conveyance facility within a watershed, without respect to rate/persistence of flow, 

volume, or to its relative proximity/remoteness and affect upon downstream resources. 

Similarly, based on the existing regulations, CWA jurisdiction would also extend to 

playa-lakes and other non-navigable features within isolated watersheds provided an 

independent nexus to interstate or foreign commerce is evident. In finding for the 

petitioners, the Court found, as they had in SWANCC, that the USACE' expansive 

interpretation of the term "waters of the United States" is not "based on a permissible 

construction of the statute."1082

The holding in Rapanos however, generated a certain amount of confusion, which has 

frustrated administrative efforts to apply concise rules from the Court's rationale. One of 

the primary sources of confusion is because Rapanos was not decided by a clear majority, 

but rather as a combination of a plurality and concurring opinions. Three justices joined 

 

1078 Rapanos, et al., (2006), joined two cases, Rapanos and Carabell. Rapanos involved three properties 

encompassing 54 acres of "sometimes-saturated soil", connected indirectly to navigable waters ranging from 11 to 

20 miles downstream. Rapanos, 547 U.S. 719, 729 (2006), citing Rapanos, 376 F.3d 629, 643 (2004). In Carabell, 

petitioners sought authorization to fill wetlands separated by a four-foot wide impermeable berm from a drainage 

ditch with indirect connectivity to navigable waters located approximately one-mile downstream. Rapanos, 547 U.S. 

719, 729 (2006), citing Carabell, 391 F. 3d 704, 708 (2004).

1079 See 33 CFR 328.3(a)(5). Note that "impoundments" typically refer to resources associated with dams.33 CFR 

328.3(a)4).

1080 The term "ordinary high water mark" (OHWM) means that line on the shore established by the fluctuations of 

water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes 

in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate 

means that consider the characteristics of the surrounding areas. 33 CFR 328.3(e). With respect to non-tidal water, 

jurisdiction extends to the OHWM. 33 CFR §328.4(c)(1); or when adjacent wetlands are present, beyond the 

OHWM to the limit of the adjacent wetland. 33 CFR §328.4(c)(2).

1081 "Stream-order" refers to "Strahler stream-order" developed by Arthur Newell Strahler (1957). Stream order is 

used to define stream size based on a hierarchy of tributaries. First order ephemeral streams are generally the 

smallest drainage features with a definable OHWM. These features are typically located at the top (highest 

elevation) within a watershed, conveying flow only during, and immediately after storm events.

1082 Rapanos, 547 U.S. 739 (2006), citing, Chevron U.S.S. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837, 843 (1984).
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533

Justice Scalia's plurality opinion for the court:1083 But in his concurring opinion, Justice 

Kennedy proceeds to put forth a rule which is not wholly congruous with the plurality.1084

Notwithstanding their differences, both the plurality and concurrence are fundamentally 

consistent with SWANCC, in that they emphasize that the term "navigable" must be given 

at least some effect.1085 But whereas the ruling in SWANCC simply removed the MBR 

as a tool for asserting jurisdiction over isolated waters, both the plurality and the 

concurrence rules in Rapanos are predicated in part on a rationale requiring either the 

presence of relatively permanent water1086, or surface connectivity or adjacency to 

navigable waters.1087 It might be argued that the connectivity/adjacency (to navigable 

waters) requirement is distinguishable based on the fact patterns in Rapanos and Carabell

(both of which involve tributaries to navigable waters), but the Court fails to carve out 

such limitations in their opinion. As such, Rapanos seems to apply to all tributary types 

set forth in 33 CFR 328.3(a)(4), including tributaries of "intra-state" and "other waters". 

54 In many ways this does not make sense because "other waters" by definition includes 

non-navigable resources such as shallow, ephemeral dry lakes (playa-lakes) with no 

connectivity to traditional navigable waters. Such a distinction is important, because 

neither the plurality nor the concurrence rationale make sense when applied to watersheds 

that lack navigable-in-fact waters. 

The proposed regulations establish that all tributaries that flow to resources crossing state 

lines be considered jurisdictional by rule. While such a rule may be logically applied to 

interstate navigable resources it is problematic when applied to tributaries of dry lakes 

and other such resources crossing state lines with no surface connectivity to navigable 

waters (or territorial seas).This disconnect between Rapanos and the existing regulatory 

framework is highlighted in both the plurality and concurring opinions. 

The plurality attempts to set forth a simple de facto rule for delineating federal 

jurisdiction. This de facto or bright-line rule is based on the physical presence of water in 

a continuous temporal sense. The plurality applies a plain-language dictionary meaning to 

the term "waters" and (tributary) "streams", asserting that "the waters of the United 

States" include only relatively permanent, standing or flowing bodies of water."1088 But 

the plurality is reluctant to set down specific temporal limits that define "relatively 

permanent". This reluctance is based on the plurality's recognition that the nation is 

subject to significant regional diversity in climate and hydro-geomorphology.1089 This is 

an important distinction both legally and practically, particularly in the arid west states 

where the presence of continuously flowing or standing water results mostly from 

seasonal storms. Notwithstanding these regional variations, the plurality asserts that 

 

1083 Plurality opinion issued by Justice Scalia, and joined by Chief Justice Roberts, Justice Thomas, and Justice 

Alito. 547 U.S. 715, (2006).

1084 Concurring opinion of Justice Kennedy. 547 U.S. 759, (2006).

1085 See Rapanos, 547 U.S. 715, 779 (2006). See SWANCC, 531 U.S. at 172 (2001).

1086 See Rapanos, 547 U.S. at 732 (2006).

1087 See Rapanos, 547 U.S. 715, at 742,779 (2006).

1088 33 CFR 328.3(a)(4).

1089 See Rapanos, 547 U.S. at 732 (2006).
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534

ephemeral streams "existing only, or no longer than a day; diurnal . .. short-lived" are not 

relatively permanent and therefore not jurisdictional.1090 

When applying the plurality rule to the "arid Southwest", many ephemeral 

streams/washes, and playa-lakes, within the Southwest would be de facto nonjurisdictional because they only support flow or standing water during or for a short 

duration after seasonal storm events. However, if these resources meet the standard of 

"relative permanence", the plurality does not offer a foundation for satisfying interstate 

commerce requirements when navigable-in-fact resources are not present in the 

watershed. 

Justice Kennedy's concurred with the holding of the plurality but did not join the opinion 

because he disagreed conceptually with the temporal concept underlying "relatively 

permanent waters" asserting that it "makes little practical sense in a statute concerned 

with downstream water quality".1091 To exemplify this point, the concurrence points out 

that the "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".1092 This is to say that a small continuous stream with low volume may have 

no significant impact on downstream jurisdictional resources, but during a major storm a 

typically dry-stream gully may carry large volumes of water, resulting in very significant 

impacts to downstream navigation.

At the heart of Justice Kennedy's opinion is "water quality", which builds on the stated 

"objective" of the 1972 amendments, to "restore and maintain the chemical, physical, and 

biological integrity of the Nation's waters".1093 "Water quality" is also the basis for the 

"significant nexus" concept, and justification for the "limited effect" doctrine, used to 

expand jurisdiction beyond the banks of navigable waters in Riverside Bayview 

Homes.

1094

 Yet unlike Riverside Bayview Homes, which asserts that the term "navigable" 

was of "limited effect", in Rapanos, both the plurality and concurring opinion seek to 

establish boundaries to the "limited effect" doctrine. As such, both Rapanos opinions 

suggest that CWA jurisdiction may not extend to the far reaches of a watershed, even in

watersheds that connect to TNWs, interstate waters or the territorial seas. 

But in formulating a jurisdictional test based on "water quality" and a "significant nexus" 

to downstream navigable waters, Justice Kennedy creates a result that is potentially in

conflict with the plurality's "relatively permanent rule".1095 These complications are 

particularly evident when evaluating ephemeral or intermittent waters that do not meet 

the "relatively permanent" standard. These features are de facto non-jurisdictional to the 

 

1090 See footnote 5, Rapanos, 547 U.S. at 733 (2006).

1091 See Rapanos, 547 U.S. at 769 (2006).

1092 Id.

1093 See Rapanos, 547 U.S. at 759 (2006), citing 33 U.S.C. §1251(a).

1094 See Riverside Bayview Homes, 474 U.S. at 134-135 (1985). In justifying expansion of CWA jurisdiction beyond 

the OHWM to adjacent wetlands, the court in Riverside Bayview, asserts that the term "navigable" should be given 

"limited effect".

1095 See Rapanos, 547 U.S. at 780, 782 (2006).
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535

plurality, but may be jurisdictional if a significant chemical, physical or biological nexus 

to downstream navigable waters is established.1096

Because Rapanos was a plurality decision, the USACE and EPA continue to struggle 

with formulating concise jurisdictional rules.1097 Also, neither the plurality nor the 

concurrence provided any real metrics for determining either "relatively permanent 

waters" or "significant nexus". This has proved to be a particularly vexing problem given 

the issues of regional hydro-geomorphic diversity discussed in the case. The Agencies' 

answer was to generally combine the rules into a fairly complicated jurisdictional 

flowchart-analysis1098, and then to generate a set of detailed supplementary guidance 

documents addressing jurisdictional issues relating to "OHWM" and "wetland" 

determination for every major hydro-climatic region in the United States.1099 The task set 

before the USACE was daunting, and resulted in significant delays in the issue of §404 

permits, and virtually no jurisdictional determinations during the year following 

publication of the Rapanos opinion.1100 

With the proposed Rule, the Agencies move substantially closer to making a "bright-line 

rule" which will allow for greater predictability, certainty, and consistency in 

administrative jurisdictional determinations. However, the Agencies make this rule at the 

expense of the existing scientific data set forth in the USACE's regional guidelines, and 

also in conflict with opinions set forth in Rapanos that purport to limit the extent of CWA 

jurisdiction within tributaries. 

From a case law perspective, the primary concern is the proposed Rule's nearly complete 

reliance on Justice Kennedy's "significant nexus" rule, while substantially ignoring the 

plurality's "relatively permanent waters" rule, which was joined by four of the Supreme 

 

1096 Id. Note that Justice Kennedy's rule is commonly called the "significant nexus test" or "significant nexus

determination". Also note that a significant nexus test/determination must be established on a "case by case basis". 

See Rapanos, 547 U.S. at 782 (2006).

1097 The frustration was evident in Chief Justice Roberts concurring opinion. See Rapanos, 547 U.S. at 758 (2006). 

A plurality occurs when one opinion did not receive the support of more than half the justices, but received more 

support than any other opinion, leading to confusion as to what rule(s) apply from the case. The generally accepted 

test for plurality decision was laid out in, Marks v. United States, which establishes that "when a fragmented Court 

decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court 

may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." 

Marks v. United States, 430 U.S. 188, 193-94 (1977); Marks, may require analyzing the points of agreement 

between plurality, concurring, and dissenting opinions to identify the legal "test...that lower courts should apply". 

Waters v. Churchill, 511 U.S . 661, 685 (1994). 

1098 See, U.S. Army Corp of Engineers Jurisdictional Determination Form Instructional Guidebook, USACE/EPA, 

(May 30, 2007) at pages 8-13.

1099 Note that the firsts such regional guidance were generated for the Arid West Region in 2008. A Field Guide to 

the Identification of the Ordinary High Water Mark (OHWM) in the Arid West Region of the Western United 

States, USACE, (August 2008); Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid 

West Region (Version 2.0), USACE, (September 2008; Note that interim Guidance was published at an earlier 

date.). To this day, the Corps continues to develop regional guidance for other climatic regions in the U.S.

1100 Note that during this time period, the Corps continued to process jurisdictional determinations associated with 

§404 permit applications. Those applications submitted prior to publication of Rapanos (June 19, 2006), were given 

the option of using pre-Rapanos jurisdictional evaluation criteria for processing permits. This option was considered 

to be generally protective of the environment because federal jurisdiction prior to Rapanos was generally regarded 

as broader in reach and scope.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

536

Court justices. It should also be noted that Justice Scalia, in authoring the plurality 

opinion in Rapanos, ardently disagrees with Justice Kennedy's use of the phrase "either 

alone or in combination with similarly situated lands" to justify a significant nexus to 

downstream TNW's, asserting that this language seeks justification by "ignoring the text 

of the statute".1101 And yet this "aggregate" (similarly situated) concept is one of the core 

legal (and scientific) justifications used by the proposed Rule to establish a "significant 

nexus" in all tributaries.1102 In essence the proposed Rule, reaffirms the boundless scope 

of the "limited effect" doctrine from Riverside-Bayview, but fails to grasp that the 

purpose of Rapanos, including both the plurality and concurring opinions, was that not all 

tributaries (and adjacent wetlands) are subject to CWA jurisdiction. As such, the DPW 

seriously questions whether the proposed Rule can be justified as permissible statutory 

construction in light of Rapanos. (p. 12-17)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C, IV. 

Snowmass Water and Sanitation District (Doc. #16529)

10.561 The assertion of jurisdiction over relatively remote intermittent and ephemeral drainages 

is not supported by Justice Scalia's plurality opinion that announced the decision of the 

U.S Supreme Court in Rapanos v. United States.

1103 As described in that opinion, CWA 

jurisdiction would extend only to "those relatively permanent, standing or continuously 

flowing bodies of water 'forming geographic features' that are described in ordinary 

parlance as 'streams[,]...oceans, rivers, [and] lakes."1104 The Rapanos plurality stated that 

CWA jurisdiction does "not include channels through which water flows only 

intermittently or ephemerally, or channels that periodically provide drainage for 

rainfall."1105 Even Justice Kennedy's concurring opinion in Rapanos, upon which this 

rulemaking effort relies most heavily, does not support a broad regulation of tributaries in 

the absence of more specific criteria.1106(p. 4)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

 

1101 Rapanos, 547 U.S. at 755-756 (2006).

1102 Federal Register, at 22204(3).

1103 Rapanos v. United States, 547 U.S. 715 (2006). 

1104 Id. at 739.

1105 Id.

1106 Justice Kennedy's opinion in Rapanos concurred in the judgment but not in the plurality opinion's rationale 

regarding Congress's limits on the reach of CWA jurisdiction. Justice Kennedy's concurring opinion noted that the 

agencies' existing standard for tributaries (which relies on the presence of a connection to a traditional navigable 

water and certain physical characteristics indicating an ordinary high water mark) was too expansive to provide the 

basis for a jurisdictional determination regarding adjacent wetlands because it seemed to "leave wide room for 

regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor watervolumes toward it." Rapanos, 547 U.S. at 781. He suggested that the agencies could "identify categories of 

tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable waters, or 

other relevant considerations, are significant enough that wetlands adjacent to them are likely, in the majority of 

cases, to perform important functions for an aquatic system incorporating navigable waters." ld.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

537

City of Jackson Department of Public Works (Doc. #18937)

10.562 The proposed rule contradicts the Supreme Court's guidance in Rapanos and otherwise 

exceeds the Agency's CWA authority. The proposed rule explicitly refers to Justice 

Kennedy's concurrence in Rapanos v. United States as the basis for the new definition, 

but the definition drastically expands the reach of the CWA. In Rapanos, 547 U.S. 715 

(2006), the court split 4-1-4. Four justices upheld the United States' interpretation of what 

wetlands should be considered jurisdictional, and four others ruled that only "relatively 

permanent waters" are jurisdictional. Rapanos v. United States, 547 U.S. 715, 757, 787 

(2006). Justice Kennedy rejected both tests and instead held that waters are jurisdictional 

if they have a "significant nexus" to navigable waters. Id. at 759. His opinion is the 

prevailing view of the Supreme Court on what wetlands are jurisdictional under the Act 

and purportedly serves as the basis for the proposed rule. 79 Fed. Reg. at 22192. 

However, the proposed rule actually looks similar to the position that the federal 

government argued, and lost, in Rapanos. In Rapanos, the federal government argued that 

"the connection between traditional navigable waters and their tributaries is significant in 

practical terms, because pollution of the tributary has the potential to degrade the quality 

of the traditional navigable waters downstream." Brief of the United States in Rapanos, at 

15. The federal government explicitly rejected the notion "that some tributaries may have 

such an attenuated connection to traditional navigable waters that federal protection of 

those tributaries would be unwarranted." Id.

The Supreme Court, and Justice Kennedy, disagreed with the federal government's 

position. Justice Kennedy rejected many of the government's assertions, holding that a 

wetland cannot be determined to have a significant nexus simply because it is adjacent to 

an ordinary highwater- mark tributary: 

“[T]he Corps deems a water a tributary if it feeds into a traditional navigable 

water (or a tributary thereof) and possesses an ordinary high-water mark ... 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 water 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. 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." Rapanos, 547 

U.S. at 805-806.”

Despite Justice Kennedy's admonition, the Agencies propose to define tributaries as 

"water physically characterized by the presence of a bed and banks and ordinary high 

water mark." They wrongly have adopted the view that all adjacent waters are per se 

jurisdictional because of a "significant nexus" finding. While Justice Kennedy's opinion 

recognized that the federal government could opt to protect tributaries that "are likely, in 

the majority of cases" to have a significant nexus to traditionally navigable water, that

opinion also rejected the notion that the CWA protects every discernible water that 

contributes flow directly, or indirectly, to a traditionally navigable water, no matter how 

remote or insubstantial. Id. at 781. Given the similarity between the Agencies' proposed 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

538

language and the arguments made by the federal government and rejected by the 

Supreme Court in Rapanos, the Agencies should avoid such an expansive jurisdictional 

overreach. (p. 5)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Maui County (Doc. #19543)

10.563 The County of Maui submits that a per se inclusion of tributaries that are not relatively 

permanent, and wetlands adjacent to tributaries, exceeds the jurisdiction as described by 

Justice Kennedy in Rapanos. (p. 2)

Agency Response: The agencies disagree. The rule is consistent with the statute 

and the caselaw. Technical Support Document, I.A. and C.

North Dakota Water Resource Districts Association (Doc. #5596)

10.564 The proposed definition claims to offer a streamlined review of jurisdictional waters by 

adopting a jurisdictional-by-rule approach to certain waters. However, the expansion of 

the definition of tributaries, adjacent waters and "other waters" is troublesome and, in 

many cases, will still require case-by-case analysis to determine a "significant nexus" as 

proscribed by the Supreme Court. 

A concern with the jurisdictional by-rule approach to tributaries is that it leaves behind 

Justice Kennedy's narrow "significant nexus" test from Rapanos and adopts merely a 

"nexus'' test, regardless of volume of flow, proximity to navigable waters or other 

relevant factors to the significance of a tributary to a Water. Justice Kennedy had the 

opportunity before him in Rapanos to adopt merely a "nexus" or "connection" test, but 

opted not to. Under the proposed rule, tributaries need not flow directly to a jurisdictional 

water but only need to "contribute flow" directly to a Water or to "waters which 

eventually flow" to a Water. We are particularly concerned that the agencies propose to 

extend jurisdiction to tributaries with ephemeral or intermittent flow. 

Also of concern is the application of "tributary" status to wetlands outside the channel of 

a tributary, but are contributing flow to the channel. While using Ordinary High Water 

Mark (OHWM) as a determining factor in establishing jurisdictional tributaries, the 

agencies acknowledge that at there are places along a tributary where the OHWM may 

disappear, such as in a wetland. Under the proposed rule, the agencies would still extend 

Federal jurisdiction to these areas, if not as tributaries, then as "adjacent waters." 

Therefore, when there is a question as to the applicability of the CWA to a wetland, the 

rule favors Federal jurisdiction. The agencies request specific comment on how to best 

provide certainty on wetlands where no OHWM is evident and the Association feels 

declining jurisdiction over such wetlands would provide best certainty to the regulated 

community. (p. 1-2)

Agency Response: For the reasons articulated in the Preamble, the Science 

Report, and the Technical Support Document, the agencies disagree that the rule is 

based on a mere "nexus" test. The rule is consistent with the statute and the 

caselaw. Technical Support Document, I.A. and C. The rule does not define 

tributary to include wetlands. Preamble, IV.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

539

California Building Industry Association (Doc. #14523)

10.565 This broadly inclusive defining of features that may constitute a tributary, and the lack of 

any parameters of the requisite level or consistency of flow necessary to support exertion 

of jurisdiction sounds strikingly reminiscent of the “any hydrologic connection” basis for 

jurisdiction flatly rejected by five Justices in Rapanos. Justice Kennedy criticized the 

agencies’ “existing standard” that “deems a water a tributary if it feeds into a traditional 

navigable water (or tributary thereof) and possesses an ordinary high water mark” 

because it “leave[s] wide room for regulation of drains, ditches, and streams remote from 

any navigable-in-fact water and carrying only minor volumes towards it.” See Rapanos at 

786 (Kennedy, J., concurring). And Justice Kennedy further challenged the Rapanos

dissent position that, in his words, “would permit federal regulation whenever wetlands 

lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow 

into traditional navigable waters.” He continued, “The deference owed to the Corps’ 

interpretation does not extend so far.” Rapanos at 778-79 (Kennedy, J., concurring). In 

fact, the Proposed Rule’s new categorical inclusion of features as “tributaries” and 

“adjacent waters,” as respectively defined, would most certainly rope in without any onsite or case-specific analysis the types of features embraced by the Rapanos dissent but 

expressly rejected by both Justice Kennedy and the Scalia plurality. See, e.g., Rapanos at 

787-88 (Stevens, J., dissenting). (p. 19)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Florida Department of Agriculture and Consumer Services (Doc. #10260)

10.566 In discussing the Corps’s definition of “tributary,” even Justice Kennedy recognized that 

minor tributaries, though they may be capable of meeting the then-applicable 

requirements of feeding into a traditional navigable water (or tributary thereof) and 

possessing an ordinary high water mark (OHWM), may not bear a sufficient enough 

nexus to the regulated waters to themselves be considered “navigable waters” under the 

Act. Rapanos, 547 U.S. at 781. Justice Kennedy suggested the Corps identify categories 

of tributaries that, due to (1) volume of flow, (2) proximity to navigable waters, or (3) 

other relevant considerations, are “significant enough” to warrant inclusion of wetlands 

adjacent to them. Id. The proposed rule goes much further than Justice Kennedy’s 

suggestion. The proposed definition of “tributary” is a water that is physically 

characterized by the presence of a bed, banks, and OHWM, but also includes wetlands, 

lakes, and ponds, even if they lack a bed, banks, or OHWM, if they contribute flow, 

either directly or through another water, to a jurisdictional water. A tributary, including 

wetlands, can be a natural, man-altered, or man-made water, which includes rivers, 

streams, lakes, ponds, impoundments, canals, and ditches that are not specifically 

excluded as having been wholly excavated out of uplands, drain only uplands, and have 

less than perennial flow or those that do not contribute flow, either directly or through 

another water, to a traditional navigable water. (p. 72-73)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.567 Prior to Rapanos, courts of appeal upheld the agencies’ contention that the definition of 

“waters of the U.S.” included every tributary, including artificial roadside ditches, that 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

540

had a “hydrological connection” with a traditional navigable water and any wetland 

adjacent to that water. See U.S. v. Deaton, 332 F.3d 698, 710-712 (4th Cir. 2003); U.S. v. 

Johnson, 437 F.3d157, 179-181 (1st Cir. 2006); U.S. v. Banks, 115 F.3d 916, 921 (11th 

Cir. 1997); U.S. v. Rapanos, 339 F.3d 447, 453 (6th Cir. 2003); Carabell v. U.S. Army 

Corps of Engineers, 391 F.3d 704, 710 (6th Cir 2004).But in Rapanos, five justices, 

through the plurality opinion and the concurring Kennedy opinion, all agreed that the 

hydrological connection standard was overly broad. 547 U.S. at 742, 784. Since Rapanos, 

the EPA and the Corps have been evaluating “tributaries” consistent with Justice 

Kennedy’s suggestion: on a case-by-case basis to determine if the water in question met 

the significant nexus test.” See June 2007 Legal Memorandum: “Clean Water Act 

Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v.United States & 

Carabell v. United States.” This discrete, individualized approach is the basis on which 

the agencies now argue that inclusion of the categorical definition of “tributary” gives 

greater certainty to the public over which waters are included. However, such categorical 

determination also broadens the scope of “waters of the U.S.,” perhaps foreshadowing a 

return to the pre-Rapanos, hydrological connection standard or perhaps to an even 

broader standard given the removal of the requirement of an OHWM in “other waters” in 

the proposed rule. The most egregious problem with the proposed rule’s emphasis on 

flow, regardless of volume and contributed either directly or through another water (read: 

nominal hydrologic connection), is that it has already been rejected by the Supreme 

Court. (p. 73-74)

Agency Response: The rule is narrower in scope than the existing rule and is 

consistent with the statute and the caselaw. Technical Support Document, I.A. and 

C.

Texas Commission of Environmental Quality (Doc. #14279.1)

10.568 Non-navigable tributaries should meet a jurisdictional test for relatively permanent, 

standing, or continuous flow and continuous surface connectivity for federal jurisdiction 

to be applied. The TCEQ asserts that the blanket application of the EPA's/USACE's 

jurisdiction over all tributaries is improper. Under the U.S. Supreme Court's plurality 

opinion in Rapanos v. United States written by Justice Scalia, if a non-navigable tributary 

does not have a"relatively permanent, standing, or continuous" flow and a"continuous 

surface connection" to a navigable water body, there is no federal jurisdiction over the 

tributary. The TCEQ requests that EPA/USACE implement this concept in any 

interpretation of "waters of the United States." 

The TCEQ's position is that EPA/USACE should follow Justice Scalia's opinion in 

Rapanos, which represented the opinion of four justices, rather than Justice Kennedy's 

concurring opinion setting out a"significant nexus" test, for both legal and policy reasons. 

From a legal standpoint, the TCEQ agrees with the Texas Attorney General's comments 

submitted on August ii, 2014 explaining why Justice Scalia's plurality opinion should be 

followed rather than Justice Kennedy's concurring opinion based on Marks v. U.S. 

establishing which opinion represents the holding of the Court when there is not a 

majority. From a policy standpoint, the plurality opinion sets out a narrower, more 

objective standard to apply thus creating greater certainty for the states and other 

stakeholders while also allowing for the protection of water quality. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

541

By contrast, the concurring opinion sets out a broader; more subjective standard which 

conflicts with the primary role of the states by allowing the EPA/USACE broad 

discretion, and will create greater uncertainty for the regulated community. However, 

even Justice Kennedy, in his concurring opinion, expressed skepticism with the breadth 

of USACE's then-existing standard for tributaries, which was similar to the proposed rule 

deflnition, because it "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 

toward it." Rapanos v. United States; 547 U.S. 759, 781. Nonetheless, in the proposed 

rule, EPA/USACE purporting to follow Justice Kennedy's concurring opinion, propose 

that all tributaries are jurisdictional by rule. 

States should be allowed to exercise the primary responsibility set forth by the CWA by 

applying state-determined, flexible, site-specific strategies that will achieve long term 

water quality objectives. This rulemaking is another example of overreach by the 

EPA/USACE. The Solid Waste Agency of Northern Cook County v. USACE (SWANCC) 

and Rapanos Supreme Court decisions limited the extent to which EPA's and the 

USACE's jurisdiction extends beyond navigable-in-fact waters. Current and future 

regulatory actions by EPA/USACE should follow the decisions made by the Court. (p. 3-

4)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Office of the Governor, State of Wyoming (Doc. #14584)

10.569 The proposed rule unlawfully enlarges the scope of federal jurisdiction with the proposed 

definition of "tributaries." The U.S. Supreme Court, in a plurality opinion in Rapanos v. 

United States, indicated that federal jurisdiction should be constrained to "relatively 

permanent, standing, or continually flowing bodies of water," specifically excluding 

"channels through which water flows intermittently, or ephemerally, or channels that 

periodically provide drainage for rainfall." 547 U.S. 715, 739-42 (2006) (Kennedy, J., 

concurring in judgment). Even Justice Kennedy, on whose opinion the Agencies rely, did 

not agree the Agencies have jurisdiction over "remote and insubstantial" waters that "may 

flow into traditional navigable waters.'' Id. at 778- 779. Justice Kennedy objected to an 

interpretation of the Act that extended jurisdiction to remote features carrying little and 

even no water. Id. In contrast, the proposed rule defines tributaries, for jurisdictional 

purposes, to include any feature, carrying water or not, with a "bed and bank and ordinary 

high water mark ... which contributes flow, either directly or through another water." 79 

Fed. Reg. 22274. The Agencies have disregarded the opinion of the plurality, as well as 

Justice Kennedy"s interpretation. They act ultra vires, under the proposed rule, in trying 

to take jurisdictional authority over more waters in contradiction to the case law. (p.3)

Agency Response: The rule is narrower in scope than the existing regulation and

is consistent with the statute and the caselaw. Technical Support Document, I.A. 

and C.

City of Newport News (Doc. #10956)

10.570 The agencies state that while Rapanos dealt with adjacent wetlands, that it is reasonable 

to assume that Justice Kennedy meant to establish the same test regardless of the water 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

542

involved and that the tributary definition is appropriate because the five justices that 

decided Rapanos did not reject current regulations that extended jurisdiction to some nonnavigable water. Page 22204. This is a fallacious argument as this was not an issue before 

the Court. (p. 2)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Association of California Water Agencies (Doc. #12978)

10.571 The proposed rule broadly concludes that all tributaries as defined in the rule have a 

significant nexus to “waters of the United States” and are therefore subject to CWA 

jurisdiction. This means that the jurisdictional scope of the proposed rule is expanded 

from current practice to include features in the bright‐line categories that might not be 

found to have a significant nexus to “waters of the United States” on a case by case basis. 

This same approach was rejected by Justice Kennedy in Rapanos. As stated in Rapanos, 

the Corps deemed a water a tributary “if it feeds into a traditional navigable water (or a 

tributary thereof) and possesses an ordinary high‐water mark.” Rapanos, at 781. Justice 

Kennedy found this standard too broad because it seemed “to leave wide room for 

regulation of drains, ditches, and streams remote from any navigable‐in‐fact water and 

carrying only minor water volumes toward it.” Id. In this way, the breadth of the standard 

“precludes its adoption as the determinative measure of whether adjacent wetlands are 

likely to play an important role in the integrity of an aquatic system comprising navigable 

waters as traditionally understood.” Id. Likewise, the breadth of the definition of 

“tributary” in the proposed rule precludes its adoption. Under the current proposal, many 

remote and ephemeral tributaries in the arid west would become jurisdictional, resulting 

in significant additional and unnecessary regulatory burdens on water agencies. ACWA 

requests that the Agencies evaluate tributaries, such as ephemeral streams, on a 

case‐by‐case basis to ensure they pass the “significant nexus” test. (p. 6-7)

Agency Response: The rule is narrower in the scope than the existing rule and the 

rule is consistent with the statute and the caselaw. Technical Support Document, 

I.A. and C.

Utah Association of Counties (Doc. #14756)

10.572 33 CFR 328.3 Current Rule: (5) Tributaries of waters identified in paragraphs (a)(1) 

through (4) of this section;

UAC Proposed Change to 33 CFR 328.3: (5) All tributaries of waters (other than waters 

that are themselves wetlands) identified in paragraphs (a)(1) through (4) of this section, 

provided the tributaries have a significant nexus to such waters; (p. 9-10)

Agency Response: This a description not a comment. The rule is consistent with 

the statute and the caselaw. Technical Support Document, I.A. and C

10.573 UAC Proposed Change to 33 CFR 328.3: (5) (4) Tributary. The term tributary means a 

water physically characterized by the presence of a bed and banks and ordinary high 

water mark, as defined at 33 CFR 328.3(e), which contributes flow, either directly or 

through another water, to a water identified in paragraphs (a)(1) through (4) of this 

section. In addition, wetlands, lakes, and ponds are tributaries (even if they lack a 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

543

bed and banks or ordinary high water mark) if they contribute flow, either directly 

or through another water to a water identified in paragraphs (a)(1) through (3) of 

this section. A water that otherwise qualifies as a tributary under this definition 

does not lose its status as a tributary if, for any length, there are one or more manmade breaks (such as bridges, culverts, pipes, or dams), or one or more natural 

breaks (such as wetlands at the head of or 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. A tributary, 

including wetlands, can be a natural, man-altered, or man-made water and includes 

waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches not 

excluded in paragraph (b)(3) or (4) of this section. (p. 17-18)

Agency Response: The agencies do not define tributary to include wetlands, lakes 

or ponds. The rule is consistent with the statute and the caselaw. Technical 

Support Document, I.A. and C.

Coalition of Local Governments (Doc. #15516)

10.574 The Proposed Rule plans to extend the definition of a tributary to include those waters 

with flows that may be “ephemeral, intermittent or perennial.” 79 Fed. Reg. at 22202. 

Tributaries also would include any “natural, man-altered, or man-made water and 

includes waters such as...impoundments, canals, and ditches not excluded in paragraph 

(b)(3) or (4).” Id. This policy change violates the plurality opinion in Rapanos, which 

expressly held that a jurisdictional water “includes only those relatively permanent, 

standing or continuously flowing bodies of water ‘forming geographic features’ that are 

described in ordinary parlance as ‘streams[,]...oceans, rivers, [and] lakes.’” 547 U.S. at 

739. It does not include channels where water flows intermittently or ephemerally, or 

channels where rainfall periodically drains. Id. This definition clearly does not include 

natural or man-made impoundments, canals, and ditches or any ephemeral or intermittent 

waters. As the plurality stated, the Corps stretches the term “waters of the United States” 

beyond its authority granted under the CWA by applying it to “ephemeral streams, wet 

meadows, storm sewers and culverts, direction sheet flow during storm events, drain tiles, 

man-made drainage ditches, and dry arroyos in the middle of the desert.” Id. at 734. 

These type of tributaries contribute little to no water to the “waters of the United States” 

and never reach navigability. (p. 9)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.575 Stream that only flow seasonally or after rain have not always been protected by the 

CWA. The Proposed Rule would violate the plurality opinion under Rapanos, which 

expressly held that a jurisdictional water “includes only those relatively permanent, 

standing or continuously flowing bodies of water,” not those channels where water flows 

intermittently or ephemerally. 547 U.S. at 739. The current regulations make no reference 

to ephemeral streams or ditches. (p. 18)

Agency Response: The rule is narrower in scope than the existing rule and the 

rule is consistent with the statute and the caselaw. Technical Support Document, 

I.A. and C.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

544

10.576 As was discussed supra Section III, the proposed rule protects a variety of waters that 

were not historically covered under the CWA and expands the holdings of the Supreme 

Court. The proposed rule includes all ephemeral, intermittent or perennial streams as 

water of the United States. It proposes to include all waters located within floodplains 

and riparian areas of waters of the United States, or any water with a surface or 

subsurface connection with a jurisdictional water. These proposed changes will bring 

hundreds and thousands of more waters within the control of the EPA. The Proposed 

Rule reflects a broader interpretation of jurisdiction established by the Supreme Court in 

Riverside Bayview Homes Inc., SWANCC, and Rapanos. (p. 20-12)

Agency Response: The rule is narrower in scope than the existing rule and the 

rule is consistent with the statute and the caselaw. Technical Support Document, 

I.A. and C

Landmark Legal Foundation (Doc. #15364)

10.577 The Proposed Rule is impermissibly broad. The application of the proposed rule does not 

survive scrutiny under the standards established by Justice Kennedy in Rapanos. As 

presently constituted, the Agencies will consider "ephemeral" tributaries subject to 

regulation. "Ephemeral" means "lasting a very short time." Merriam-Webster.com. 

Merriam-Webster, 2014 Web. Nov. 5,2014.(p. 9)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Waters Advocacy Coalition (Doc. #17921.1)

10.578 The proposed definition of tributaries is inconsistent with Rapanos and will sweep in 

waters and features well beyond the reach of the agencies’ CWA authority. Under the 

proposed rule, tributaries, impoundments of tributaries, and waters adjacent to tributaries 

are all per se jurisdictional. 79 Fed. Reg. 22,262-63. The proposed rule defines 

“tributary” as “a water physically characterized by the presence of a bed and banks and 

ordinary high water mark...which contributes flow, either directly or through another 

water” to a TNW, interstate water, territorial sea, or impoundment. Id. at 22,263. 

Wetlands, lakes, and ponds can be treated as tributaries if they contribute flow to a TNW, 

interstate water, or territorial sea, even if they lack a bed, banks, and OHWM. Id. A water 

does not lose its status as a jurisdictional tributary due to manmade breaks (e.g., bridges, 

culverts, pipes, or dams) of any length, so long as a bed, banks, and OHWM can be 

identified upstream of the break. Id. A tributary “can be a natural, manaltered, or 

manmade water and includes water such as rivers, streams lakes, ponds, impoundments, 

canals, and ditches [unless otherwise excluded].” Id. 

As we have previously noted in comments,1107 both the Rapanos plurality and Justice 

Kennedy were concerned about far-reaching jurisdiction over features far from navigable 

waters and carrying only minor volumes of flow. The plurality chastised the Corps for 

extending jurisdiction to “ephemeral streams, wet meadows, storm sewers and culverts, 

directional sheet flow during storm events, drain tiles, man-made drainage ditches, and 

 

1107 See WAC Comments on 2011 Draft Guidance, Exhibit 1 at 61; AFBF Comments on 2008 Rapanos Guidance, 

Exhibit 2 at 22. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

545

dry arroyos in the middle of the desert.” Rapanos, 547 U.S. at 734. Similarly, Justice 

Kennedy criticized the agencies’ “existing standard” for tributaries which “deems a water 

a tributary if it feeds into a traditional navigable water (or a tributary thereof) and 

possesses an ordinary high water mark” because it “leave[s] wide room for regulation of 

drains, ditches, and streams remote from any navigable-in-fact water and carrying only 

minor volumes toward it.” See id. at 781.

Contrary to the limits of CWA jurisdiction recognized by the Rapanos plurality and 

Justice Kennedy’s concurrence, the proposed definition of tributary allows for per se 

jurisdiction over features with remote proximity and tenuous connections to TNWs, such 

as ephemeral drainages. The proposed definition does not require any consideration of 

frequency or duration of flow. Indeed, just like the agencies’ previous standard that the 

Supreme Court considered to be too far-reaching, the proposed rule’s tributary definition 

allows for regulation of drains, ditches, and streams with little or no relationship to 

traditional navigable waters. As such, the proposed rule’s definition of “tributary” goes 

well beyond the agencies’ previous assertions of jurisdiction that were criticized by the 

Rapanos Justices as exceeding the scope of their CWA authority. 

Furthermore, the categorical determination that all channelized waters with an OHWM 

that contribute flow have a significant nexus and are therefore per se jurisdictional 

ignores Justice Kennedy’s concerns about the breadth of a standard based on OHWM. 

Justice Kennedy was skeptical of the use of OHWM to establish jurisdiction and noted 

that the Corps district offices apply the OHWM standard inconsistently. Id. (citing GAO 

Report 04-297).1108 Justice Kennedy stated that in many cases the waters that would be 

jurisdictional under such a broad standard would be “little more related to navigable-infact waters than were the isolated ponds held to fall beyond the Act’s scope in 

SWANCC.” See id. at 781. Rather than limiting the scope of jurisdiction over tributaries 

in accordance with Justice Kennedy’s concurrence, the agencies announce a similarly 

broad standard in the proposed rule and ignore Justice Kennedy’s concern with the 

reliance on OHWM to determine jurisdiction. Again, the agencies’ assertion of 

jurisdiction over all tributaries essentially amounts to the “any hydrological connection” 

standard that was rejected by a majority of the Justices in Rapanos. (p. 101-102)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Idaho Association of Commerce & Industry (Doc. #15461)

10.579 The Agencies must revise the proposed rule to define jurisdiction over tributaries 

consistent with the Rapanos plurality. Under the plurality's approach, the Agencies would 

define a tributary as a water that contributes direct flow to a traditional navigable water 

via a continuous surface connection. The plurality's approach is consistent with the plain 

language of the CWA and its policy to preserve States' authority over land and water use. 

It is also consistent with SWANCC. The plurality opinion provides a clear, defensible 

 

1108 Years later, the Corps OHWM standard is still being applied inconsistently across districts. See Presentation by 

Matthew K. Mersel, U.S. Army Engineer Research and Development Center, Development of a National OHWM 

Delineation Technical Guidance (Mar. 14, 2014). 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

546

basis for Agencies to draw bright lines including certain types of water bodies within 

CWA jurisdiction and excluding other types of water bodies. 

Under the proposed rule, a "tributary" is a water that is "physically characterized by the 

presence of a bed and banks and ordinary high water mark (OHWM)," which also 

contributes flow, either directly or through another water, to a traditional navigable water. 

The Agencies define the term "OHWM" to means the physical characteristics or 

markings that delineate the fluctuations of a water's flow pattern. The Agencies' 

definition for "tributary" explicitly states that a tributary "can be a natural" man-altered, 

or man-made water" and includes all "rivers, streams, lakes, ponds, impoundments, 

canals, and ditches not excluded" under the narrow jurisdictional exclusions provided by 

the rule. The Agencies' proposed rule also makes it abundantly clear that the Agencies 

intend to regulate even ephemeral streams as "tributaries," stating that "[t]he flow in the 

tributary may be ephemeral, intermittent or perennial." 

The Agencies' proposed definition for "tributary" is overly broad and lacks sufficient 

clarity. As noted above, the Agencies' definition ignores the plurality opinion in Rapanos

and the holding in SWANCC, and it relies almost exclusive on legally irrelevant portions 

of Justice Kennedy's concurring opinion in Rapanos. Moreover) even if the Agencies' 

definition for "tributary" were consistent with the law, it is ambiguous, leaving the 

regulated public to guess as to which water bodies the Agencies intend to regulate. The 

Agencies propose to identify a "tributary" based on the presence of a bed, bank, OHWM, 

and any minimal amount of flow that eventually reaches navigable waters. As Justice 

Kennedy stated in his Rapanos opinion, however, these terms are not sufficiently detailed 

to provide appropriate limits on the Agencies' exercise of jurisdiction. Rapanos, 547 U.S. 

at 734. (p. 4)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.580 The Agencies suggest that their regulation of manmade features under the CWA is 

appropriate because, in the Agencies} view, "man-made and man-altered tributaries 

perform many of the same functions as natural tributaries, especially the conveyance of 

water that carries nutrients, pollutants, and other substances to traditional navigable 

waters, interstate waters, or the territorial seas." This statement reflects a fundamentally 

flawed interpretation of Supreme Court precedent under which the scope of the Agencies' 

jurisdiction would always depend on the Agencies' ecological judgments regarding 

effects on traditional navigable waters. This interpretation is not supported by the Court's 

decisions. In particular, SWANCC rejected the notion that the ecological considerations 

that justified the Corps' jurisdiction over the adjacent wetlands in Riverside Bayview

provided an independent basis for regulating physically isolated waters, finding that such 

ecological considerations were irrelevant outside the limited context of adjacent 

wetlands. 

The Agencies should not consider ecological factors in determining whether manmade 

water bodies are jurisdictional "waters of the United States." Instead, as the Supreme 

Court has stated, the Agencies should consider the plain language of the CWA, giving 

real consideration to the Act's explicit policy to preserve local authority over land and 

water use, and giving at least some meaning to the term "navigable." Based on the Act's 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

547

plain language and the Supreme Court's decisions the Agencies should take this 

opportunity to reverse its historic position that manmade water bodies are jurisdictional 

"waters of the United States" and amend the rule's exclusions to more broadly exclude 

most types of artificial water bodies, such as irrigation and drainage ditches, grass-lined 

swales, canals, detention facilities, wastewater treatment facilities (whether or not they 

discharge subject to a NPDES permit), mine pits, man-made ponds/ impoundments} farm 

ponds, and landscape amenities. Excluding most artificial water bodies would be 

consistent with the term "navigable" and with the Act's policy of preserving local 

authority, allowing local authorities to draw the appropriate lines between regulated water 

bodies and unregulated manmade features. (p. 4-5)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The rule provides additional exclusions. 

Preamble IV.

Portland Cement Association (Doc. 13271)

10.581 The rule would include as jurisdictional waters any feature with a bed and bank and 

ordinary high water mark that contributes flow to any core water or impoundment of a 

core water. Obviously, this definition does not require water to be carried in these 

features for any length of time and therefore would include all ephemeral waters, which 

flow only in response to rainfall and snowmelt.

The Agencies are without jurisdiction to state that all ephemeral waters are automatically 

jurisdictional. As the Supreme Court said in SWANCC, "we cannot agree.. that Congress' 

separate definitional use of the phrase 'waters of the United States ' constitutes a basis for 

reading the term ' navigable waters' out of the statute." In other words, the Supreme Court 

has held that there must be some limit to the upstream jurisdiction of the Act. An 

interpretation of the CWA that includes every ephemeral feature with a bed and bank and 

ordinary high water mark regardless of how infrequently the feature carries water 

disregards Congress' use of the term "navigable" in the Act. (p. 14)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.582 Under the current regulations, a wetland need not directly abut a “flowing” water to be 

considered to be “adjacent” to it and therefore be jurisdictional. However, under the 

current regulations, and the caselaw decided pursuant to those regulations, a wetland that 

is not adjacent to a flowing water, but is adjacent to a wetland that is, is not 

jurisdictional.1109

. By defining wetlands that contribute flow to a flowing water of the US as tributaries, 

wetlands adjacent to them will be considered adjacent to a tributary (rather than just to a 

wetland) and will be considered to be jurisdictional. There is no valid rationale for the 

change and the change does not comport with the CWA. (p. 22)

 

1109 33 C.F.R § 328.3(A)(7) and 40 C.F.R. § 230.3(s)(7) (both defining the term “waters of the United States” to 

include “[w]etlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) 

(1) through (6) of this section.”)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

548

Agency Response: The rule does not define tributary to include wetlands. 

Preamble, IV.

Home Builders Association of Central Arizona (Doc. #14285)

10.583 In the last 13 years, the agencies have twice been told by the United States Supreme 

Court that their existing rules1110 defining “waters of the United States” exceed the scope 

of the agencies’ allowable regulatory authority under the CWA. Solid Waste Agency of 

Northern Cook County v. United States, 531 U.S. 159 (2001) (“SWANCC”); Rapanos v. 

United States, 547 U.S. 715 (2006) (“Rapanos”). For example, prior to these decisions, 

the agencies’ rules provided that all tributaries of waters otherwise regulated under the 

CWA were themselves automatically regulated. In the arid West, this meant that the 

agencies regulated ephemeral systems to the very top of the watershed, without regard to 

the relationship or influence that the washes would have on traditional navigable waters

(“TNWs”), and in fact without much regard at all for the boundary between land and 

waters. 2 See, e.g., 33 C.F.R. § 328.3(a) (Corps rule); 40 C.F.R. § 230.3(s) (EPA Section 

404(b)(1) guidelines rule). 

If there is one basic conclusion that can be drawn from the decision in Rapanos, it is that 

the Supreme Court concluded that the agencies had exceeded the allowable bounds of 

their authority established in the Clean Water Act. See, e.g., 547 U.S. at 731-32 (phrase 

“waters of the United States” as used in the CWA “cannot bear the expansive meaning 

the Corps would give it”) (plurality opinion); id. at 758 (in CWA, Congress used “broad, 

somewhat ambiguous but nonetheless clearly limiting terms”) (Roberts, C.J., concurring) 

; id. at 784 (Kennedy, J., concurring) (“mere hydrologic connection” not sufficient to 

establish jurisdiction). 

Now, almost a decade after Rapanos, the agencies are proposing a rule that would assert 

jurisdiction to essentially the same extent as it was asserted prior to the SWANCC and 

Rapanos decisions, and arguably assert authority even more broadly. For example, the 

proposal would once again assert jurisdiction automatically over all tributaries, regardless 

of their size, the frequency or duration of flow, or their distance from a downstream

traditional navigable water, so long as they possess an ordinary high water mark 

(“OHWM”) and contribute flow, directly or indirectly, to a downstream traditional 

navigable water. The proposal also would regulate a class of waters that has never before 

been identified as regulated in agency rules (i.e., all adjacent “waters”; existing 

regulations are limited to adjacent “wetlands”). The proposal also creates another class of 

regulated waters – tributaries to interstate waters – that completely sidesteps the direction 

of the Supreme Court. The over-breadth of the proposal is nowhere more evident than in 

the fact that it may provide a basis for regulating (as an “other water”) the very isolated 

pond that was held non-jurisdictional in SWANCC. (p. 2-3)

Agency Response: The rule is narrower in scope than the existing rule and the 

rule is consistent with the statute and the caselaw. Technical Support Document, 

I.A. B. and C.

 

1110 See, e.g. , 33 C.F.R. § 328.3(a) (Corps rule); 40 C.F.R. § 230.3(s) (EPA Section 404(b)(1) guidelines rule).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

549

Arizona Mining Association (Doc. #13951)

10.584 The agencies’ proposal to regulate all tributaries unless specifically exempted under 33 

C.F.R. § 328.3(b) (and analogous regulations under other CWA programs) is based on 

the conclusion that “tributaries and the ecological functions they provide, alone or in 

combination with other tributaries in the watershed, significantly affect the chemical, 

physical and biological integrity of traditional navigable waters, interstate waters, and the 

territorial seas.” See 79 Fed. Reg. at 22201 (emphasis added); see also id. at 22206 

(tributaries, including headwater, intermittent and ephemeral streams, have a significant 

nexus, “especially when all tributaries in a watershed are considered in combination”).In 

other words, the agencies evaluated all tributaries in a watershed collectively, regardless 

of potentially differing characteristics among those tributaries (e.g., ephemeral vs. 

perennial tributaries, large vs. small tributaries, proximate to or far from a TNW, etc.). 

Having concluded that all tributaries, when evaluated collectively, are significant to 

downstream TNWs, the agencies then apparently conclude that this means each tributary 

individually is significant with respect to such waters, and that they are all (at least for 

regulatory purposes) equally significant. This renders the significant nexus test a nullity. 

(p. 2-3)

Agency Response: The rule is consistent with the statute and the caselaw and the 

science. Technical Support Document, I.A. and C, II and VII.

10.585 The regulation of all tributaries based on the potential for pollutant transport, as 

evidenced by an OHWM, is also inconsistent with Justice Kennedy’s concurring opinion 

in Rapanos: Rather than focusing on a method for determining those tributaries likely to 

have a significant nexus on TNWs, as envisioned by Justice Kennedy, the agencies have 

taken a different approach in the proposal, concluding that all tributaries are regulated if 

they are “part of a tributary system that drains to” a TNW, so long as the tributary 

possesses a bed and banks and an ordinary high water mark... The assumption is that the 

presence of an ordinary high water mark and bed and banks demonstrates sufficient flow 

for a significant effect to be presumed...

...Justice Kennedy rejected this approach to determining jurisdiction. Immediately 

following his statements (quoted above) that it might be possible for agencies to identify 

categories of tributaries that are likely to have a significant nexus (based on objective 

criteria such as volume of flow and proximity to navigable waters), he stated as follows:

“The Corps’ existing standard for tributaries, however, provides no such 

assurance. As noted earlier, the Corps deems a water a tributary if it feeds into a 

traditional navigable water (or a tributary thereof) and possesses an ordinary highwater mark . . . This standard presumably provides a rough measure of the volume 

and regularity of flow. Assuming it is subject to reasonably consistent application 

. . . it 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 the 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 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

550

comprising navigable waters as traditionally understood.” 547 U.S. at 781 

(emphasis added).

Later, when reviewing the facts of the particular cases before the Court, Justice Kennedy 

noted that the Court of Appeals in one of the cases had found evidence that adjacent 

wetlands had a surface water connection with the non-navigable tributary to which they 

were adjacent. Because that tributary, in turn, had a hydrologic connection with a 

downstream navigable-in-fact water, the Court of Appeals held that a significant nexus 

had been established “by the presence of a hydrologic connection.” Justice Kennedy 

rejected this as a sufficient basis for jurisdiction, stating as follows:

“Absent some measure of the significance of the connection for downstream 

water quality, this standard was too uncertain. Under the analysis described earlier 

. . . mere hydrologic connection should not suffice in all cases; the connection 

may be too insubstantial for the hydrologic linkage to establish the required nexus 

with navigable waters as traditionally understood.” 547 U.S. at 784-85 (emphasis 

added, internal citation omitted).

It is thus clear that the mere potential for contributing pollutants to downstream waters is 

insufficient to satisfy Justice Kennedy’s concept of a “significant nexus.” Yet that is 

precisely what the agencies have proposed as the basis for regulating all tributaries, up to 

the very point where the channel begins (which, in the arid West, could be dozens or even 

as much as a hundred or more miles from the nearest downstream TNW). This approach 

is simply not consistent with Justice Kennedy’s opinion. Some standard needs to be 

established that would distinguish between tributaries that have a significant effect on 

downstream TNWs, and those that have merely a “speculative or insubstantial” effect (to 

use Justice Kennedy’s phrase, see 547 U.S. at 780), and are thus outside the scope of the 

CWA. (p. 6-7)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.586 ...the AMA believes that the agencies are not correctly following the controlling opinions 

in Rapanos by attempting to regulate all tributaries collectively. This becomes most 

evident when the proposed rule’s definition of “tributary” is applied to dry desert (i.e., 

ephemeral) features in the arid West. The proposed rule would regulate all tributaries 

(defined as features that have a bed, bank, and OHWM and “which contribute flow” to 

otherwise regulated waters), and deems all features meeting this definition to have the 

“significant nexus” required for jurisdiction no matter how minimal the actual chemical, 

physical, and biological impact. The rule suggests that the presence of an OHWM and 

beds and banks are evidence of flow. Left unanswered is the question of how much flow 

is enough, of what duration, and how frequently flow must occur. This approach cannot 

be legally or scientifically supported as applied to dry desert washes in arid systems. (p. 

7)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.587 Lastly, we note that in his concurring opinion in Rapanos, Justice Kennedy suggested 

that presence of an OHWM “may” provide information relevant to a nexus determination 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

551

“[a]ssuming it is subject to reasonably consistent application.” 547 U.S. at 781 (citing a 

2004 GAO report noting inconsistencies in OHWM determinations among Corps 

Districts). As the Corps documents quoted above make abundantly clear, the nature of 

dry desert washes in the arid West makes it extremely difficult to reliably and 

consistently determine OHWM for such features within the region. Use of OHWM as a 

basis for determining jurisdiction over dry desert washes, as the agencies propose, 

therefore is not consistent with Justice Kennedy’s vision of the “significant nexus” test. 

(p. 12)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.588 The preamble references FPL Energy Marine Hydro v. FERC, 287 F.3d 1151 (D.C. Cir. 

2002) where a navigability finding by the Federal Energy Regulatory Commission “based 

upon three experimental canoe trips taken specifically to demonstrate the river’s 

navigability” was upheld. This “float a boat” test significantly misstates traditional 

federal approaches to navigability determinations.

As noted above, to be navigable, waters must be “used, or are susceptible of being used, 

in their ordinary condition, as highways for commerce, over which trade and travel are or 

may be conducted in the customary modes of trade and travel on water . . . .” The Daniel 

Ball, supra. The Montello, 87 U.S. 430 (1874) (cited in the preamble) represented a 

refinement of The Daniel Ball test in holding that obstructions or obstacles to navigation 

do not defeat a finding of navigability. That case involved a river system that in its 

natural state could not have been used by steamboats or larger vessels due to the presence 

of rapids and other obstructions but nevertheless was used historically to carry a part of 

the “immense fur trade of the Northwest” over more than a century. Id. at 440. There was 

no question that a substantial canoe-based interstate commerce had been conducted on 

this waterway.

In response to criticism that the decision would result in virtually any stream being 

considered navigable, the Montello Court said: “It is not, however, . . . 'every small creek 

in which a fishing skiff or gunning canoe can be made to float at high water which is

deemed navigable, but, in order to give it the character of a navigable stream, it must be 

generally and commonly useful to some purpose of trade or agriculture.” Id.; see also 

Harrison v. Fite, 148 F. 781 (8th Cir. 1906) (“Mere depth of water, without profitable 

utility, will not render a water course navigable in the legal sense, so as to subject it to 

public servitude, nor will the fact that it is sufficient for pleasure boating or to enable 

hunters or fishermen to float their skiffs or canoes”); North American Dredging Co. of 

Nev. v. Mintzer, 245 F. 297 (9th Cir. 1917) (same). Obviously, in The Montello, the 

extensive fur trade conducted on the watercourse in question was the basis for a finding 

of navigability, not the mere use by canoes. It does not stand for the proposition that 

navigating a water body by canoe is enough to establish that a waterbody is navigable-infact.

Alaska v. Ahtna, Inc., 891 F.2d 1404 (9th Cir. 1989) (also cited in the preamble) similarly 

does not support a simple “float a boat” test. In Ahtna, the court upheld a finding of 

navigability of the Gulkana River in Alaska based on evidence of substantial flows in the 

river (3,600 to 4,800 cubic feet per second from May to September) and extensive 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

552

commercial recreational use. Id. at 1402-03. Thus, this case does not stand for the 

proposition that a few canoe trips are sufficient to establish navigability. (p. 17-18)

Agency Response: The final rule makes no change to the agencies’ longstanding 

regulatory text for traditional navigable waters. The preamble to the proposed rule 

and the Preamble and the Technical Support Document reflect the considerations 

the agencies will use when making traditional navigable waters determinations. 

When such a determination is part of a final agency action, if challenged, the federal 

courts will decide whether a particular water is a traditional navigable water for 

purposes of the Clean Water Act.

West Virginia Independent Oil and Gas Association (Doc. #15406)

10.589 Under the Proposed Rule, the Agencies seek to make a blanket regulatory determination 

that all tributaries of traditional navigable waters, interstate waters (including interstate 

wetlands), the territorial seas, and impoundments of these waters possess the requisite 

"significant nexus" and therefore would be categorically jurisdictional waters. See 79 

Fed. Reg. at 22259-60.1111 This one-size-fits-all approach, purported to be "based on 

existing science and the law," id. at 22193, wholly disregards the plurality opinion in 

Rapanos (which would exclude from jurisdiction, at a minimum, "channels through 

which water flows intermittently or ephemerally, or channels that periodically provide 

drainage for rainfall"1112), but it also does away with the nuanced, case-by-case analysis 

urged by Justice Kennedy in his concurrence. Furthermore, the Agencies' approach in the 

Proposed Rule would read the "significance" requirement out of the "significant nexus" 

standard. Just because a connection is not speculative or inconsequential does not 

automatically render it "significant" in nature, and this fundamental qualitative threshold 

must be retained if the agency in good faith seeks to incorporate Justice Kennedy's 

standard. This blanket classification of tributaries as jurisdictional also ignores the 

limitations imposed by Riverside Bayview and SWANCC.

Finally, to the extent that the definition of "tributary" itself can include adjacent or 

intervening wetlands, see n.3, this would appear to be in direct conflict with even Justice 

 

1111 The proposed new definition of "tributary" is, unsurprisingly, extremely broad. See 79 Fed. Reg. at 22263 

(proposed 33 C.F.R. § 328.3(c)(5), defining "tributary" as "a water physically characterized by the presence of a bed 

and banks and ordinary high water mark...which contributes flow, either directly or through another water, to a 

water identified in [33 C.F.R. § 328.3(a)(1) through (4)]. In addition, wetlands, lakes, and ponds are tributaries (even 

if they lack a bed and banks or ordinary high water mark) if they contribute flow, either directly or through anther 

water[,] to a water identified in [33 C.F.R. § 328.3(a)(1) through (3)]. A water that otherwise qualifies as a tributary 

under this definition does not lose its status as a tributary if, for any length, there are one or more man-made breaks 

(such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands at the head of or 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. A tributary, including wetlands, can be a 

natural, man-altered, or man-made water and includes waters such as rivers, streams, lakes, ponds, impoundments, 

canals, and ditches not excluded in [33 C.F.R. § 328.3(b)(3) or (4)])." The referenced exclusions are to certain 

ditches that either (1) are excavated wholly in uplands, drain only uplands, and have less than perennial flow, and 

(2) ditches that do not contribute flow, either directly or through another water, to an identified water. Id. (proposed 

33 C.F.R. § 328.3(b)(3) and (4)). With regard to the first category, the critical term "uplands" is vague and 

undefined; with regard to the second category, its application is anticipated to be fairly limited as many ditches 

would be expected to have the potential to contribute at least some flow. 

1112 Rapanos, 547 U.S. at 739.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

553

Kennedy's view of the agency's prior approach to tributaries as articulated in Rapanos: 

"[T]he breadth of this standard [for defining tributary]—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." Rapanos, 547 U.S. at 

781-82. (p. 6-7)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The definition of tributary in the rule 

does not include wetlands. Preamble, IV.

Halliburton Energy Services, Inc. (Doc. # 15509)

10.590 The Agencies’ categorical assertion of jurisdiction over tributaries and adjacent waters is 

inconsistent with Supreme Court precendent. As noted above, the proposed definition of 

tributaries captures non-adjacent, non-navigable tributaries of limited flow on a per se 

basis based on a blanket generalization that tributary systems are (of course and 

unsurprisingly) at some level connected to navigable waters. The Agencies assert that this 

connectivity constitutes a “significant nexus” for tributary systems as a whole. But even 

Justice Kennedy’s concurring opinion in Rapanos does not support this new and 

expansive definition of tributary that reaches to the most remote and ephemeral stretches 

of the hydrological system.

In fact, Justice Kennedy’s opinion is replete with language demonstrating that he did not 

contemplate that all tributaries would be considered jurisdictional. For example, 

according to Justice Kennedy, the CWA does not go so far as to establish federal 

jurisdiction “whenever wetlands lie alongside a ditch or drain, however remote and 

insubstantial, that may eventually flow into traditional navigable waters.”1113 He further 

explained that an OHWM standard for what constitutes a “tributary” presumably 

provides a rough measure of the volume and regularity flow, and so “assuming it is 

subject to reasonably consistent application” [but citing a study suggesting otherwise], “it 

may well provide a reasonable measure of whether specific minor tributaries bear a 

sufficient nexus with other regulated waters to constitute ‘navigable water’ under the 

[CWA].”1114 Moreover, Justice Kennedy state that a “[m]ere hydrological connection 

should not be sufficient [to establish jurisdiction] in all cases; the connection may be too 

insubstantial for the hydrological linkage to establish the required nexus with navigable 

waters as traditionally understood.”1115

Moreover, under the Agencies’ construct, the extension of CWA jurisdiction to all 

tributaries no matter how ephemeral in nature automatically gives the Agencies 

jurisdiction over all wetlands and water bodies considered to be adjacent to these 

 

1113

 Id.

1114 Id. At 781 (emphasis added).

1115 Id. At 786
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

554

“tributaries” under the Agencies’ expansive definition. However, Justice Kennedy made 

clear that such blanket assertions of jurisdictions go too far:

“[T]he breadth of this standard [i.e., the use of an OHWM alone to establish 

jurisdiction over a tributary] – 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 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. 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 pools held to fall beyond the Act’s scope in SWANCC.”

1116

The proposed rule ignores these limits on federal jurisdiction. Instead, the Agencies are 

attempting to hurdle these statutory limits, as interpreted by the Supreme Court, by 

latching onto the concept of a “significant nexus”, untethering it from the underlying 

opinions, and using aggregation to avoid any specific analysis or reasonable limits, such 

as breaks in the OHWM. The proposed definition of tributaries reaches too far and 

therefore is not supported by the CWA. (p. 9-10)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

American Petroleum Institute (Doc. #15115)

10.591 This test for jurisdiction over tributaries and wetlands embodies both opinions 

constituting the majority opinion in Rapanos, and it should form the basis for this 

rulemaking for wetlands, tributaries, adjacent waters, and isolated “other waters.” The 

application of this jurisdictional test would be clear and straightforward. 

Although the Agencies have based major portions of the 2014 Proposed Rule on the 

wrong jurisdictional test, they also misinterpret and misapply Justice Kennedy’s 

significant nexus test. By asserting jurisdiction over landscape features that have a bed, 

bank, and ordinary high water mark—but almost never actually contain water—the 

Agencies claim jurisdiction over landscape features that have insignificant or nonexistent 

connections to a navigable water. By asserting jurisdiction over all waters “adjacent” to 

navigable waters but not actually connected to them, the Agencies assert jurisdiction over 

many waters that lack a substantial connection to a navigable water. And with respect to 

“other waters,” the Agencies have stretched the application of the significant nexus 

beyond its breaking point by adopting a watershed aggregation approach to evaluate the 

nexus between an isolated intrastate water and a navigable water within the same 

watershed. (p. 3)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

 

1116

 Id. At 781-82.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

555

Oregon Cattlemen’s Association (Doc. #5273.1)

10.592 However, the jurisdictional status of “tributaries” was not at issue in Rapanos. Because 

Rapanos concerned the jurisdictional status of “wetlands,” which already had a precise 

regulatory definition under 40 C.F.R. 230.3(t), and not the jurisdictional status of 

“tributaries,” which would be given a regulatory definition for the first time under this 

proposed rule, the Court had no occasion to comment on this issue. Further, as the 

Rapanos Court expressly found, Congressional acquiescence to a regulation is not the 

same thing as approval of that regulation. Rapanos, 547 U.S. at 749-750. Writing for the 

plurality, Justice Scalia explained that absent “overwhelming” evidence of acquiescence, 

the Court should not substitute an Agency’s interpretation of a Federal statute for the 

actual text of that statute. Id. at 750 (citing SWANCC, 531 U.S. at 169-170). The Rapanos 

holding does not give the Agencies license to impose the regulations they propose.

Further, the Rapanos Court could not possibly have assented to the exercise of 

jurisdiction over wetlands because “tributaries” (as the agencies propose to define the 

term) was not defined in the regulations at issue as to include “wetlands.” See 40 C.F.R. 

230.3(s)(5). The Agencies should rely on the natural use of words as defined by 

Webster’s Dictionary, as did Justice Scalia in his Rapanos opinion. Rapanos, 547 U.S. at 

732. It is illogical and contrary to the natural use of words for the Agencies to conclude 

that a “tributary” means anything other than “a stream that flows into a larger stream or 

river or into a lake.” Webster’s New International Dictionary (2d ed. 1954). (p. 4)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The rule does not define tributary to 

include wetlands.

Alameda County Cattlewomen (Doc. #8674)

10.593 ACCW assert that only stream features with “relatively permanent, standing or 

continuous” flow, pursuant to Justice Scalia’s Plurality Opinion in Rapanos should be 

included in the definition of “tributary.”1117 This would limit the number of features that 

can be considered “tributaries” to those that could actually have a significant impact on 

the water quality of downstream waters, pursuant to the decision in Rapanos.

1118 It would 

also provide needed clarity to the ranching community. ACCW assert that intermittent 

and ephemeral features should NOT be considered “waters of the U.S.” because these 

features are best regulated by states and localities, and were not intended by Congress to 

be regulated by the federal government. EPA’s own Rapanos Guidance states, “Justice 

Scalia emphasizes that relatively permanent waters do not include tributaries ‘whose flow 

is coming and going at intervals...broken, fitful.’”1119 While ACCW disagree with the 

guidance’s ultimate position of being able to claim jurisdiction over intermittent or 

 

1117 Rapanos, J. Scalia, at 20 (In sum, on its only plausible interpretation, the phrase :the waters of the United States” 

includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic 

features “that are described in ordinary parlance as “stream[,]...oceans, rivers, [and] lakes.”).

1118 Id.

1119 EPA, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States &

Carabell v. United States, at 7 (Dec. 2, 2008)."
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

556

ephemeral streams under a significant nexus analysis, we request the agencies explain the 

rationale of this significant policy shift. (p. 10)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The 2008 Guidance was practical 

implementation guidance and not an interpretation of the CWA; to the extent there 

is a change in policy position, the agencies have provided a rationale. Preamble and 

Technical Support Document, I.C.

National Sorghum Producers (Doc. #10847)

10.594 First, the proposed rule assigns an impermissibly expansive definition of “tributaries” to 

be regulated as waters of the United States. The proposed rule defines “tributary” to mean 

“a water physically characterized by the presence of a bed and banks and ordinary high 

water mark...which contributes flow, either directly or through another water, to a 

[jurisdictional water].” A “water” does not lose its status as a tributary despite any manmade (e.g. bridges, culverts, pipes, or dams) or natural breaks provided that there is the 

presence of a bed, banks, and an ordinary high water mark upstream of the break. An 

ordinary high water mark means any sign that water has been there. A bed and banks 

means a slight change in elevation. The frequency, duration, and volume of water 

involved bears no relevance. For the first time, ditches would fall within the reach of the 

EPA and Corps regulations, including roadside, storm water, and irrigation ditches as 

well as other man-made conveyances. Ditches governable under the proposed rule could 

carry any amount of water which eventually flows over any distance through any number 

of other ditches to a navigable water. The exceptions to the rule are ditches that do not 

flow directly or indirectly to a jurisdictional water and ditches excavated wholly in 

uplands, that drain only in uplands, and that have less than perennial flow. Ephemeral 

streams would come within regulatory reach under the proposed rule even if they are dry 

most of the year. Parcels of land not wet most of the year but hosting water-tolerant 

vegetation are also subject to federal jurisdiction as are lakes and ponds even when there 

is no presence of a bed, banks, and an ordinary high water mark. Based on this allencompassing definition, we are hard-pressed to imagine what “water” the EPA and the 

Corps could not assert jurisdiction over. (p. 1-2)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The agencies disagree that the rule would 

regulate ditches for the first time. Preamble, IV; Technical Support Document, I.B. 

Many ditches will be excluded under the rule. Preamble, IV.

Alameda County Cattlewomen (Doc. #8674)

10.595 Even the Congressional Research Service (CRS) stated that the proposed rule has a 

“broadly defined” new definition of tributary, validating our concern that the proposed 

rule is a significant expansion compared to current regulations.1120 The agencies cannot 

 

1120 Congressional Research Service, EPA and the Army Corps’ Proposed Rule to Define “Waters of the United

States”, available at

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&sqi=2&ved=0CB4QFj

AA&url=http%3A%2F%2Ffas.org%2Fsgp%2Fcrs%2Fmisc%2FR43455.pdf&ei=JRYGVJJIzqjIBPjvgcgK&usg=A
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

557

claim that the proposed definition is not an expansion based on jurisdiction they asserted 

under their Migratory Bird rule, because that theory of jurisdiction was struck down by 

the Supreme Court in SWANCC.

1121 The agencies cannot claim the proposed rule is not an 

expansion based on their “any hydrological connection” theory because that too was 

struck down by the Supreme Court in Rapanos.

1122 The agencies cannot claim the proposed 

rule is not an expansion based on previous guidance documents, because guidance 

documents are not legally binding, cannot change the substance of the underlying 

regulation, and rarely can receive judicial review. (p. 6)

Agency Response: The existing rule did not define tributary and so had no limits 

on the scope of tributaries that were jurisdictional; the definition in the rule 

establishes limits for the first time on tributary. The rule is narrower in scope than 

the existing rule and the rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. B. and C.

10.596 The agencies claim jurisdiction broadly over all tributaries with no site-specific analysis 

needed. By rule, the agencies have declared anything with a bed, bank and OHWM that 

might ever contribute flow to be a jurisdictional water, without regard to their impact to 

downstream TNWs and therefore without regard to whether each will satisfy the 

significant nexus test. The negative impact of such a broad categorical sweep is 

compounded by the fact that due to the agencies’ new category of per se jurisdictional 

“adjacent waters” all open water “adjacent” to these tributaries will also become 

jurisdictional. This is an expansion of the agencies’ authority and cannot be reconciled 

with the Supreme Court decisions. 

The definition of “tributary” under the proposed rule is overly broad, encompassing any 

wet or dry feature that has a bed, a bank, and an OHWM that might ever contribute flow 

“directly or through another water,...” to either a Traditional Navigable Waters (TNW), 

an interstate water or wetland, a territorial sea or an impoundment a TNW, an interstate 

water or wetland, or a territorial sea. It also encompasses waters that lack a bed, bank and 

OHWM if they contribute flow directly or through another water to a TNW, an interstate 

water or wetland, or a territorial sea. (Proposed Rule at 22241). 

This definition cannot be supported by either the plurality or Justice Kennedy’s 

concurrence in Rapanos. The plurality opinion stated, “The breadth of the Corps’ existing 

standard for tributaries—which seems to leave room for regulating drains, ditches, and 

streams remote from any navigable-in-fact water and carrying only minor water-volumes 

toward it— precludes that standard’s 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.”1123 Justice Kennedy stated, 

“[t]hrough regulations or adjudication, the Corps may choose to identify categories of 

tributaries that, due to their volume of flow (either annually or on average), their 

 

FQjCNGq5dlTONe-KCN-v-5FOmTuh38v2w&sig2=UBrr5c69WZitk_UwSF9Odg&bvm=bv.74115972,d.aWw. 

(accessed on Sept. 2, 2014) (“the term “tributary” is newly and broadly defined in the proposal”)."

1121 Supra Note 9.

1122 Rapanos, J. Scalia, at 3 (“A wetland may not be considered “adjacent to” remote “waters of the United States” 

based on a mere hydrologic connection.”).

1123 Rapanos, J. Scalia, at 4."
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

558

proximity to navigable waters, or other relevant considerations, are significant enough 

that wetlands adjacent to them are likely, in the majority of cases, to perform Important 

functions for an aquatic system incorporating navigable waters.” Even Justice Kennedy’s 

concurrence in Rapanos recognized that the Corps’ definition of “tributary” at that time 

left “wide room for regulation of drains, ditches, and streams remote from any navigablein-fact water and carrying only minor water-volumes towards it...”1124 It can easily be 

determined that both the plurality and Justice Kennedy would not find all waters with a 

bed, bank, and OHWM to meet the requisite significant nexus test that “perform 

important functions for an aquatic system incorporating navigable waters.” To the 

contrary, Kennedy actually criticized the plurality opinion for potentially wrapping in 

many such waters that simply have a trickle of water running, but a trickle that runs into 

an otherwise navigable water either year-round or seasonally.1125 (p. 6-7)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Michigan Farm Bureau (Doc. #10196)

10.597 ...lacking the support for a categorical finding of significant nexus undermines the 

attempt by EPA and USACE to categorically regulate all tributaries as the agencies 

define them. The decision in Rapanos on which the agencies relies requires the test for 

significant nexus, but categorical inclusion of all tributaries, particularly the way they are 

defined in the proposed rule, falls short of that standard. This standard is missed even 

further by EPA and USACE's contention that waters are still categorically included even 

if separated by man-made or natural breaks, regardless of whether those breaks actually 

interrupt the significance of that water's connection downstream. (p. 5) 

Agency Response: The rule is consistent with the statute and the caselaw and the 

science. Preamble, Technical Support Document, I.A. and C; II and VII.

California Association of Winegrape Growers (Doc. #14593)

10.598 Justice’s Kennedy’s “significant nexus” standard was specific to determining jurisdiction 

for wetlands and does not apply to all waters such as tributaries. (Id. at 780-781.) 

Kennedy expressly rejected the propriety of expanding this aggregation standard to 

tributaries. Thus, to apply the significant nexus standard to tributaries directly 

contravenes the clear distinction drawn in Justice Kennedy’s concurring opinion. (p. 9)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Multiple Agricultural Organizations (Doc. #16357.1)

10.599 The Agencies claim the proposal is faithful to key Supreme Court decisions, yet the 

Supreme Court admonished the Agencies’ for using the OHWM indicator. The plurality 

 

1124 Rapanos, J. Kennedy, at 24-25 (stating that when looking at adjacent wetlands the Corps can only find “adjacent 

wetlands” jurisdictional for “certain major tributaries” because the Corps current definition for “tributary” was so 

broad as to include remote drains, ditches, and streams remote from any TNW)."

1125 Rapanos, J. Kennedy, at 12 (criticizing the plurality for allowing “[t]he merest trickle, if continuous, would 

count as a “water” subject to federal regulation...”)."
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

559

opinion in Rapanos v. United States criticized the use of the OHWM as an indicator of 

jurisdiction because it “extended the waters of the United States to virtually any land 

feature over which rainwater or drainage passes and leaves a visible mark—even if only 

the presence of litter and debris.” 547 U.S. 715, 725 (2006) (internal quotations omitted). 

Justice Kennedy disparaged the OHWM as providing “no such assurance” of a reliable 

standard for determining a significant nexus. Id. at 780-81 (Kennedy. J., concurring in the 

judgment). If a determination that a particular channel has an OHWM is so broad and 

subjective, how can a farmer or rancher know whether a particular low area across his 

land is simply land or instead is a regulated ephemeral tributary? (p. 8)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Goehring Vineyards, Inc. (Doc. #19464)

10.600 The Proposed Rule categorically asserts jurisdiction broadly over all tributaries with no 

site-specific analysis required. By rule, anything with a bed, bank, and ordinary high 

water mark which may directly or indirectly contribute flow to a jurisdictional water, 

without regard to its impact on downstream waters. Further, again by rule, wetlands, 

lakes, and ponds are tributaries even if they lack beds, banks, or ordinary high water 

marks. (79 Fed. Reg. 22201 (April 21, 2014.) The Agencies’ decision to use the presence 

of an ordinary high water mark as one of the factors for considering a water to be a 

tributary under Kennedy’s standard is directly counter to Kennedy’s clear directive. 

Kennedy clearly stated:

“As noted earlier, the Corps deems a 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,” § 328.3(e). This standard 

presumably provides a rough measure of the volume and regularity of flow. 

Assuming it is subject to reasonably consistent application, it 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 water 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. 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.” (Rapanos, supra, 

at 780-782, citations omitted.) 

As evidenced in the above language, Kennedy determined that the inconsistent 

application of the ordinary high-water mark precludes its use as a factor for determining 

if a waterbody meets the definition of a tributary. (Ibid.) By disregarding the directive, 

the Proposed Rule’s reliance on the ordinary high-water mark is not a reasonable measure 

of whether a tributary processes a significant nexus with a traditional navigable water. (p. 

10-11)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

560

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Clearwater Watershed District, et. al. (Doc. #9560.1)

10.601 Wetland s that are connected hydrologically to a stream with perennial flow into 

navigable water certainly meet the hydrological connection test authored by Justice 

Scalia under Rapanos and likely also meet the significant nexus test authored by Justice 

Kennedy. We are concerned that the proposed rule attempts to define wetlands as 

jurisdictional tributaries if the wetland, when at full retention capacity, overflows across 

upland during a rainfall event, thereby establishing a hydrological connection to a 

perennially flowing tributary. All wetlands, when at full retention capacity within their 

basin, flow overtop upland when additional rainfall occurs. That connection, in and of 

itself, does not make the wetland jurisdictional as a tributary to other tributaries or 

covered waters.

The agencies must evaluate the connectivity and nexus of waters and wetlands under 

"normal circumstances." For example, when delineating a wetland, evidence gathered 

under conditions that are too wet or too dry are typically not considered as credible 

indicators for identifying whether the land is classified as "wetland." Similarly, using 

hydrological connections between wetlands during extreme rainfall events and tributaries 

does not create a credible indicator that the wetland has a jurisdictional connection that 

significantly impacts the integrity of navigable waters.

We believe that the agencies' attempt to describe some wetlands as tributaries is an 

attempt to bring more wetlands into jurisdiction as "navigable waters" without proper 

scientific or legal justification. If a wetland's outlet is the justification for a finding of 

"significant nexus" under Justice Kennedy's test in Rapanos, then the wetland is 

jurisdictional as an "adjacent wetland." Claiming jurisdiction over the wetland as a 

tributary only further confuses the regulated community and prevents clear, bright-line 

rules that can be understood in the field. (p. 11)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The rule does not define tributary to 

include wetlands. Preamble, IV.

North Dakota EmPower Commission (Doc. #13604)

10.602 EmPowerND is concerned with this new definition for several reasons. In conducting 

agricultural, mining, or other land disturbance activities, one encounters many hydrologic 

and ephemeral connections. This power grab disregards the holding in both the SWANCC

and Rapanos decisions where the Court found that the CWA does not support an 

expansive meaning of the term “waters of the United Sates” to include ephemeral 

channels and drains as tributaries. In Rapanos, the Court expressly held that including 

“ephemeral streams, wet meadows, storm sewers...within the meaning of ‘waters of the 

U.S.’ has stretched the term beyond parody.”1126 In fact, ephemeral streams are typically 

dry channels or erosional features that are small and carry water only in response to 

precipitation, and lack more than an attenuated connection to traditionally navigable 

 

1126 Rapanos at 732.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

561

waters. The EPA and Corps cannot simply create a regulatory presumption of jurisdiction 

over ephemeral waters and impose jurisdiction under the CWA contrary to the Court’s 

decisions. (p. 4)

Agency Response: The rule is consistent with the statute and the caselaw and the 

science. Preamble, III and IV. Technical Support Document, I.A. and C., II and 

VII.

Murray Energy Corporation (Doc. #13954)

10.603 ...The Agencies’ blanket assertion of jurisdiction over all tributaries contravenes Justice 

Kennedy’s significant nexus test, which was designed to rule out minor tributaries 

involving insignificant connections to TNWs. Rapanos at 781-782 (“This standard 

presumably provides a rough measure of the volume and regularity of flow. Assuming it 

is subject to reasonably consistent application...it 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.”). Thus, Justice Kennedy’s significant 

nexus test does not support the sort of broad and unlimited assertion of jurisdiction over 

all tributaries without regard to the strength of their connection to downstream waters.

Yet the Proposed Rule, with its revised definition of “tributary” seeks to do just that, 

sweeping all tributaries, including most ditches, into the definition of waters of the U.S., 

without regard to flow, duration of flow, proximity to or effect upon traditional navigable 

waters... (p. 10)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Southern Company (Doc. #14134)

10.604 Kennedy opposed the regulation of drains, ditches, and streams remote from TNWs, even 

if they were connected hydrologically. Yet the agencies’ position directly contradicts 

Justice Kennedy’s very own words and is an entirely inaccurate reading of his opinion. 

The fact that Kennedy concluded that not all tributaries are jurisdictional should not be 

lost, nor should the fact that the government’s proposal presumptively concludes 

otherwise. Kennedy rejected the “any hydrologic connection” test, which puts the 

government’s proposal directly at odds with it. Simply put, nowhere in Kennedy’s 

opinion is their support for the government’s sweeping and unbounded claims of 

jurisdiction even in the absence of hydrological connection. (p. 26)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

10.605 Unfortunately and unwisely, the agencies ground these expansions in untested and 

unstable legal interpretations. This is particularly reckless in the context of the per se 

jurisdictional expansions over “tributaries” and “adjacent waters,” not to mention in 

direct conflict with even Justice Kennedy’s opinion. The agencies must exercise caution 

and restraint when making waters jurisdictional by rule. (p. 29)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

562

Association of Electric Companies of Texas, Inc. (Doc. #16433)

10.606 As the plurality of the U.S. Supreme Court explained in Rapanos, the CWA gives federal 

and delegated state authorities regulatory jurisdiction over discharges of pollutants into 

"navigable waters," which the Act defines as "waters of the United States [WOTUS], 

including the territorial seas.1127 Soon after the initial enactment of the CWA in 1972, the 

Corps adopted the traditional jurisdictional definition of "navigable waters" (and, thus, 

WOTUS) to mean "navigable in fact," although federal agencies have deliberately since 

sought time and time again to expand their jurisdiction by continually expanding their 

interpretation of WOTUS.1128

However, in Rapanos, the plurality of the U.S. Supreme Court noted that even though the 

meaning of "navigable waters" (and, thus, WOTUS) is broader than the traditional 

understanding of that term, the plurality emphasized that "navigable is not devoid of 

significance."1129 The CWA only confers jurisdiction over "relatively permanent, 

standing, or flowing bodies of water”1130 and only if there is "at a bare minimum, the 

ordinary presence of water.”1131 EPA and the Corps downplay the plurality's clear 

emphasis that the agencies only have CWA jurisdiction over features where there is a 

relatively permanent or ordinary presence water by suggesting that the plurality's 

reference to "seasonal rivers" that are jurisdictional even though they are dry some 

months of the year justifies the reach of the Proposed Rule to dry land.1132 However, 

EPA's and the Corp's reliance on "seasonal rivers" that are jurisdictional takes the 

plurality' s footnote out of context. When read in context, the plurality stated that: 

“By describing "waters" as "relatively permanent," we do not necessarily exclude 

streams, rivers, or lakes that might dry up in extraordinary circumstances, such as 

drought. We also do not necessarily exclude seasonal rivers, which contain 

continuous flow during some months of the year but no flow during dry months--

such as the 290-day, continuously flowing stream postulated by Justice Stevens' 

dissent. . . . It suffices for present purposes that channels containing permanent 

flow are plainly within the definition, and that the dissent' s "intermittent" and 

"ephemeral" streams-- that is, streams whose flow is "[c]oming and going at 

intervals...[b]roken, fitful,"...or "existing only, or no longer than, a day...–are

not.”

1133

Thus, the U.S. Supreme Court plurality in Rapanos clearly stated that "seasonal" rivers 

that contain some flow during some months of the year are subject to CWA regulation, 

but also stated that intermittent and ephemeral streams are not subject to CWA 

regulation. The plurality in Rapanos summarized as follows :

 

1127 Rapanos., 547 U.S. at 722-23, citing in part 33 U.S.C. § 1311(a) and 33 U.S.C. § 1362(7) and (12).

1128 Jd., at 723-26.

1129 ld., at 731, citing SWANCC, 531 U.S. at 172 and 2 12; United States v. Riverside Bayview Homes, Inc., 474 U.S. 

121. At 133 (1985 ).

1130 Id., at 733; see also id. at 734 (the CWA "confers jurisdiction only over relatively permanent bodies of water." 

(emphasis in the Rapanos plurality opinion)).

1131 Id., at 734.

1132 79 Fed.Reg , 22252, citing Rapanos, 547 U.S. at 732, n. 5.

1133 Rapanos, 547 U.S. at 732, n. 5.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

563

In sum, on its only plausible interpretation, the phrase "the waters of the United 

States" includes only those relatively permanent, standing or continuously 

flowing bodies of water "forming geographic features" that are described in 

ordinary parlance as "streams[.]...oceans, rivers, [and] lakes."...The phrase does 

not include channels through which water flows intermittently or ephemerally, or 

channels that periodically provide drainage for rainfall.1134

Further, only wetlands with a continuous surface connection to bodies that are WOTUS 

in their own right are WOTUS; wetlands with only an intermittent, physically remote 

hydrologic connection to WOTUS lack the necessary connection to be WOTUS.1135

For the same reasons that the "Land is Waters" approach to federal CWA jurisdiction, as 

termed and described in Rapanos, was vacated, the Proposed Rule is beyond the legal 

authority of EPA and the Corps because the Proposed Rule would regulate land and water 

features without regard to whether there is a relatively permanent source of water.1136 

Thus, the Proposed Rule's new definitions of "tributary", "neighboring," "riparian," and 

"floodplain" when read together would extend EPA's and the Corps' CWA regulatory 

authority beyond the bounds the U.S. Supreme Court has set. The significant nexus test in 

the Proposed Rule would extend even further beyond those bounds. (p. 10-11)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

Chesapeake Bay Foundation (Doc. #14620)

10.607 Recognizing the Rapanos decision's importance to the health of the Chesapeake Bay and 

its tributaries, CBF submitted an amicus curiae brief in the Rapanos case supporting the 

U.S. Army Corps of Engineers' (Corps) jurisdiction over non-tidal wetlands and 

headwater streams. CBF explained that without CWA jurisdiction over non-navigable 

tributaries and adjacent wetlands, the Bay states could not achieve the stricter water 

quality standards and waste load allocations necessary to restore the water quality of the 

Chesapeake Bay. This remains true today and is even more pressing in light of the 

upcoming 2017 and 2025 benchmark deadlines for the Chesapeake Bay TMDL for 

sediment, nitrogen, and phosphorous. (p. 2-3)

Agency Response: The agencies agree that the CWA protects non-navigable 

territories and their adjacent wetlands.

National Federation of Independent Business (Doc. #8319)

10.608 The Proposed Regulation provides that any "natural, man-altered, or man-made water 

body" with an ordinary high water mark will be considered a tributary, and therein 

requires the Agencies to assert jurisdiction over practically any land over which water 

occasionally flows by applying either the 'continuous surface connection" or "nexus" 

 

1134 Id., at 739, citing Webster's Second 2882 and Chevron U.S.A. Inc. v. NRDC. 467 U.S. 837,843 (1984).

1135 Id., at 742, citing SWANCC. 531 U.S. at 167.

1136 Id., at 734. The plurality of the U.S. Supreme Court stated that "In applying the definition [of WOTUS] to 

"ephemeral streams," ... man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has 

stretched the term” waters of the United States" beyond parody. The plain language of the statute simply does not 

authorize this "Land Is Waters" approach to federal jurisdiction." 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

564

tests. But, both Rapanos tests such an expansive interpretation of CWA jurisdiction. 

Rapanos, 547 U.S. at 731-32. Justice Kennedy's "significant nexus test" was not intended 

to apply beyond wetlands to tributaries. And the plurality's "continuous surface 

connection" test was intended to strictly limit CWA jurisdiction over tributaries, and 

would not justify assertions of jurisdiction over "ditches, channels and conduits." Id. at 

737-39. (p. 6)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

National Waterways Conference (Doc. #12979)

10.609 The Proposed Rule classifies tributaries as jurisdictional by rule and, for the first time, 

defines the term. The agencies’ conclusion that all tributaries have a significant nexus to 

jurisdictional waters without any case-specific review to identify factors of significance 

exceeds the intended limits of Rapanos. Thus both the proposed assertion of jurisdiction 

over all tributaries without any analysis, as well as the definition of the term “tributary,” 

are excessively broad.

“Tributary” is defined in the Proposed Rule as “a water physically characterized by the 

presence of a bed and banks and ordinary high water mark [(“OHWM”)]...which 

contributes flow, either directly or through another [jurisdictional water],” and, 

additionally, “wetlands, lakes, and ponds are tributaries (even if they lack a bed and 

banks or ordinary high water mark) if they contribute flow.”1137 While a bed, banks and 

OHWM can be easily identified in some locations, in others those features are not 

evident, especially an OHWM. Despite that difficulty, the proposed rule would deem any 

area with those features to be jurisdictional. Realistically, that has the potential to require 

examination of miles of upstream tributary features both at the project site and between 

there and a traditionally navigable waterway. The applicant may not even have access to 

the entire area due to legal or physical constraints.

The agencies themselves do not yet fully understand the potential reach associated with 

extending jurisdiction based on these features. In August 2014, well into the comment 

period for this rulemaking, the Corps released two new documents pertaining to OHWM 

determinations, one of which readily acknowledges a “need for nationally consistent and 

defensible regulatory practices.”1138 That can only mean that the Corps’ own experts in 

this area would concede that today’s practices have not proven to be nationally consistent 

and defensible. In fact, the Corps has produced an entire report with the stated objective 

of determining “the most appropriate factors to include in a national OHWM 

classification.”1139 As the factors to be used in identifying OHWM have yet to be 

 

1137 79 Fed. Reg. at 22,263. 

1138 Matthew K. Mersel, Lindsey E. Lefebvre, and Robert W. Lichvar, U.S. Army Engineer Research and 

Development Center (ERDC), A Review of Land and Stream Classifications in Support of Developing a National 

Ordinary High Water Mark Classification, at 1-2 (August 2014) (hereinafter “OHWM Classification Review”); see 

also Matthew K. Mersel and Robert W. Lichvar, U.S. Army Engineer Research and Development Center (ERDC), 

A Guide to Ordinary High Water Mark (OHWM) Delineation for Non-Perennial Streams in the Western Mountains, 

Valley, and Coast Region of the United States (August 2014).

1139 OHWM Classification Review, supra note 36, at 3.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

565

determined, the agencies may not credibly claim that the proposed rule provides 

clarification or that is does not expand jurisdiction.

The definition contains no reference to the volume or frequency of flow, which would 

seem an important consideration in determining whether an area constitutes a “water” or 

not. That creates additional uncertainty and potential for jurisdictional over-reaching. The 

definition thus could encompass impermanent waters that lack consistent flow, clearly 

deviating from the standard articulated by Justice Scalia in the Rapanos plurality 

opinion1140 and raising serious problems under the “significant nexus” test. (p. 9-10)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The Corps has a longstanding definition

of ordinary high water mark and the rule is not being changed (it is being 

incorporated into EPA's definition of "waters of the United States." The existence 

of practical implementation guidance provides additional clarity.

Southeastern Legal Foundation, Inc. (Doc. #16592)

10.610 The definition of tributary impermissibly expands federal jurisdiction. In defining 

"tributary" in the Proposed Rule, the Agencies once again disregarded Supreme Court 

instruction. In Rapanos, Justice Kennedy suggested that some tributaries may be 

jurisdictional. "Through regulations..., the Corps may choose to identify categories of 

tributaries that, due to their volume of flow (either annually or on average), their 

proximity to navigable waters, or other relevant considerations, are significant enough ... 

.'1141 If only some categories of tributaries are "significant enough," that implies that 

some categories of tributaries are not "significant enough" to support jurisdiction either 

for themselves or adjacent wetlands. Based on this language, the Proposed Rule's 

inclusion of all tributaries as per se jurisdictional is mistaken. Looking at the Corps' 

"existing standard for tributaries"1142 (which was less expansive than the definition of 

tributary in the Proposed Rule), Justice Kennedy held that "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 water volumes toward it -

precludes its adoption as the determinative measure...''1143

Despite Justice Kennedy clarifying that only some tributaries should qualify as 

jurisdictional, the Proposed Rule determines that all tributaries are per se jurisdictional. 

Despite Justice Kennedy determining that the Corps' tributary standard at the time could 

not be the determinative standard, the Proposed Rule defines tributaries to be more 

encompassing than the Corps' Rapanos standard. One reason the definition is so broad is 

that it contains no metrics for volume, duration or frequency of flow. All we know is that 

a tributary must "contribute flow," an undefined phrase, to Traditional Waters at some 

point which can be a far distance from the tributary. With no meaningful criteria, almost 

 

1140 547 U.S. at 739 (finding that the agencies’ authority should extend only to “relatively permanent, standing or 

continuously flowing bodies of water” connected to traditional navigable waters.).

1141 Rapanos, 547 U.S. at 780-81. 

1142 A tributary "feeds into a traditional navigable water (or a tributary thereof) and possess an ordinary high-water 

mark." Id. at 781. 

1143 Id.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

566

any water could qualify as a tributary and therefore as a WOTUS. This cannot be the 

standard; therefore, the Proposed Rule must be withdrawn. (p. 20-21)

Agency Response: The rule is narrower in scope than the existing regulation and 

the rule is consistent with the statute and the caselaw. Technical Support 

Document, I.A. B. and C.

Coalition of Alabama Waterways (Doc. #15101)

10.611 The agencies assert jurisdiction too broadly over tributaries. The Proposed Rule classifies 

tributaries as jurisdictional by rule and, for the first time, defines the term. The agencies’ 

conclusion that all tributaries have a significant nexus to jurisdictional waters without any 

case-specific review to identify factors of significance exceeds the intended limits of 

Rapanos. Thus both the proposed assertion of jurisdiction over all tributaries without any 

analysis, as well as the definition of the term “tributary,” are excessively broad. 

“Tributary” is defined in the Proposed Rule as “a water physically characterized by the 

presence of a bed and banks and ordinary high water mark [(“OHWM”)]...which 

contributes flow, either directly or through another [jurisdictional water],” and, 

additionally, “wetlands, lakes, and ponds are tributaries (even if they lack a bed and 

banks or ordinary high water mark) if they contribute flow.”1144 While a bed, banks and 

OHWM can be easily identified in some locations, in others those features are not 

evident, especially an OHWM. Despite that difficulty, the proposed rule would deem any 

area with those features to be jurisdictional. Realistically, that has the potential to require 

examination of miles of upstream tributary features both at the project site and between 

there and a traditionally navigable waterway. The applicant may not even have access to 

the entire area due to legal or physical constraints. 

The agencies themselves do not yet fully understand the potential reach associated with 

extending jurisdiction based on these features. In August 2014, well into the comment 

period for this rulemaking, the Corps released two new documents pertaining to OHWM 

determinations, one of which readily acknowledges a “need for nationally consistent and 

defensible regulatory practices.”1145 That can only mean that the Corps’ own experts in 

this area would concede that today’s practices have not proven to be nationally consistent 

and defensible. In fact, the corps has produced an entire report with the stated objective 

of determining “the most appropriate factors to include in a national OHWN 

classification.”1146 As the factors to be used in identifying OHWM have yet to be 

determined, the agencies may not credibly claim that the proposed rule provides 

clarification or that it does not expand jurisdiction. 

 

1144 79 Fed. Reg. at 22,263

1145 Matthew K. Mersel, Lindsey E. Lefebvre, and Robert W. Lichvar, U.S. Army Engineer Research and 

Development Center (ERDC), A Review of Land and Stream Classifications in Support of Developing a National 

Ordinary High Water Mark Classification, at 1-2 (August 2014) (hereinafter “OHWM Classification Review”); see 

also Matthew K. Mersel and Robert W. Lichvar, U.S. Army Engineer Research and Development Center (ERDC), 

A Guide to Ordinary High Water Mark (OHWM) Delineation for Non-Perennial Streams in the Western Mountains, 

Valley, and Coast Region of the United States (August 2014).

1146 OHWM Classification Review, supra note 36, at 3.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

567

The definition contains no reference to the volume or frequency of flow, which would 

seem an important consideration in determining whether an area constitutes a “water” or 

not. That creates additional uncertainty and potential for jurisdictional over-reaching. The 

definition thus could encompass impermanent waters that lack consistent flow, clearly 

deviating from the standard articulated by Justice Scalia in the Rapanos plurality 

opinion1147 and raising serious problems under the “significant nexus” test. 

The inclusion of ditches constitutes an impermissible expansion of jurisdiction. Although 

the Proposed Rule would exclude two types of ditches from CWA jurisdiction1148 ditches 

that do not meet the criteria for exclusion could be considered waters of the United 

States. The proposed definition of “tributary” could be interpreted to include man-made 

waters with artificial features, such as drainage ditches or artificial ponds. Also, ditches 

with perennial flow are not covered by the exemption, but it is not clear what the 

agencies believe is meant by “perennial flow.” 

The agencies seem to suggest that the exclusions from jurisdiction in the Proposed Rule 

show restraint. However, the narrowness of the exclusions only serves to demonstrate 

how broadly the Proposed Rule applies. This is especially apparent with respect to the 

two exemptions for ditches. The agencies exclude from jurisdiction those ditches that 

“are excavated wholly in uplands, drain only uplands, and have less than perennial flow,”

and those that “do not contribute flow, either directly or through another water,” to 

various other categories of jurisdictional waters.1149 Those exclusions are categorical, but 

the categories are tiny. Water flows downhill; the water in an upland ditch is no 

exception. Further, even if the ditch drains to a feature that generally contains water in an 

upland area, such that it does not typically affect downstream waters, the agencies’ “fill 

and spill” theory1150 means jurisdiction can be found on the basis of periodic overflow. 

How many ditches have the agencies identified that never, under any circumstances, 

contribute any amount of flow to downstream waters or wetlands?

A reasonable reading of the Proposed Rule would lead to the conclusion that the very

drainage ditches considered in Rapanos—the same ones, according to the Court, that the 

agencies improperly brought within CWA jurisdiction—are jurisdictional. However,

Justice Kennedy indicated that a ditch ought not to be jurisdictional where it is “located

many miles from any navigable-in-fact water and carry only insubstantial flow towards

it.”1151 (p. 10-12)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The Corps has a longstanding definition 

of ordinary high water mark and the rule is not being changed (it is being 

incorporated into EPA's definition of "waters of the United States." The existence 

of practical implementation guidance provides additional clarity.

 

1147 547 U.S. at 739 (finding that the agencies’ authority should extend only to “relatively permanent, standing or 

continuously flowing bodies of water” connected to traditional navigable waters.).

1148 79 Fed. Reg. at 22,263

1149Id.

1150 Id. at 22,208.

1151 Rapanos, 547 U.S. at 786.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

568

10.8. SUPPLEMENTAL COMMENTS ON LEGAL ANALYSIS

Agency Summary Response

For the reasons articulated in the Preamble to the rule, the Technical Support Document, the 

Science Report, and the administrative record for the rule, the agencies conclude that the rule is 

consistent with the Clean Water Act, the Supreme Court decisions, and the Constitution.

Specific Comments

Eric W. Nagle (Doc. #0009.1)

10.612 EPA’s proposed definition of “waters of the United States” is unduly narrow, because it 

rests on a fundamental misunderstanding of the constitutional authority upon which 

Congress relied when it enacted the Clean Water Act (CWA). The proposed definition 

relies exclusively on Commerce Clause authority, making the “interstate or foreign 

commerce” nexus the key factor in determining whether waters fall within CWA 

jurisdiction. This is simply wrong.

While the Commerce Clause is one constitutional basis for CWA jurisdiction, it is by no 

means the only basis. Nothing in the text of the CWA or in the Act’s legislative history 

suggests that Congress relied solely on the Commerce Clause. To the contrary, when 

Congress enacted the 1972 FWPCA amendments, the Conference Committee stated that 

“[t]he conferees fully intend that the term ‘navigable waters’ be given the broadest 

possible constitutional interpretation unencumbered by agency determinations which 

have been made or may be made for administrative purposes.” S. Conf. Rep. No. 92-

1236, 92d Cong., 2d Sess., 144, reprinted in 1972 U.S. Code Cong. & Admin. News at 

3822 (emphasis added). When Congress amended the CWA in 1977, it chose to retain the 

“comprehensive jurisdiction over the Nation’s waters” exercised in the 1972 Act. United 

States v. Riverside Bayview Homes, 474 U.S. 121, 137 (1985) (quoting Sen. Baker).

Thus, Congress clearly intended that the definition of “waters of the United States” 

should draw upon all sources of federal authority under the Constitution, and not just the 

Commerce Clause. Reading the CWA in this light is consistent with the established rule 

of federal constitutional law that “[i]n determining the reach of an exertion of legislative 

power, it is customary to read various granted powers together.” Heart of Atlanta Motel 

v. United States, 379 U.S. 241, 280 (1964) (Douglas, J., concurring). See also Federal 

Power Comm’n v. Oregon, 349 U.S. 435, 442-43 (1955) (under Federal Power Act, 

federal licensing authority over water resource projects rests on Commerce Clause where 

navigable waters are involved, and on Property Clause where federal lands are involved).

(p. 1 – 2)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

M. Young (Doc. #1430)

10.613 Clearly even Justice Kennedy statement of requiring a need for establishing on a 

case‐by‐case basis the “significant nexus” (which I have to assume is in order to exercise 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

569

the much abused general welfare clause) has been ignored by the Environmental 

Protection Agency (EPA) and the Administration in their efforts to trample the 9th 

Amendment of the U.S. Constitution regarding rights reserved by the citizens and the 

10th Amendment of the U.S. Constitution regarding the rights of the States.

Chief Justice Roberts and Justices Scalia, Thomas and Alito document compelling case 

law precedent that the COE and EPA position is flawed and cannot be allowed to stand.

(p. 5)

Agency Response: The rule is consistent with decisions of the Supreme Court and 

the Constitution. Technical Support Document, I.C. 

New York State Attorney General (Doc. #10940)

10.614 Third, by clarifying the scope of "waters of the United States," the proposed rule would 

promote predictability and consistency in the application of the law, and in turn help clear 

up a confusing body of case law that has emerged. Since the Supreme Court's plurality 

decision in Rapanos v. United States, 547 U.S. 715 (2006), a complex and confusing split 

has developed among the federal courts regarding which waters are "waters of the United 

States" and therefore within the Act's jurisdiction. The federal circuits have embraced at 

least three distinct approaches in instances of uncertain CWA jurisdiction, with some 

courts adopting Justice Kennedy's significant nexus test, some adopting the plurality's 

test, and some tending to defer to the agencies' fact-based determinations. Many courts 

have actively avoided ruling on the controlling law, highlighting the need for Agency

clarification. The confusion and disagreement in the courts have produced inconsistent 

outcomes and contribute to the ongoing uncertainty regarding the Act's application. The 

proposed rule's clear categories of waters subject to the Act would alleviate much of the 

jurisdictional uncertainty and allow for more efficient administration of the Act. The 

rule's clarity would be of benefit to the states because it would ease some of the 

administrative burden of having to make many fact-based determinations employing 

uncertain tests. In this regard, in the rulemaking the agencies have requested comments as 

to how a final rule could ease that burden further. (p. 2 – 3)

Agency Response: The rule provides for increased clarity and certainty. 

Preamble, II and IV. The rule is consistent with caselaw. Technical Support 

Document, I.C. 

Office of the Board Attorney, Board of Supervisors Jackson County, Mississippi (Doc. #12262)

10.615 On closer inspection, the proposed rule looks very similar to what the federal government 

argued, and lost, in Rapanos. In its brief, the government argued that "the connection 

between traditional navigable waters and their tributaries is significant in practical terms, 

because pollution of the tributary has the potential to degrade the quality of the traditional

navigable waters downstream." Brief of the United States at 15, Rapanos v. United 

States, 547 U.S. 715 (2006). The federal government rejected the notion "that some 

tributaries may have such an attenuated connection to traditional navigable waters that 

federal protection of those tributaries would be unwarranted." Id.

The Supreme Court, and Justice Kennedy in particular, disagreed. Justice Kennedy

rejected many of the assertions underpinning the rule, holding that one cannot 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

570

definitively state that a wetland has a significant nexus solely because it is adjacent to an 

ordinary high-watermark tributary:

[T]he Corps deems a 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 .. . . 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 water 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. 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."

Rapanos, 547 U.S. at 805-806 (emphasis added). Yet, in its proposed rule, the EPA 

defined tributaries as "water physically characterized by the presence of a bed and banks 

and ordinary high water mark" and concluded that all adjacent waters are per se 

jurisdictional because of a "significant nexus" finding. Although Justice Kennedy's 

opinion recognized that the Corps could choose to identify and protect tributaries that 

"are likely, in the majority of cases" to have a significant nexus to traditionally navigable 

water, it rejected the idea that the CWA protects every discernible water that contributes 

flow directly, or indirectly, to a traditionally navigable water, no matter how remote and 

insubstantial. Id. at 781. (p. 5)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is not 

based on the “any connection theory” but is instead based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for specified waters and to provide that certain other waters may be jurisdictional 

where a case-specific determination has found a significant nexus. Preamble, III, 

and Technical Support Document, I.B, I.C. and II.

Duke Energy (Doc. #13029)

10.616 [T]he proposed rule applies Justice Kennedy’s “significant nexus” standard incorrectly in 

several ways. 

- In his concurring opinion, Justice Kennedy adopted the language for the “significant 

nexus” test from the Riverside Bayview Homes case, where the Court upheld the Corps’ 

jurisdiction over wetlands abutting on navigable-in-fact waterways. Since this standard 

was applied to only wetlands in Justice Kennedy’s opinion, it cannot be extended and 

applied to all other non-wetlands as the proposed rule attempts to do.

-The proposed rule does not provide any metrics or criteria for determining significance 

and instead identifies factors that could be evidence of chemical, physical or biological 

activity. However, the agencies do not provide any information on when the presence of 

these factors rise to the level of significance which implicitly suggests that the mere 

presence of any of these factors is sufficient to satisfy the significant nexus standard. 

Asserting jurisdiction based on the presence of connections is reminiscent of the “any 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

571

hydrological connection” standard that was rejected by five Justices in Rapanos, 

including Justice Kennedy.

-The concept of aggregating all “similarly situated” waters within the same watershed 

conflicts with Justice Kennedy’s “significant nexus” standard, which called for case-bycase determinations. This concept also allows for aggregation of features that are many 

miles apart from each other and are not “similarly situated” with respect to proximity to 

navigable waters, regularity or duration of flow. This completely ignores the quantity and 

frequency of flow that was central to Justice Kennedy’s significant nexus analysis.

-The proposed rule’s interpretation that a significant nexus exists whenever impacts are 

“more than speculative or insubstantial”, ignores the traditional meaning of the word 

significant as “important” or “having or likely to have a major effect”. As summarized 

above, there are numerous legal concerns with the proposed rule that seem to conflict 

with the legal precedents set by the Supreme Court. (p. 16-17)

Agency Response: The rule is consistent with decisions of the Supreme Court. 

Technical Support Document, I.C. 

Todd Wilkinson (Doc. #13443)

10.617 The Agencies proposed approach has been rejected by Congress and the Courts. The U.S.

Supreme Court in SWANCC and Rapanos significantly limited the jurisdictional 

boundaries of the Clean Water Act. Congress has refused to expand the Clean Water Act 

by removing the word "navigable." The proposal will do just that by advancing an overly 

broad interpretation of Justice Anthony Kennedy 'significant nexus text. The proposed 

WOTUS rule expands this list in a manner that would allow the Agency’s jurisdiction 

over all types of waters. The Clean Water Act cannot be read to confer jurisdiction over 

physically isolated wholly intrastate waters. (p. 2)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Florida Power & Light Company (Doc. #13615)

10.618 The proposed rule's standard collapses this continuum by ignoring the plain meaning of 

the word "significant."Additionally, there is no scientific articulation for the agencies' 

proposed standard. Recognizing that the term "significant nexus" is not a scientific term, 

but a legal term, the agencies should revise the proposed standard so that effects are 

measurable and must be "important" or "substantial" to satisfy Justice Kennedy's intended

significant nexus standard to establish jurisdiction. We recommend that science-based 

metrics apply to such a jurisdictional determination. For example, the presence of hydric 

soils and hydrophytic vegetation will help ensure that the relationship is more than 

"speculative". (p. 3)

Agency Response: The rule and the agencies' significant nexus determinations are 

consistent with the statute and caselaw. Preamble, III; Technical Support 

Document, I.A and C, II.

Florida Stormwater Association (Doc. #14613)

10.619 Indeed, as drafted, the Proposed Regulations would exceed Congress’s authority under 

the Commerce Clause and would contravene the U.S. Supreme Court’s decision in 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

572

Rapanos. Congress intended for Clean Water Act jurisdiction to be tied to its ability to 

regulate channels of interstate commerce like navigable rivers, lakes and canals. 

SWANCC v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001). According to the Court, 

the word “navigable” should have some meaning. In Rapanos, the Court thus rejected the 

“any hydrological connection” theory, reasoning that the theory “would stretch the outer 

limits of Congress’s commerce power.” Rapanos, 547 U.S. at 738. But by now extending 

jurisdiction to isolated wetlands and ponds, ephemeral drainage features, ditches, and 

other waters that have no navigable features and lack connections to truly navigable 

waters, the Proposed Regulations would exceed Congress’s authority under the 

Commerce Clause. The Proposed Regulations also incorrectly conclude that Justice 

Kennedy’s decision in Rapanos is controlling. The Proposed Regulations then stretch the 

“significant nexus” test in Justice Kennedy’s opinion to waters other than wetlands – to 

“tributaries,” “adjacent waters,” and “other waters.” But by its own terms, Justice 

Kennedy’s opinion applies only to wetlands. And, even for wetlands, because Justice 

Kennedy’s opinion alone cannot be the narrowest, it alone cannot control. See Marks v. 

United States, 430 U.S. 188, 193 (1977). (p. 6)

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

The rule is consistent with the statute, Supreme Court decisions, and the 

Constitution. Technical Support Document, I.A., B., and C. 

Continental Resources, Inc. (Doc. #14655)

10.620 A number of additional aspects of the proposed definition of "tributary" are also 

troublesome. First, there is no requirement that a tributary (or ditch) have a bed, bank, or 

ordinary high water mark ("OHWM"). The definition includes the entire length of the 

tributary including areas upstream of a natural or man-made break (e.g., bridges, culverts, 

pipes, dams, debris, or underground flow). Second, the definition of tributary no longer 

requires a certain volume of flow, frequency of flow, or notion of proximity to traditional 

navigable water. Third, all tributaries are per se jurisdictional if they contribute directly 

or indirectly to flow. See generally 79 Fed. Reg. at 22,262 (Proposed 33 C.F.R. § 

328.3(a)(5)). The agencies' legal and scientific justifications for this expanded definition 

of tributaries are utterly insufficient. There is every reason to believe the majority of the 

justices in Rapanos would have struck down this definition of "tributary" in the Proposed 

Rule based on its lack of any statutory or judicial support and the agencies' not-so-subtle 

effort to expand markedly the limited extent of their jurisdictional reach. 

The agencies' assertion of jurisdiction by rule over all tributaries is a blatant misreading 

of the CWA and Rapanos. First, in Rapanos, Justice Kennedy never applied a significant 

nexus test to tributaries; the agencies admit this but extend the test anyway. 79 Fed. Reg. 

at 22,204, 22,259-60. Second, even assuming Justice Kennedy's significant nexus test 

should apply to all tributaries, the Proposed Rule completely abandons the actual 

application of that test to any tributaries. The agencies claim it is "reasonable and 

appropriate" to review the scientific literature to determine whether to treat tributaries as 

categorically significantly affecting the chemical, physical or biological integrity of 

downstream waters. 79 Fed. Reg. at 22,259. Based on "existing science and the law" the 

agencies adopt a Proposed Rule that assumes all the waters meeting the expanded 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

573

definition of "tributary" must have a significant nexus to the downstream water in 

question. 79 Fed. Reg. at 22,193,22,197,22,259-60. Thus, if the water in question meets 

this new ambiguous definition of tributary, it is automatically considered jurisdictionalno significant nexus showing is required. Justice Kennedy never would have accepted 

this interpretation of the Act; he required a case-by-case significant nexus analysis in 

such circumstances. Alternatively, Justice Kennedy would have required any new 

regulations to address specifically the important hallmarks of a tributary, including: (l) 

volume of flow; (2) whether flow is year round, seasonal, intermittent, or ephemeral; (3) 

remoteness or proximity to navigable water; and (4) important functions performed and 

impact on biological, physical, and chemical properties of jurisdictional water. Rapanos, 

547 U.S. at 780-81. 

The agencies' statement that their new definition and treatment of tributaries complies 

with Justice Kennedy's opinion is plainly mistaken. 79 Fed. Reg. at 22,259. The Proposed 

Rule expands jurisdiction beyond what the majority in Rapanos would allow, ignoring 

Justice Kennedy's concurring opinion and Justice Scalia's plurality opinion. Justice 

Kennedy was critical of the existing regulations because they provided no assurance that 

"tributaries ... due to their volume of flow (either annually or on average), their proximity 

to navigable waters, or other relevant considerations, are significant enough that wetlands 

adjacent to them are likely, in the majority of cases, to perform important functions for an 

aquatic system incorporating navigable waters." Rapanos, 547 U.S. at 781; see also id. at 

786 (noting there must be "substantial evidence supporting [jurisdiction]"). Justice 

Kennedy would never have approved of a rule that categorically assumes jurisdiction 

over all tributaries. Rapanos, 547 U.S. at 781 (dismissive of the regulation of drains, 

ditches, remote streams, and low-flowing, intermittent and ephemeral streams). For that 

reason, Justice Kennedy required that the Corps of Engineers "establish a significant 

nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to 

nonnavigable tributaries" because without this individualized analysis there is likely to be 

"unreasonable applications of the statute." Rapanos, 547 U.S. at 782. The agencies ignore 

these clear directives in Justice Kennedy's opinion and impose an ultra vires application 

ofthe CWA. 

The agencies also ignore Justice Scalia's plurality opinion, which defined a water of the 

United States to "include only relatively permanent, standing or flowing bodies of water": 

the water must be "continuously present, fixed bodies of water, as opposed to ordinarily 

dry channels through which water occasionally or intermittently flows. Even the least 

substantial of the definition's terms, namely, 'streams,' connotes a continuous flow of 

water in a permanent channel. ... None of these terms encompasses transitory puddles or 

ephemeral flows of water." Rapanos, 547 U.S. at 732-33. Given Justice Scalia's emphasis 

on "relatively permanent waters," he would strike any tributary definition that includes 

areas upstream of natural or man-made barriers. Similarly, Justice Scalia's plurality 

opinion was critical of the regulation of natural and man-made ditches, particularly 

roadside and man-made ditches with intermittent or ephemeral flow. Rapanos, 547 U.S. 

at 733-34 & n.5 (warning against asserting jurisdiction over tributaries "whose flow is 

'coming and going at intervals ... broken, fitful"), 738. Because the Proposed Rule's 

treatment of tributaries would not gamer the support of a majority of the Supreme Court 

justices in Rapanos, it exceeds the agencies' CWA authority. (p. 7-8)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

574

Agency Response: The rule is consistent with the statute and the caselaw and the 

science. Preamble, III and IV. Technical Support Document, I.A. and C., II and 

VII.

10.621 In the Proposed Rule, the agencies manifestly change their long-standing interpretation of 

Justice Kennedy's significant nexus test in Rapanos in three fundamental and 

unsupported ways. First, the agencies make a critical wording change in Justice 

Kennedy's test (replacing an "and" with an "or"). Second, the agencies abandon their 

current CWA interpretation that requires a case-by-case analysis to determine if a 

significant nexus exists and instead simply presume that all tributaries and all adjacent 

waters are per se jurisdictional without any individual consideration (or even an 

aggregated consideration). Third, the agencies abandon any notion of "significance" and 

instead assert that any nexus is sufficient. Each of these three assumptions distorts Justice 

Kennedy's significant nexus test rendering it unrecognizable. While both the regulated 

community and the agencies may seek improved clarity regarding when waters are 

governed by the CWA's significant nexus requirement, the Proposed Rule is not the 

answer. The agencies' across-the-board assumption that waters previously receiving a 

significant nexus analysis no longer require one is utterly unsupported by Rapanos, or by 

the law or science cited in the preamble. Each of these flawed interpretations and 

applications of the test is elaborated below.

1. The Proposed Rule improperly restates the significant nexus test replacing "and" 

with "or." 

In the Proposed Rule, the agencies have intentionally re-written Justice Kennedy's 

significant nexus test. The Proposed Rule contorts the significant nexus test, replacing the 

"and" with an "or." Until now, the agencies have always articulated the significant nexus 

test as being met when the subject water "significantly affects the chemical, physical, and

biological integrity of other covered waters more readily understood as navigable." See, 

e.g., 2008 Guidance at 1. In making this simple one word edit, the agencies radically alter 

the meaning of the CWA and the well-established "significant nexus" test articulated by 

Justice Kennedy in Rapanos. 

The statutory objective of the CWA is "to restore and maintain the chemical, physical, 

and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). This CWA language 

was the springboard for Justice Kennedy's concurring opinion, and his opinion reiterates 

that a significant nexus requires the showing of all three types of impacts, not just one. 

Rapanos, 547 U.S. at 759, 779-80. The preamble to the Proposed Rule misstates the test: 

"Justice Kennedy was clear that waters with a significant nexus must significantly affect 

the chemical, physical, or biological integrity of a downstream navigable water[.]" 76 

Fed. Reg. at 22,213 (emphasis added). The Proposed Rule also redefines the "significant 

nexus" test: the subject water only needs to "significantly affect[] the chemical, physical 

or biological integrity" of the reference water. See, e.g., 76 Fed. Reg. at 22,263 (Proposed 

40 C.F.R. § 328.3(c)(7)) (emphasis added). This language deviates from all of the 

agency's prior interpretations (e.g., 2008 Guidance). It establishes a lower threshold for 

finding jurisdiction: the agencies no longer need to demonstrate that a water influences 

all three factors, but only one of the three factors. Contrary to the agencies' flimsy 

explanation, 76 Fed. Reg. at 22,261, the CWA and Justice Kennedy's opinion in Rapanos, 

and the well-accepted rules of statutory construction, the "and" in the significant nexus 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

575

test means "and." All three forms of integrity must be demonstrated for the required 

nexus to be met. The agencies are not at liberty to rewrite the CWA, nor are they 

empowered to mince .. Justice Kennedy's words. (p. 11)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C. The 2008 Guidance was practical 

implementation guidance and not an interpretation of the CWA; to the extent there 

is a change in policy position, the agencies have provided a rationale. Preamble and 

Technical Support Document, I.C.

The Heritage Foundation (Doc. #15055)

10.622 The Proposed Rule is Inconsistent with Justice Kennedy's Concurrence in Rapanos

Both the EPA and Corps have consistently tried to expand their power under the CWA 

and regulate waters not covered under the law. The United States Supreme Court has 

shuck down this overreach twice in just over a decade in SWANCC v. EPA1152 and 

Rapanos v. United States.1153

Instead of developing proposed rules that are well within the law (or even the outer 

bounds of the law), the agencies have developed these relations that go beyond even the 

Kennedy concurrence Rapanos that the agencies rely upon.1154

The Proposed Rule Improperly Expands Upon Justice Kennedy's "Significant Nexus” 

Test

The agencies have greatly exceeded Justice Kennedy's significant nexus test. As outlined 

by Justice Kennedy:

[W]etlands 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." When, in contrast, wetlands' effects on water quality are speculative 

or insubstantial, they fall outside the zone fairly encompassed by the statutory 

term "navigable waters."

1155

The proposed rule would apply the significant nexus test to not just wetlands but to "a 

water, including wetlands."1156 Within the proposed definition of "significant nexus," the 

term "other waters" is also used.1157 It is not clear whether this covers waters that are 

 

1152 Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers et al., 531 U.S. 159 

(2001).

1153 Rapanos v. United States, 547 U.S. 715, 780.

1154 The agencies appear to completely ignore the plurality opinion. By focusing on the Kennedy concurrence in this 

comment, this in no way should suggest that this author does not believe the plurality opinion in Rapanos is 

governing or should have informed the agencies. 

1155 Rapanos v. United States, 547 U.S. 715, 780.

1156 Federal Register, Vol. 79, No. 76 (April 21, 2014), http://www.gpo.gov/fdsys/pkg/FR-2014-04-21/pdf/2014-

07142.pdf (Accessed November 14, 2014).

1157 Federal Register, Vol. 79, No. 76 (April 21, 2014), p. 22189.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

576

defined by the term "water'

1158 or by the definition of “other waters.” Regardless, the 

proposed rule covers waters that are not a part of Justice Kennedy’s significant nexus 

test.1159

Without even an explanation, the proposed rule changes the conjunctive "and" in the 

clause "significantly affect the chemical, physical, and biological integrity" with the 

conjunctive "or."1160 This major change would allow the agencies to just meet one of the 

requirements, not all thee as is expressly stated by Justice Kennedy.

Justice Kennedy's language did not come out of the blue; it comes from the Clean Water 

Act itself.1161 In his concurrence he states, "The 'objective' of the Clean Water Act (Act), 

is 'to restore and maintain the chemical, physical, and biological integrity of the Nation's 

waters."' [Emphasis added].1162 (p. 3 – 4)

Agency Response: The rule is consistent with the statute and the caselaw. 

Technical Support Document, I.A. and C.

American Foundry Society (Doc. #15148)

10.623 In addition, EPA and the Corps claimed that the proposed rule was needed to avoid 

having to evaluate the jurisdiction of individual waters on a case-by-case basis as dictated 

by recent U.S. Supreme Court decisions in U.S. v. Riverside Bayview, Rapanos v. United 

States, and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 

Engineers (SWANCC). EPA and the Corps falsely allege that the proposed rule will 

provide certainty, clarity and predictability to the regulated public regarding what areas 

are designated waters of the U.S. and subject to CWA jurisdiction. In contrast, if there is 

any certainty, it is that EPA and the Corps have expanded jurisdiction beyond the legal 

authority of the CWA. (p. 2 – 3)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

National Alliance of Forest Owners (Doc. #15247)

10.624 The Proposed Rule Improperly Expands Jurisdiction Beyond Just Adjacent 

Wetlands. 

 

1158 Footnote 3 of the proposed rule states: 'The agencies use the tell11 'water' and 'waters' UI the proposed rule in 

categorical reference to rivers, streams, ditches, wetlands, ponds, lakes, playas, and other types of natural or manmade aquatic systems. The agencies use the terms 'waters' and 'water bodies' interchangeably in this preamble. The 

te1~11dso not refer solely to the water contained in these aquatic systems, but to the system as a whole including 

associated chemical, physical, and biological features."

1159 The agencies justify this expansion explaining, “in light of Rapanos and SWANCC, the “significant nexus” 

standard for CWA jurisdiction that Justice Kennedy's opinion applied to adjacent wetlands also can reasonably be 

applied to other waters such as ponds, lakes, and non-adjacent wetlands that may have a significant nexus to a 

traditional navigable water, an interstate water, or the territorial seas. Federal Register, Val. 79, No. 76 (April 21, 

2014), p. 22261. As discussed in the section of my comment regarding adjacent waters, this type of overreach is not 

supported by Justice Kennedy's concurrence. 

1160 Federal Register, Vol. 79, No. 76 (April 21, 2014), p. 22192.

1161 33 U.S.C. §1251 (a).

1162 Rapanos v. United States, 547 U.S. 715, 759 citing 33 U.S.C. §1251 (a).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

577

Under the proposed rule, all waters, not just wetlands, that are “adjacent” to a traditional 

navigable water, interstate water, territorial sea, jurisdictional impoundment, or tributary, 

are jurisdictional.1163 Although the proposed rule carries forward the definition of 

“adjacent” from the existing regulations (i.e., “bordering, contiguous, or neighboring”), it 

contains a new definition for the term “neighboring,” which “includes waters located 

within the riparian area or floodplain of” a traditional navigable water, interstate water, 

territorial sea, jurisdictional impoundment, or tributary.1164 “Neighboring” waters also 

include those “with a shallow subsurface hydrologic connection or a confined surface 

hydrologic connection to such a jurisdictional water.”1165 The proposed rule leaves it to 

the regulators’ “best professional judgment” how to apply these new definitions in 

determining the extent of CWA jurisdiction.1166 Thus, individual regulators have wide 

latitude to determine, e.g., which floodplain1167 to use; how large a given riparian area1168

is; or what it means to have a confined surface hydrologic connection. According to the 

Agencies, “[w]aters, including wetlands, that meet the proposed definition of adjacency, 

including the new proposed definition of neighboring, have a significant nexus to (a)(1) 

through (a)(3) waters, and this proposed rule would include all adjacent waters, including 

wetlands, as ‘waters of the United States’ by rule.”1169

By extending the definition of “waters of the United States” to encompass all adjacent 

waters, not just wetlands, the Agencies have stretched the scope of CWA jurisdiction 

well beyond what the Supreme Court would allow and even beyond existing regulations 

and guidance. None of the relevant Supreme Court decisions addressed, much less 

affirmed, whether CWA jurisdiction extends to adjacent nonnavigable waters that are not 

wetlands. Riverside Bayview, for example, upheld the assertion of CWA jurisdiction over 

wetlands abutting a navigable-in-fact waterway.1170 The Court made it clear in that case 

that it was not addressing “wetlands that are not adjacent to bodies of open water.”1171

Decades later, “Rapanos, like Riverside Bayview, concerned the scope of the Corps’ 

authority to regulate adjacent wetlands.1172 Importantly, “[n]o justice, even in dictum, 

addressed the question of whether all waterbodies with a significant nexus to navigable 

waters are covered by the Act.”1173 And not even the Agencies’ 2008 Rapanos Guidance 

goes so far as to address adjacent non-wetlands. 

 

1163 See 79 Fed. Reg. at 22,263.

1164 Id.

1165 Id.

1166 See id at 22,208.

1167 “Floodplain” is defined as “an area bordering inland or coastal waters that was formed by sediment deposition 

from such water under present climatic conditions and is inundated during periods of moderate to high water flows.” 

The proposed rule does not specify a particular flood interval.

1168 “Riparian area” means “an area bordering a water where surface or subsurface hydrology directly influence the 

ecological processes and plant and animal community structure in that area.” They are “transitional areas between 

aquatic and terrestrial ecosystems that influence the exchange of energy and materials between those ecosystems.”

1169 79 Fed. Reg. at 22,207.

1170 See 474 U.S. at 135.

1171 Id. at 131 n.8.

1172 San Francisco Baykeeper, 481 F.3d at 707.

1173I d.
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578

In addition to improperly extending CWA jurisdiction to adjacent non-wetlands, the 

proposed rule has defined “neighboring,” “riparian area,” and “floodplain” far too 

broadly. This new concept of adjacency runs headlong into both Justice Kennedy’s and 

the plurality’s opinions in Rapanos. Because all waters that are “adjacent” to tributaries 

(as newly defined under the proposed rule) are per se jurisdictional, the proposed rule 

will allow the Agencies to assert jurisdiction over waters that are “adjacent” to “drains, 

ditches, and streams remote from any navigable-in-fact water and carrying only minor 

water-volumes towards it.”1174 Justice Kennedy’s opinion, however, does not leave room 

for such a categorical assertion of jurisdiction even over wetlands adjacent to those types 

of waters. Rather, he explained that a “more specific inquiry” is necessary to determine 

whether wetlands’ “mere adjacency” to nonnavigable tributaries is sufficient to establish 

CWA jurisdiction.1175

The plurality opinion in Rapanos, for its part, found that “only those wetlands with a 

continuous surface connection to bodies that are ‘waters of the United States’ in their 

own right, so that there is no clear demarcation between ‘waters’ and wetlands, are 

‘adjacent to’ such waters and covered by the Act.”1176 The plurality emphasized that 

wetlands with merely an “intermittent, physically remote hydrologic connection to 

‘waters of the United States’ . . . lack the necessary connection to covered waters that we 

described as a ‘significant nexus’ in SWANCC.”1177 Notably, the plurality spoke critically 

about how, despite the holding in SWANCC, “some of the Corps’ district offices have 

concluded that wetlands are ‘adjacent’ to covered waters if they are hydrologically 

connected ‘through directional sheet flow during storm events . . . or if they lie within the 

‘100-year floodplain’ of a body of water—that is, they are connected to the navigable 

water by flooding, on average, once every 100 years.”1178 Despite these criticisms, that is 

exactly what the proposed rule allows by, for example, failing to place any limits on the 

Agencies’ ability to choose what floodplain interval to use when applying the new 

definition of “neighboring.” As a result, waters that are miles away from the nearest 

jurisdictional water can now be deemed jurisdictional simply by an agency employee’s 

selection of the 100-year (or perhaps even the 50-year) floodplain interval as the basis for 

identifying “adjacent” waters. 

Similarly, waters that are currently considered to be isolated (and thus, nonjurisdictional) 

are nevertheless per se jurisdictional so long as a regulator determines that: (i) there is 

some subsurface connection to a traditional navigable water, interstate water, territorial 

sea, jurisdictional impoundment, or tributary; and (ii) the “adjacent” water is within 

“reasonable proximity” of the downstream jurisdictional water.1179 The Agencies’ 

categorical assertion of jurisdiction over such “adjacent” waters based on subsurface 

hydrologic connections is incompatible with the Supreme Court’s rejection of the “any 

hydrologic connection” standard in Rapanos. 

 

1174 Rapanos, 547 U.S. at 781.

1175 Id. at 780, 786.

1176 Id. at 742 (emphasis added).

1177 Id.

1178 Id. at 728.

1179 79 Fed. Reg. at 22,263, 22,207-08.
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579

Not only are the new definitions in the proposed rule overly broad, they are too vague to 

serve the Agencies’ goal of providing clarity through this rulemaking. Individual 

regulators have discretion in determining how to apply the definitions of “floodplain” 

(e.g., which floodplain interval to use1180); how to apply the definition of “riparian area” 

(e.g., whether hydrology “directly influence[s]” ecological processes and plant and 

animal community structures1181); how deep subsurface connections can be; and how 

remote an adjacent water can be located from a jurisdictional water but still be within 

“reasonable proximity” of the jurisdictional water. These ambiguities are bound to result 

in inconsistent application of the rule and will further encourage citizen suit litigation 

against the forest industry. 

The breadth of the adjacency standard is self-evident and troubling. Entire tributary 

(including ditch) systems are now per se jurisdictional under the proposed rule. Such 

systems likely have subsurface and surface hydrologic connections to a variety of water 

features, and their floodplains and riparian areas could cover vast reaches of lands and 

include countless small wetlands, ponds, playas, and other man-made and natural 

waterbodies. All of these features could now be jurisdictional under the proposed rule 

depending how regulators exercise their discretion in applying the new definitions in the 

proposed rule. 

The proposed rule’s new adjacency concept is deeply flawed. The Agencies should 

withdraw the proposed provisions relating to adjacency and carry forward existing 

provisions that extend jurisdiction only to adjacent wetlands. (p. 15-18)

Agency Response: The rule no longer includes a provision defining “neighboring” 

based on a surface or subsurface hydrologic connection or provides that all waters 

within “floodplains,” and “riparian areas” are “adjacent.” Instead, the rule now 

provides specific distance limits for “neighboring” waters. In addition, where the 

definition continues to use the term “floodplain,” it specifies the “100-year” 

floodplain and establishes a 1,500-foot maximum distance for neighboring waters in 

the rule. Preamble, IV. While the plurality questioned the use of the 100 year 

floodplain, the dissent did not, and for purposes of adjacency the agencies have 

established that a water must be located in the 100 year flood plain and within 1500 

foot of the ordinary high water mark. The rule is consistent with the statute, caselaw 

and the Constitution. Technical Support Document, I.A. and C. The rule is based 

on the agencies’ careful examination of the science and the law to make a 

determination of significant nexus for covered adjacent waters. Preamble, III and 

IV, and Technical Support Document, I and VIII.

 

1180 The proposal’s lack of clarity with respect to floodplains is particularly problematic. The preamble provides that 

the term “floodplain” as used in the proposed rule does not necessarily equate to the 100-year floodplain defined by 

the Federal Emergency Management Agency (FEMA), but it does not specify how else a regulator might interpret 

the term. See 79 Fed. Reg. at 22,236. To add to the confusion, regulations from a number of federal agencies, 

including FEMA, refer to various floodplain categories. See, e.g., 7 C.F.R. § 761.2 (referencing 100-year and 500-

year floodplains); 14 C.F.R. § 1216.204 (same); 24 C.F.R. § 55.12 (same); 40 C.F.R. § 280.43 (referencing 25-year 

floodplain); 40 C.F.R. part 300, Appx. A (referencing 10-year, 100- year, and 500-year floodplains).

1181 79 Fed. Reg. at 22,263.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

580

Washington County Water Conservancy District (Doc. #15536)

10.625 The Agencies’ jurisdictional-by-rule proposal is not supported by the law. The Agencies’ 

reliance on Justice Kennedy’s concurring opinion in Rapanos for their sweeping 

jurisdiction-by rule proposal is misplaced. First, as explained in Section I above, the 

Rapanos Court’s holding cannot be extended to other types of non-wetland water bodies. 

Second, Justice Kennedy’s Rapanos opinion does not support the agencies’ specific 

proposal to treat certain waters as automatically jurisdictional-by-rule.1182 Because Justice 

Kennedy’s remarks regarding the Agencies’ ability to adopt a jurisdictional-by-rule 

approach in a future rulemaking process were not necessary to resolve the issues in 

Rapanos, those remarks constitute non-binding dicta and should therefore be given less 

weight than the holdings in SWANCC and other prior decisions.1183

Even assuming the Agencies have the authority to use a jurisdictional-by-rule approach in 

general, Justice Kennedy’s opinion does not support the specific approach proposed by 

the Agencies. To the extent that his opinion endorsed a jurisdictional-by-rule approach, 

his endorsement was limited to the context of wetlands adjacent to tributaries, and it was 

also limited by a requirement that the Agencies adopt “more specific” criteria for 

evaluating water bodies such as “their volume of flow (either annually or on average), 

their proximity to navigable waters, or other relevant considerations.”1184 Because the 

Agencies’ jurisdictional-by-rule proposal extends beyond the narrow context of adjacent 

wetlands to all tributaries and all “adjacent” waters, and because it does not include the 

types of “specific criteria” that Justice Kennedy’s opinion required, the proposal is not 

supported by that opinion. (p. 12) 

Agency Response: The agencies' significant nexus determinations are consistent 

with the caselaw and available science. Preamble, III and IV and Technical Support 

Document, I, II, VI-IX. 

Kenny Fox (Doc. #15754)

10.626 I strongly urge the EPA to withdraw the proposed rule ( Clean Water Act; Definitions: 

Waters of the United States) because it is ARBITRARY AND CAPRICIOUS as it 

violates the United States Supreme Court Rulings referred to below, the United States 

Constitution and state sovereignty.

 

1182 Justice Kennedy noted that the agencies’ existing standard for tributaries, which relies solely on the presence of 

a connection to a traditional navigable water and certain physical characteristics indicating an ordinary high water 

mark, was too expansive to provide the basis for a jurisdictional determination regarding adjacent wetlands because 

it left “wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and 

carrying only minor water volumes toward it.” He also suggested that the Agencies could “identify categories of 

tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable waters, or 

other relevant considerations, are significant enough that wetlands adjacent to them are likely, in the majority of 

cases, to perform important functions for an aquatic system incorporating navigable waters.” Rapanos, 547 U.S. at 

781.

1183 See, e.g., Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511, 520 (2012) (“[G]eneral expressions, in 

every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the 

case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is 

presented for decision.” (quoting Cohens v. Virginia, 19 U.S. 264, 399 (1821)). 

1184 ] Rapanos, 547 U.S. at 781.
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

581

United States Supreme Court Rulings that state the EPA has no authority over State law: 

Brown v. EPA, 521 F. 2d, 827, 838-842 (CA9 1975), Maryland v.EPA, 530 F. 2d 215 

and New York v. United States, 505 U.S. 144(1992). Id., at 175-176. The Federal 

Government, we held, may not compel the States to enact or administer a federal 

regulatory program. Id.188.

New York v. United States, 505 U.S. 144(1992) also states We have held, however, that 

state legislatures are not subject to federal direction.

This case refers to state sovereignty. October 10, 2007 the United States Supreme Court 

heard case 06-984, Medellin v. Texas. On March 25, 2008, the United Stated Supreme 

Court returned a 6-3 decision in favor of Texas.

State law supersedes federal and international law end of story. With draw this proposed 

rule. (p. 1)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

City of Jackson, Mississippi (Doc. #15766)

10.627 IV. The proposed rule contradicts the Supreme Court's guidance in Rapanos and 

otherwise exceeds the Agency's CWA authority

The proposed rule explicitly refers to Justice Kennedy's concurrence in Rapanos v. 

United States as the basis for the new definition, but the definition drastically expands 

tire reach of the CWA. In Rapanos, 547 U.S. 715 (2006), the court split 4-1-4. Four 

justices upheld the United States' interpretation of what wetlands should be considered 

jurisdictional, and four others ruled that only "relatively permanent waters" are 

jurisdictional. Rapanos v. United States, 547 U.S. 715, 757, 787 (2006). Justice Kennedy 

rejected both tests and instead held that waters are jurisdictional if they have a 

"'significant nexus" to navigable waters. Id. at 759. His opinion is the prevailing view of 

the Supreme Court on what wetlands are jurisdictional under the Act and purportedly 

serves as the basis for the proposed rule. 79 Fed. Reg. at 22192.

However, the proposed rule actually looks similar to the position that the federal

government argued, and lost, in Rapanos. In Rapanos, the federal government argued 

that “the connection between traditional navigable waters and their tributaries is 

significant in practical terms, because pollution of the tributary has the potential to 

degrade the quality of the traditional navigable waters downstream." Brief of the United 

States in Rapanos, at 15. The federal government explicitly rejected the notion "that some 

tributaries may have such an attenuated connection to traditional navigable waters that 

federal protection of those tributaries would be unwarranted," Id. 

The Supreme Court, and Justice Kennedy, disagreed with the federal government's

position. Justice Kennedy rejected many of the government's assertions, holding that a 

wetland cannot be determined to have a significant nexus simply because it is adjacent to 

an ordinary highwater-mark tributary:

[T]he Corps deems a water a tributary if it feeds into a traditional navigable water 

(or a tributary thereof) and possesses an ordinary high-water mark . . . the breadth 

of this standard - which seems to leave wide room for regulation of drains, 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

582

ditches and streams remote from any navigable-in-fact water and carrying only 

minor water 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. 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.”

Rapanos, 547 U.S. at 805-806 (emphasis added). Despite Justice Kennedy’s admonition, 

the Agencies propose to define tributaries as 'water physically characterized by the 

presence of a bed and banks and ordinary high water mark." They wrongly have adopted 

the view that all adjacent waters are per se jurisdictional because of a "significant nexus" 

finding. While Justice Kennedy’s opinion recognized that the federal government could 

opt to protect tributaries that "are likely, in the majority of cases'' to have a significant 

nexus to traditionally navigable water, that opinion also rejected the notion that the CWA 

protects every discernible water that contributes flow directly, or indirectly to a 

traditionally navigable water, no matter how remote or insubstantial. Id at 781. Given the 

similarity between the Agencies' proposed language and the arguments made by the

federal government and rejected by the Supreme Court in Rapanos, the Agencies should 

avoid such an expansive jurisdictional overreach. (p. 5)

Agency Response: Consistent with Justice Kennedy’s opinion, the rule is not 

based on the “any connection theory” but is instead based on the agencies’ careful 

examination of the science and the law to make a determination of significant nexus 

for specified waters and to provide that certain other waters may be jurisdictional 

where a case-specific determination has found a significant nexus. Preamble, III 

and IV, and Technical Support Document, I.A, B., C. and II. The rule is consistent 

with caselaw. Technical Support Document, I.C.

Independent Petroleum Association of New Mexico (Doc. #16915.1)

10.628 In the proposed regulation, the EPA and the Army Corps of Engineers, (hereinafter 

referred to as "the agencies") proposes to define 'waters of the United States" to mean 

"[t]raditional navigable waters; interstate waters, including interstate wetlands; the 

territorial seas; impoundments of traditional navigable waters, interstate waters, including 

interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; 

tributaries, as defined, of traditional navigable waters, interstate waters,^ or the territorial 

seas; and adjacent waters, including adjacent wetlands: Id. at 22188. The agencies also 

propose an expansive definition 'other waters', wherein through a case-specific showing 

that, either alone or in combination with similarly situated "other waters" in the region, 

the Corps may obtain jurisdiction over the subject waters if they have a "significant 

nexus" to a traditional navigable water, interstate water, or the territorial seas. Id. at 

22189. However, the determination of a 'significant nexus' is a legal exercise, and not a 

scientific one. Second, it is clear from the proposed expansion of the definition of waters 

of the United States' to include 'other waters' ignores the plurality decision in the Rapanos

case (Rapanos v. US., 547 U.S. 715, 767 (2006)) and even impermissibly expands Justice 

Kennedy's concurring opinion regarding a 'significant nexus' standard. Finally, we would 

urge the agencies to go back to the drawing table, heeding both Justice Scalia and the 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

583

Science Advisory Board, to use actual science rather than legal standards for the 

determination of what waters can e under the Corps jurisdictional authority. (p. 3 – 4)

Agency Response: The rule is based on the agencies’ careful examination of the 

science and the law to make a determination of significant nexus for specified waters 

and to provide that certain other waters may be jurisdictional where a case-specific 

determination has found a significant nexus. Preamble, III and IV, and Technical 

Support Document, I.A, B., C. and II. The rule is consistent with caselaw. Technical 

Support Document, I.C.

Cook County, Minnesota, Board of Commissioners (Doc. #17004)

10.629 WHEREAS, we find it very disheartening to have to deal with a proposed rule that is 

counter to the latest Supreme Court decision (Rapanos ET UX. Et Al v United States), 

which has clearly addressed this matter. By using the current proposed rule the Agencies 

appear to be attempting to override the Rapanos Supreme Court decision, which for the 

most part dismissed the notion that intertwined "water connectivity" and the presence of 

some kind of nebulous "significant nexus" to navigable waters give the Agency’s 

jurisdiction for permitting a much expanded jurisdictional authority, including authority 

over a broader suite of land use activities; and

WHEREAS, in the Rapanos ET UX. Et Al v United States decision, Justice Scalia's 

plurality opinion, section VII clearly addresses and shows the errors with the EPA and 

Corps notion that "water connectivity" and the presence of a "significant nexus" 

somehow come from and are part of the CWA. In this opinion, it is stated in the first 

paragraph of page 37:

"One would think, after reading JUSTICE KENNEDY's exegesis, that the crucial 

provision of the test of the CWA was a jurisdictional requirement of "significant 

nexus" between wetlands and navigable waters. In fact, however, that phrase 

appears nowhere in the Act, but is taken from SWANCC's cryptic characterization 

of the holding of Riverside Bayview" 

This statement alone should have been a red flag to the EPA and Corps that the 

occurrence of "water connectivity" and the presence of a "significant nexus" was 

somehow a mandate for them to take it upon themselves to redefine what constitutes 

"waters of the United States" for CWA purposes. We find it alarming that these agencies 

feel free to ignore the intent of Congress through bypassing the CWA and ignoring the 

findings of the Supreme Court. It is even more troubling that the agencies would attempt 

to convince the public that they are somehow empowered to greatly expand their 

jurisdictional authorities, which would open the door for them to substantially increase 

their influence in land use activities across the entire nation; and (p. 3)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

Arizona Rock Products Association (Doc. #17055)

10.630 The agencies' reliance on the "connectivity study" essentially transforms a handpicked 

aggregation of scientific studies into the controlling legal interpretation of "waters of the 

United States." The legal interpretation should start with the limits set out by Justice 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

584

Kennedy in his Rapanos opinion and determine how scientific evidence should be 

interpreted to define a "bright line" between "any nexus" and "significant nexus." (p. 3)

Agency Response: The rule is based on the agencies’ careful examination of the 

science and the law to make a determination of significant nexus for specified waters 

and to provide that certain other waters may be jurisdictional where a case-specific 

determination has found a significant nexus. Preamble, III and IV, and Technical 

Support Document, I.A, B., C. and II. The rule is consistent with caselaw. Technical 

Support Document, I.C.

Atlantic Legal Foundation (Doc. #17361)

10.631 2. The Rapanos Precedent 

Without explanation, the proposed rule unceremoniously, and without sufficient basis,

disposes of Justice Scalia's plurality opinion in Rapanos v. United States and Carabell v. 

United States ("Rapanos") in favor of the nebulous "significant nexus" test found in 

Justice Kennedy's concurrence.

1185In Rapanos, the plurality opinion held that "waters of 

the United States" covered relatively permanent, standing or continuously flowing bodies 

of water that are connected to traditional navigable waters, in addition to adjacent 

wetlands with a continuous surface connection to such water bodies.' The proposed 

regulation substitutes the amorphous term "adjacent waters" for the phrase "adjacent 

wetlands." This skews the plurality's definition, giving the agencies vast discretion to 

interpret what constitutes an "adjacent water." Further, under the proposed rule these 

adjacent waters may be connected via subsurface hydrologic connections, completely at 

odds with the plurality's "continuous surface" connection requirement: 3 Not only does 

the proposed rule contradict the plurality's definition, but the agencies fail to explain why 

Justice Kennedy's amorphous definition should supplant Justice Scalia's more concrete 

and certain test. At a minimum, we believe the agencies should be required to give a 

detailed rationale for this decision. (p. 4 – 5)

Agency Response: All nine of the United States Courts of Appeals to have 

considered “the narrowest grounds” under Marks have stated that Justice 

Kennedy’s significant standard may be used to establish applicability of the CWA. 

The rule is consistent with caselaw. Technical Support Document, I.C.

Georgia Association of Manufacturers (Doc. #18896)

10.632 The proposed rule misinterprets Justice Kennedy's " significant nexus" test to extend 

jurisdiction to "waters " that were never contemplated by the Court. (p. 2)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. 

United States Senate (Doc. #19309)

10.633 From a legal perspective, this waters of the U.S. rule ignores the limits and structure 

Congress put in place and the limits recognized by the U.S. Supreme Court. The U.S. 

Supreme Court has stated that all bodies of water are not under EPA’s jurisdiction. In 

 

1185 Rapanos v. United States and Carabell v. United States, 547 U.S. 715 (2006).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

585

Rapanos v. United States, the court ruled the Corps’ expansive interpretation of the Clean 

Water Act (CWA) was based on an impermissible construction of the statute. Yet, now 

the Corps and the EPA are again attempting to expand their regulatory reach through this 

latest waters of the U.S. rule. Far from abiding by the court’s finding that “navigable 

waters” are to be regulated by the CWA, this rule will bring burdensome and intrusive 

regulation to thousands to thousands of ditches, ephemeral streams, and small, isolated 

ponds and wetlands. (p.1)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. The 

agencies have concluded the benefits of the rule exceed the costs. Preamble, V and 

Economic Assessment in the docket.

M. Sedlock (Doc. #19524)

10.634 Issue 2: Failure to provide legal justification for the proposed rule

Reference: FR page 22188, column 3: The SWANCC and Rapanos decisions resulted in 

the agencies evaluating the jurisdiction of waters on a case-specific basis far more 

frequently than is best for clear and efficient implementation of the CWA. This approach 

results in confusion and uncertainty to the regulated public and results in significant 

resources being allocated to these determinations by Federal and State regulators.

Discussion: We find this statement to be self-serving and misleading. There is no doubt 

that with the plurality decision in the SWANCC and Rapanos cases the Supreme Court 

has already provided a clear definition of “waters of the United States”. (See summary of 

the Supreme Court’s decision in the attached “Syllabus of RAPANOS ET UX. Et AL v. 

UNITED STATES”1186)

Interpreting the law and providing a clear meaning to the intent of laws when there is 

doubt or a dispute is the primary role of the Supreme Court. The Supreme Court has done 

its job concerning the definition of “waters of the United States” and “jurisdictional 

waters” under the CWA. We find that the Agencies have been and are continuing to 

struggle with “mission creep”, i.e. self-determined expansion of their mission beyond 

their statutory authority, as demonstrated by their unwillingness to accept the (Rapanos) 

Supreme Court decision and instead formulating this proposed rule. Unwilling to accept 

the Supreme Court definitions, the Agencies are attempting to implement their own 

definition of the “waters of the United States”, which has led to much confusion and 

uncertainty for the American public.

There can only be one reason for the Agencies’ concern with having to evaluate 

jurisdiction of waters on a case-specific basis: The Agencies’ desire to expand their scope 

of jurisdiction over the nation’s waters. The perceived need to control land use activities 

across most of the nation, which has swept through the upper administrative levels of the 

Agencies, is not a need for states or the American public, nor is it a valid or acceptable 

justification for the proposed rule.

 

1186 http://www.law.cornell.edu/supct/html/04-1034.ZS.html Accessed 06/24/14
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

586

The Agencies’ bid to expand their scope of jurisdiction over the nation’s waters and the 

need to control land use activities across most of the nation is clearly evident in the fact 

that the EPA has taken it upon themselves to commission the development of a “Water 

Body Connectivity Report” and to further go to the trouble of setting up their own EPA 

Science Advisory Board (SAB) review of the report. It is hard to believe the outcome of 

this self-serving process would lead to anything but a finding that all waters are 

connected in one way or another, and to conclude that the Agencies must be granted 

jurisdiction for permitting just about every land use activity in the nation.

Unfortunately for the Agencies, the Constitution does not grant power to any federal 

agency to establish their own authorities or jurisdictional boundaries independent of 

Congress and the Supreme Court.

Recommendation: Withdraw the proposed rule. If the Agencies feel the need to expand 

their jurisdictional authority and the scope of waters protected by the CWA, they must 

work within the bounds of already established federal and case law. Furthermore, they 

must work within established constitutional process, as well as with state and local 

elected officials and a broad cross section of the American public in developing changes 

to their mission and scope of authority. (p. 6 – 7)

Agency Response: The rule is consistent with the statute, Supreme Court 

decisions, and the Constitution. Technical Support Document, I.A., B., and C. The 

agencies' significant nexus determinations are reasonable and based on the science, 

the law, and the agencies' experience and technical expertise. Preamble III and IV, 

Technical Support Document, II and VI.

10.635 Issue 3: Failure to provide justification for expansion of authority and jurisdiction

Reference: FR page 22189, column 1: The agencies emphasize that the categorical 

finding of jurisdiction for tributaries and adjacent waters was not based on the mere 

connection of a water body to downstream waters, but rather a determination that the 

nexus, alone or waters in the region, is significant based on data, science, the CWA, and 

case law.

In addition, the agencies propose that ‘‘other waters’’ (those not fitting in any of the 

above categories) could be determined to be ‘‘waters of the United States’’ through a 

case-specific showing that, either alone or in combination with similarly situated ‘‘other 

waters’’ in the region, they have a ‘‘significant nexus’’ to a traditional navigable water, 

interstate water, or the territorial seas. The rule would also offer a definition of significant 

nexus and explain how similarly situated ‘‘other waters’’ in the region should be 

identified.

Discussion: The above statements not examples of agencies adding clarity to existing 

laws. Instead, these statements are additional examples of “mission creep”, i.e. selfdetermined expansion of their mission beyond statutory authority. These statements serve 

to usurp the authority and jurisdiction of state and local governments. Although the 

powers of the federal government are vested by the U.S. Constitution, it is state 

government that tends to have a greater influence over most Americans' daily lives.

The Tenth Amendment to the United States Constitution prohibits the federal government 

from exercising any power not delegated to it by the states in the U.S. Constitution; thus 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

587

the states, through local governments (county, municipal governments and the elected 

officials of soil and water conservation districts), handle the majority of issues most 

relevant to individuals within their respective jurisdictions.

Federal agencies are established by governments to provide specific services. The 

personnel of federal agencies are not elected officials, but rather civil servants. Agencies 

implement the actions required by laws (statutes) enacted by Congress, and may not take 

action that goes beyond their statutory authority or that violates the Constitution.

By virtue of the Acts of 1866, 1870, and 1877 the federal government divested itself of 

its authority over all non-navigable waters in the West, ceding that authority to the states. 

This action of Congress has only been changed in the past by the exemption of water 

from appropriation under state law. Thus, non-navigable waters of the West are still 

outside of the jurisdictional authority of the Agencies.

The proposed expansion of authority and jurisdiction over lands that may be or are 

covered with water for short periods of time cannot be justified. These are non-navigable 

waters. Clearly this expanded role is not the role the EPA and Corps were created to 

accomplish.

What is even more troubling with the proposed rule is the idea that because intertwined 

“water connectivity” and nebulous “significant nexus” to navigable waters might exist, 

somehow that connectivity and nexus should give the Agencies jurisdictional authority to 

fit their perceived needs. This is especially troublesome given the fact that what is being 

proposed has already resulted in multiple court cases that have gone as far as the 

Supreme Court of the United States, and has already resulted in the Supreme Court 

rendering multiple decisions that define “waters of the United States”.

We finds it is very disheartening to have to deal with a proposed rule that is counter to the 

latest Supreme Court decision (Rapanos ET UX. Et Al v. United States), which has 

clearly addressed this matter. By issuing the current proposed rule the Agencies appear to 

be attempting to override the Rapanos Supreme Court decision, which for the most part 

dismissed the notion that intertwined “water connectivity” and the presence of some kind 

of nebulous “significant nexus” to navigable waters give the Agency’s jurisdiction for 

permitting a much expanded jurisdictional authority, including authority over a broader 

suite of land use activities.

In the Rapanos ET UX. Et Al v. United States decision, Justice Scalia’s plurality opinion, 

section VII, clearly addresses and shows the errors with the Agencies notion that “water 

connectivity” and the presence of a “significant nexus” somehow come from and are part 

of the CWA. In this opinion, it is stated in the first paragraph of page 37:

“One would think, after reading JUSTICE KENNEDY’s exegesis, that the crucial 

provision of the text of the CWA was a jurisdictional requirement of “significant nexus” 

between wetlands and navigable waters. In fact, however, that phrase appears nowhere in 

the Act, but is taken from SWANCC’s cryptic characterization of the holding of 

Riverside Bayview.”

This statement alone should have been a red flag to the Agencies that the occurrence of 

“water connectivity” and the presence of a “significant nexus” was somehow a mandate 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

588

for them to take it upon themselves to redefine what constitutes ”waters of the United 

States” for CWA purposes.

We find it alarming that the Agencies feel free to ignore the intent of Congress through 

bypassing the CWA and ignoring the findings of the Supreme Court. It is even more 

troubling that the Agencies would attempt to convince the public that they are somehow 

empowered to greatly expand their jurisdictional authorities, which would open the door 

for them to substantially increase their influence in land use activities across the entire 

nation. 

Recommendation: Withdraw the current proposed rule. If the Agencies feel the need to 

expand their jurisdictional authority and the scope of waters protected by the CWA, they 

must work within the bounds of already established federal and case law, specifically 

incorporating the “waters of the United States” definition presented by the plurality 

Supreme Court opinion in the RAPANOS ET UX. Et AL v. UNITED STATES decision. 

Furthermore, the Agencies must work within established constitutional process, as well 

as with state and local elected officials and a broad cross section of the American public 

in developing changes to their mission and scope of authority. (p. 7 – 9)

Agency Response: The rule is consistent with the statute, caselaw, and the 

Constitution. Technical Support Document, I.A., B., and C. 

Blake Follis (Doc. #19973)

10.636 (...) Because I also happen to be an attorney, you folks might get together with the 

USDA and review Wickard v. Filburn, 317 U.S. 111 (1942). (p. 1)

Agency Response: The rule is consistent with the Supreme Court decisions, and 

the Constitution. Technical Support Document, I.C and IV. 

ATTACHMENTS AND REFERENCES

Comments included above in this document discuss the Proposed Rule, and some include 

citations to various attachments and references, which are listed below. The agencies do not 

respond to the attachments or references themselves, rather the agencies have responded to the 

substantive comments themselves above, as well as in other locations in the administrative 

record for this rule (e.g., the preamble to the final rule, the TSD, the Legal Compendium). In 

doing so, the agencies have responded to the commenters’ reference or citation to the report or 

document listed below as it was used to support the commenters’ comment. Relevant comment 

attachments include the following:

62-340.750 Exemption for Surface Waters or Wetlands Created by Mosquito Control Activities. 

(Doc. #4847.2)

Brief of the American Forest & Paper Association et al. as Amici Curiae in Support of 

Petitioners, SWANCC v. Corps, 531 U.S. 159 (2001) (No. 99-1178) (Doc. #15016.1, p. 51)

Brief of American Petroleum Institute et al. as Amici Curiae in Support of Petitioners, Sackett v. 

EPA, 132 S. Ct. 1367 (2012) (No. 10-1062). (Doc. #15016.1, p. 2)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

589

Brief of Foundation for Environmental And Economic Progress et al. as Amici Curiae in Support 

of Petitioners, Rapanos v. United States, 547 U.S. 715 (2006) (Nos. 04-1034 & 04-1384). (Doc. 

15016.1, p. 77)

API Legal and Policy Comments on 2014 Proposed Rule. (Doc. #15115, p. 6)

Admirality and Maritime Law Document. (Doc. #3099.1)

Kingsport Horizontal Property Regime and Kingsport Homeowners Association, Inc., et al. v. 

United States. (Doc. #4847.1)

In addition, commenters submitted the following relevant references. These are copied into this 

document as they were submitted by commenters. HW has not verified the references, or the 

validity of hyperlinks.

5 Stat. 726 (1845). (Doc. #3099, p.6) 

33 U.S.C. 403. (Doc. #3099, p.19)

94 Stat. 2371, 1980. Alaska National Interest Lands Conservation Act (“ANILCA”), Dec. 2, 

1980, codified at 16 U.S.C. § 3101 et seq. (Doc. #3777.2, p.71)

155 F. Supp. 442. (Doc. #3099, p.19)

Additional Views of Representative Edgar and Representative Myers, H.R. Rep. No. 95-139, at 

54 (1977); 123 Cong. Rec. 26725 (daily ed. Aug. 4, 1977). (Doc. #13610, p.5)

Adler , Jonathan. Wetlands, Property Rights, and the Due Process Deficit, Cato Supreme Court 

Review, 141 (2012). (Doc. #8319, p. 2) 

Agins v. City of Tiburon, 447 U.S (1980). (Doc. #11978, p.3)

American College of Environmental Lawyers (ACOEL), "Memorandum for ECOS [The 

Environmental Council of the States] Concerning Waters of the United States, 

September 1l, 2014, p. 112. (Doc. #13563, p.3)

ANNEX OF PRE-RAPANOS, NON-CWA OPINIONS USING “SIGNIFICANT NEXUS” 

(Doc. #16406, p .7-13)

Antitrust

Loiterman v. Antani, No. 90 C 983, 1990 WL 91062, at *4 (N.D. Ill. June 28, 1990).

Bankruptcy

In re Barber, 266 B.R. 309, 318 (Bankr. E.D. Pa. 2001); In re Merriweather, 185 B.R. 

235, 238 (Bankr. S.D. Tex. 1995); In re Penrose, No. 91-00882-7, 1991 WL 11002289, at 

*2 (Bankr. W.D. Wis. Oct. 10, 1991); In re Marshall, 118 B.R. 954, 962 (Bankr. W.D. 

Mich. 1990); Acolyte Elec. Corp. v. City of New York, 69 B.R. 155, 171 (Bankr. 

E.D.N.Y. 1986); In re Arnold Print Works, Inc., 54 B.R. 562, 566 (Bankr. D. Mass. 

1985); In re Pied Piper Casuals, Inc., 50 B.R. 549, 551 (Bankr. S.D.N.Y. 1985); In re 

Burch, 34 B.R. 294, 294 (Bankr. W.D. Ky. 1983).

Black lung

Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1393 (7th Cir. 1994).

Child neglect
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

590

In re Jesse W., 2005 WL 2650645, at *12 (Conn. Super. Ct. Sept. 22, 2005); In re 

Christopher C., No. CP035929A, 2004 WL 3106190, at *18 (Conn. Super. Ct. Dec. 15, 

2004).

Choice of law

Jaurequi v. John Deere Co., 986 F.2d 170, 176 n.10 (7th Cir. 1993); State Trading Corp. 

of India v. Assuranceforeningen Skuld, 921 F.2d 409, 417 (2d Cir. 1990); N.Y. Protective 

Covering Indus. v. Stevens Technical Servs., No. 96 CV 0418, 1997 WL 104767, at *2 

(E.D.N.Y. Feb. 18, 1997); Great Am. Ins. Co. v. J. Aron & Co., No. 94 Civ. 4420, 1995 

WL 495492, at *3 (S.D.N.Y. Aug. 18, 1995); Newark Ins. Co. v. Blair, No. 92 Civ. 1648, 

1994 WL 4410, at *3 (S.D.N.Y. Jan. 3, 1994); Contract Marine Carriers v. Abbott Labs., 

Int’l, No. 91 Civ. 1401, 1993 WL 106374, at *5 (S.D.N.Y. Apr. 6, 1993); Commercial 

Union Ins. Co. v. Horne, 787 F. Supp. 337, 339 (S.D.N.Y. 1992); In re Litig. Involving 

Alleged Loss of Cargo from Tug Atl. Seahorse, “Sea Barge 101” Between P.R. & Fla. in 

Dec. 1988, 772 F. Supp. 707, 711 (D.P.R. 1991); Ferens v. Deere & Co., 639 F. Supp. 

1484, 1489 (W.D. Pa. 1986); Healy Tibbitts Constr. Co. v. Foremost Ins. Co., 482 F. 

Supp. 830, 835 (N.D. Cal. 1979); In re Maxwell Commc’n Corp., 170 B.R. 800, 807 

(Bankr. S.D.N.Y. 1994); In re Prudential Lines, Inc., 148 B.R. 730, 738 (Bankr. S.D.N.Y. 

1992); Sequa Corp. v. Aetna Cas. & Sur. Co., Civ. A. No. 89C-AP-1, 1995 WL 465192, 

at *1 (Del. Super. Ct. July 13, 1995); N. Am. Philips Corp. v. Aetna Cas. & Sur. Co., Civ. 

A. No. 88C-JA-155-1-CV, 1994 WL 555399, at *7 (Del. Super. Ct. Sept. 2, 1994); 

Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Civ. A. No. 89C-SE35, 1994 WL 721651, at *5 (Del. Super. Ct. Mar. 28, 1994); Munzer v. St. Paul Fire & 

Marine Ins. Co., 610 N.Y.S.2d 389, 391 (N.Y. 1994).

Civil rights

Vento v. Colo. Nat’l Bank, No. 98-1236, 1999 WL 314566, at *2 (10th Cir. May 19, 

1999); Sack v. Huggins, No. 93-7108, 1994 WL 413271, at *5 (10th Cir. Aug. 1, 1994); 

Cabututan v. Hunsaker, No. 92-4086, 1993 WL 55945, at *2 (10th Cir. Mar. 1, 1993); 

Johnson v. Kegans, 870 F.2d 992, 1004 (5th Cir. 1989); Hammond v. Bales, 843 F.2d 

1320, 1323 (10th Cir. 1988); Shaffer v. Cook, 634 F.2d 1259, 1260 (10th Cir. 1980); 

Norton v. Liddel, 620 F.2d 1375, 1380 (10th Cir. 1980); Heffington v. Dist. Ct. of 

Sedgewick Cnty., No. 05-4028-SAC, 2005 WL 1421530, at *3 (D. Kan. June 17, 2005); 

Jackson v. Univ. of New Haven, 228 F. Supp. 2d 156, 162 (D. Conn. 2002); Reil v. 

Clinton Cnty., 75 F. Supp. 2d 37, 40 (N.D.N.Y. 1999); Church of Human Potential, Inc. 

v. Vorsky, 636 F. Supp. 93, 96 (D.N.J. 1986); Anderson v. Glismann, 577 F. Supp. 1506, 

1509 (D. Colo. 1984); Whelehan v. Cnty. of Monroe, 558 F. Supp. 1093, 1108 

(W.D.N.Y. 1983).

Conflict of laws

Altadis USA, Inc. v. NPR, Inc., 308 F. Supp. 2d 1304, 1307 (M.D. Fla. 2004); Howard v. 

Howard, No. 2:02CV1192, 2004 WL 724372, at *3 (D. Utah Mar. 12, 2004); Brentwood 

Investors v. Wal-Mart Stores, Inc., No. C-95-0856, 1998 WL 337968, at *7 (N.D. Cal. 

June 19, 1998); Interface Flooring Sys., Inc. v. Aetna Cas. & Sur. Co., 804 A.2d 201, 204 

(Conn. 2002); Phelan v. Budget Rent A Car Sys. Inc., 699 N.Y.S.2d 568, 569 (N.Y. App. 

Div. 1999).
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

591

Constitutional law (federal)

United States v. Yang, 286 F.3d 940, 946 (7th Cir. 2002); Phelps v. Wichita EagleBeacon, 886 F.2d 1262, 1271 (10th Cir. 1989); United States v. Rollings, 494 F.2d 344, 

345 (8th Cir. 1974); Nat’l Tire Dealers & Retreaders Ass’n v. Brinegar, 491 F.2d 31, 37 

(D.C. Cir. 1974); Christie v. Borough of Folcroft, No. Civ. A. 04-5972, Civ. A. 04-5944, 

2005 WL 2396762, at *10 (E.D. Pa. Sept. 27, 2005); Good v. Bd. of Cnty. Comm’rs, 209 

F. Supp. 2d 1124, 1128 (D. Kan. 2002); United States v. Kegel, 916 F. Supp. 1233, 1237 

(M.D. Fla. 1996); Aleem v. Int’l Union of AFSCME, No. 93-CV-70076-DT, 1994 WL 

897987, at *6 (E.D. Mich. July 5, 1994); United States v. Conley, 813 F. Supp. 372, 378 

(W.D. Pa. 1993); Am. Fed’n of Gov’t Emps., Council 33 v. Barr, 794 F. Supp. 1466, 

1475 (N.D. Cal. 1992); In re Advisory Op. to the Governor, 509 So.2d 292, 305 (Fla. 

1987); Strode v. Esmark, Inc., No. 79-CI-1590, 1980 WL 1905, at *11 (Ky. Cir. Ct. May 

13, 1980); RIO/Bill Blass v. Bredeson Assocs., No. C6-97-1386, 1998 WL 27299, at *4 

(Minn. Ct. App. Jan. 27, 1998); Settlement Funding, LLC v. Hunt, No. 01CC-2247, 2002 

WL 33006381, at *4 (Mo. Cir. Ct. Sept. 10, 2002); Sharrock v. Dell Buick-Cadillac, Inc., 

379 N.E.2d 1169, 1172 (N.Y. 1978); Wernham v. Moore, No. 193 NYLJ 71, 1985 WL 

167849, at *2 (N.Y. App. Div. May 5, 1985); Wernham v. Moore, 432 N.Y.S.2d 711, 

712-13 (N.Y. App. Div. 1980); Cahill v. Pub. Serv. Comm’n, 490 N.Y.S.2d 90, 94 (N.Y. 

Sup. Ct. 1985); State v. Yuen, 49 P.3d 819, 822 (Or. Ct. App. 2002); Ettipio v. State, 794 

S.W.2d 871, 873 (Tex. Ct. App. 1990); Cassidy v. Salt Lake Cnty. Fire Civil Serv. 

Council, 976 P.2d 607, 614 n.5 (Utah Ct. App. 1999); Commonwealth v. Lane, No. 

031899-2, 1999 WL 1133676, at *2 (Va. Ct. App. Aug. 3, 1999).

Constitutional law (state)

Guarisco v. City of Daphne, 825 So.2d 750, 758 (Ala. 2002); Commonwealth v. Crider & 

Rogers, Inc., 929 S.W.2d 179, 180 (Ky. 1996); State v. Woods, No. C-950954, 1997 WL 

602963, at *9 (Ohio Ct. App. Sept. 5, 1997); In re Jessie A. Kirby Dorm., Lafayette Coll., 

No. 1992-C-1264, 1993 WL 485138, at *6 (Pa. Ct. Com. Pl. Sept. 22, 1993).

Contract JAK Prods., Inc. v. Wiza, 986 F.2d 1080, 1086 (7th Cir. 1993); Royal Ins. Co. 

v. Harbor Shuttle, Inc., No. CV-97-3828, 1999 WL 33236523, at *6 (E.D.N.Y. Jan. 25, 

1999); LaCorte Elec. Constr. & Maint. v. Centron Sec. Sys., Inc., 894 F. Supp. 80, 84 

(N.D.N.Y. 1995); Pinckney v. Tigani, No. Civ. A. 02C-08-129FSS, 2004 WL 2827896, 

at *5 (Del. Super. Ct. Nov. 30, 2004); Thomas v. Zamberletti, 480 N.E.2d 869, 872 (Ill. 

App. Ct. 1985); Ohio Valley Commc’ns, Inc. v. Greenwell, 555 N.E.2d 525, 528 (Ind. Ct. 

App. 1990); Field v. Alexander & Alexander, Inc., 503 N.E.2d 627, 632 (Ind. Ct. App. 

1987); Lorusso Corp. v. Att’y Gen., No. 03-P-195, 2004 WL 3019523, at *3 (Mass. App. 

Ct. Dec. 30, 2004); Papalas v. Ford Motor Co., No. 252470, 252527, 2005 WL 2994582, 

at *9 (Mich. Ct. App. Nov. 8, 2005).

Copyright

Le Moine v. Combined Commc’ns Corp., No. 95 C 5881, 1996 WL 332688, at *4 (N.D. 

Ill. June 13, 1996).

Criminal

United States v. Tashbook, 144 F. App’x 610, 614 (9th Cir. 2005); United States v. Jolly, 

151 F. App’x 700, 703 (10th Cir. 2005); United States v. Young, No. 95-2626, 1996 WL 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

592

116820, at *4 (7th Cir. Mar. 14, 1996); United States v. Holmquist, 36 F.3d 154, 159 (1st 

Cir. 1994); United States v. Miller, 901 F. Supp. 371, 377 (D.D.C. 1995); United States 

v. Buffington, 879 F. Supp. 1220, 1223 (N.D. Ga. 1995); United States v. Klingensmith, 

17 M.J. 814, 816 (A.C.M.R. 1984); State v. Ross, 646 A.2d 1318, 1332 (Conn. 1994); 

Zacek v. Brewer, 241 N.W.2d 41, 46-7 (Iowa 1976); State v. Martin, No. C9-02-2127, 

2003 WL 230252152, at *4 (Minn. Ct. App. Dec. 30, 2003); State v. Payne, No. 

CA2003-02-019, 2004 WL 413349, at *2 (Ohio Ct. App. Mar. 8, 2004); State v. Webb, 

No. 80206, 2003 WL 1771668, at *4, (Ohio Ct. App. Apr. 3, 2003); Commonwealth v. 

Fucci, 380 A.2d 425, 427 (Pa. Super. Ct. 1977); Commonwealth v. Funds in Merrill 

Lynch Account, Owned by Peart, 777 A.2d 519, 521 (Pa. Commw. Ct. 2001); 

Commonwealth v. Fraierson, No. 1889-03-2, 2003 WL 22950272, at *3-4, (Va. Ct. App. 

Dec. 16, 2003); Hill v. Commonwealth, 438 S.E.2d 296, 300 (Va. Ct. App. 1993); 

Brewer v. State Dep’t of Motor Vehicles, 595 P.2d 949, 951 (Wash. Ct. App. 1979); State 

v. Hakes, No. 91-1164-CR, 1991 WL 285903, at *3 (Wis. Ct. App. Nov. 6, 1991).

Employment

Constr. Indus. of Mass. v. Comm’r of Labor and Indus., 546 N.E.2d 367, 371 (Mass. 

1989); Cox v. T.S. Truck Servs., No. 991602, 2005 WL 2373865, at *6-7 (Mass. Super. 

Ct. Aug. 23, 2005).

Ethics

Steel v. Gen. Motors Corp., 912 F. Supp. 724, 734 (D.N.J. 1995); Koch v. Koch Indus., 

798 F. Supp. 1525, 1538 (D. Kan. 1992); In re Conduct of Worth, 82 P.3d 605, 619 (Or. 

2003); In re Reciprocal Discipline of Rokahr, 681 N.W.2d 100, 106 (S.D. 2004).

Evidence

United States v. Williams, 561 F.2d 859, 862 n.4 (D.C. Cir. 1977); Computer Network 

Corp. v. Spohler, 95 F.R.D. 500, 503 n. 2 (D.D.C. 1982); State v. Alger, 764 P.2d 119, 

128 (Idaho. Ct. App. 1988); State v. Baker, 23 S.W.3d 702, 711 (Mo. Ct. App. 2000); 

State v. Ashley, 623 A.2d 984, 985 (Vt. 1993); Baker v. Commonwealth, No. 2875-97-1, 

1999 WL 1126553, at *2, 3, 5 (Va. Ct. App. Mar. 9, 1999); Blaylock v. Commonwealth, 

496 S.E.2d 97, 102 (Va. Ct. App. 1998).

Extraterritoriality

Guy v. IASCO, No. B168339, 2004 WL 1354300, at *5 (Cal. Ct. App. June 17, 2004).

Foreign Sovereign Immunities Act (FSIA)

Filetech S.A. v. France Telecom S.A., 304 F.3d 180, 182 (2d Cir. 2002); Reiss v. Société 

du Groupe des Assurances Nationales, 235 F.3d 738, 747-48 (2d Cir. 2000); Filetech 

S.A. v. France Telecom S.A., 157 F.3d 922, 930 (2d Cir. 1998); NYSA-ILA Pension 

Trust Fund By & Through Bowers v. Garuda Indon., 7 F.3d 35, 38-9 (2d Cir. 1993); 

Schoenberg v. Exportadora de Sal, S.A. de C.V., 930 F.2d 777, 781-82 (9th Cir. 1991); 

Barkanic v. Gen. Admin. of Civil Aviation of China, 923 F.2d 957, 958 (2d Cir. 1991); 

Laroque v. Qantas Airways, No. 89-15298, 1990 WL 48216, at *1 n.1 (9th Cir. Apr. 20, 

1990); Compania Mexicana De Aviacion, S.A. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 

859 F.2d 1354, 1360 (9th Cir. 1988); Barkanic v. Gen. Admin. of Civil Aviation of 

China, 822 F.2d 11, 12 (2d Cir. 1987); Ellenbogen v. Canadian Embassy, No. Civ. A. 05-
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

593

01553JDB, 2005 WL 3211428, at *3 (D.D.C. Nov. 9, 2005); Murphy v. Korea Asset 

Mgmt. Corp., 421 F. Supp. 2d 627, 648 (S.D.N.Y. 2005); In re Air Crash Near Nantucket 

Island, 392 F. Supp. 2d 461, 468 (E.D.N.Y. 1999); Cruz v. United States, 387 F. Supp. 2d 

1057, 1066 n.6 (N.D. Cal. 2005); Daventree Ltd. v. Republic of Azer., 349 F. Supp. 2d 

736, 749-51 (S.D.N.Y. 2004); Kirkham v. Societe Air France, No. Civ. A. 03-1083 9, 

2004 WL 3253704, at *4 (D.D.C. Nov. 2, 2004); Human Rights in China v. Bank of 

China, No. 02 Civ. 4361, 2003 WL 22170648, at *4 (S.D.N.Y. Sept. 18, 2003); Reiss v. 

Societe Centrale du Groupe des Assurances Nationales, 246 F. Supp. 2d 273, 276 

(S.D.N.Y. 2003); Raccoon Recovery, LLC v. Navoi Mining & Metallurgical Kombinat, 

244 F. Supp. 2d 1130, 1140 (D. Colo. 2002); Reiss v. Societe Centrale du Groupe des 

Assurances Nationales, 185 F. Supp. 2d 335, 336 (S.D.N.Y. 2002); Leutwyler v. Office 

of Her Majesty Queen Rania Al-Abdullah, 184 F. Supp. 2d 277, 293-96 (S.D.N.Y. 2001); 

Ryba v. Lot Polish Airlines, No. 00 Civ. 5976, 2001 WL 286731, at *2 (S.D.N.Y. Mar. 

22, 2001); Filetech S.A. v. France Telecom, S.A., 212 F. Supp. 2d 183, 191 (S.D.N.Y. 

2001); Tonoga, Ltd. v. Ministry of Pub. Works & Hous. of Kingdom of Saudi Arabia, 

135 F. Supp. 2d 350, 356 (N.D.N.Y. 2001); Elias v. Albanese, No. 00CIV.2219, 2000 

WL 1182803, at *6 (S.D.N.Y. Aug. 21, 2000); Moses v. Air Afrique, No. 99-CV-541, 

2000 WL 306853, at *3 (E.D.N.Y. Mar. 21, 2000); U.S. Fid. & Guar. Co. v. Petroleo 

Brasileiro S.A.-Petrobras, No. 98 Civ. 3099, 1999 WL 307642, at *7 (S.D.N.Y. May 17, 

1999); U.S. Fid. & Guar. Co. v. Braspetro Oil Servs. Co., No. 97 Civ. 6124, 1999 WL 

307666, at *12 (S.D.N.Y. May 17, 1999); Filetech, S.A. v. France Telecom, S.A., No. 95 

Civ. 1848, 1999 WL 92517, at *1 (S.D.N.Y. Feb. 17, 1999); Shalaby v. Saudi Arabian 

Airlines, No. 97 Civ. 9393, 1998 WL 782021, at *3 (S.D.N.Y. Nov. 9, 1998); Napolitano 

v. Tishman Constr. Corp., No. 96 CV 4402, 1998 WL 102789, at *3-4 (E.D.N.Y. Feb. 26, 

1998); Elliot v. British Tourist Auth., 986 F. Supp. 189, 194 (S.D.N.Y. 1997); Filetech 

S.A.R.L v. France Telecom, 978 F. Supp. 464, 483 (S.D.N.Y. 1997); Intercont’l 

Dictionary Series v. De Gruyter, 822 F. Supp. 662, 674 (C.D. Cal. 1993); NYSA-ILA 

Pension Trust Fund ex rel. Bowers v. Garuda Indon., No. 91 Civ. 7113, 1993 WL 

455113, at *2 (S.D.N.Y. Mar. 1, 1993); Ampac Grp. Inc. v. Republic of Hond., 797 F. 

Supp. 973, 977 (S.D. Fla. 1992); Bahsoon v. Pezetel, Ltd., 768 F. Supp. 507, 511 

(E.D.N.C. 1991).

Forum/venue

United States v. Wood, 364 F.3d 704, 713 (6th Cir. 2004); In re Delphi Corp. Sec., 

Derivative & “ERISA” Litig., 403 F. Supp. 2d 1358, 1360 (J.P.M.L. 2005); Oliveaux ex 

rel. Oliveaux v. Hanger Prosthetics & Orthotics, Inc., No. Civ.A. 03-0473, 2003 WL 

22384958, at *1 (E.D. La. Oct. 14, 2003); Ellis v. Costco Wholesale Corp., 372 F. Supp. 

2d 530, 541 (N.D. Cal. 2005); Sun Forest Corp. v. Shvili, 152 F. Supp. 2d 367, 390 

(S.D.N.Y. 2001); Hyundai Space & Aircraft Co. v. Boeing Co., No. C 99-3255, 1999 WL 

910131, at *4 (N.D. Cal. Oct. 12, 1999); Millspaugh v. Atl. Recording Corp., No. Civ.A. 

3:99-CV-0344, 1999 WL 740350, at *4 (N.D. Tex. Sept. 21, 1999); Tischio v. Bontex, 

Inc., 16 F. Supp. 2d 511, 525 (D.N.J. 1998); AHP Sys., Inc. v. Cullman Ventures, No. 97 

C 4947, 1997 WL 779108, at *4 (N.D. Ill. Dec. 10, 1997); Wm. H. McGee & Co. v. 

United Arab Shipping Co. S.S., 6 F. Supp. 2d 283, 290-91 (D.N.J. 1997); Venable v. 

Nat’l Car Rental Sys. Inc., No. Civ. A. 96-2564, 1997 WL 198113, at *2 (D.D.C. Apr. 

15, 1997); Studiengesellschaft Kohle MBH v. Shell Oil Co., No. 93 Civ. 1868, 1993 WL 

403340, at *5 (S.D.N.Y. 1993); Reeder v. Yamaha Motor Corp., U.S.A., No. 92 Civ. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

594

5455, 1992 WL 370414, at *5 (S.D.N.Y. Dec. 2, 1992); Herdlein Techs., Inc. v. Century 

Contractors, Inc., No. 91 C 6664, 1992 WL 22697, at *4 (N.D. Ill. Feb. 6, 1992); Applied 

Web Sys. v. Catalytic Combustion Corp., No. 90 C 4411, 1991 WL 70893, at *3 (N.D. 

Ill. Apr. 29, 1991); Irving Capital Corp. v. Serologicals Acquisition, Inc., No. 85 Civ. 

6383, 1986 WL 2763, at *3 (S.D.N.Y. Feb. 27, 1986); Zerda v. Mesa Petroleum Co., No. 

85 Civ. 2812, 1985 WL 562, at *5 (S.D.N.Y. Apr. 23, 1985); Kaiser Found. Health Plan 

v. Rose, 583 A.2d 156, 156 (D.C. 1990); Anderson v. Great Lakes Dredge & Dock Co., 

309 N.W.2d 539, 542-44 (Mich. 1981); Beall v. Ernst & Young LLP, No. 192874, 1997 

WL 33353682, at *1 (Mich. Ct. App. Feb. 25, 1997); Hamann v. Am. Motors Corp., 245 

N.W.2d 699, 701 (Mich. Ct. App. 1983); Vercimak v. Vercimak, 762 S.W.2d 529, 532 

(Mo. Ct. App. 1988); Varkonyi v. S.A. Empresa de Viacao Airea Rio Grandense (Varig), 

239 N.E.2d 542, 546 (N.Y. 1968); Chawafaty v. Chase Manhattan Bank, 733 N.Y.S.2d 

12, 12 (N.Y. App. Div. 2001); Solid Transit Inc. v. Venture Opportunities Corp., 681 

N.Y.S.2d 282, 282 (N.Y. App. Div. 1998); Brunner v. Joubert, 499 N.Y.S.2d 87, 87 

(N.Y. App. Div. 1986); SBA Network Servs. v. Fred A. Nudd Corp., No. 51706, 2005 

WL 3079097, at *1 (N.Y. Sup. Ct. Jan. 25, 2005); Daly v. Metro. Life Ins. Co., 782 

N.Y.S.2d 530, 536 (N.Y. Sup. Ct. 2004); Aboujdid v. Gulf Aviation Co., 437 N.Y.S.2d 

219, 221 (N.Y. Sup. Ct. 1980); State v. Headley, 453 N.E.2d 716, 719, 721 (Ohio 1983); 

State v. Draggo, 418 N.E.2d 1343, 1346 (Ohio 1981); State v. Copeland, No. CA2003-

12-320, 2005 WL 2937282, at *3 (Ohio Ct. App. Nov. 7, 2005); State v. Meridy, No. 

CA2003-11-091, 2005 WL 123993, at *3 (Ohio Ct. App. Jan. 24, 2005); State v. 

Wellbaum, No. 2000-CA-5, 2000 WL 1232773, at *2 (Ohio Ct. App. Sept. 1, 2000); 

State v. Miller, No. 97-CA-84, 1998 WL 401837, at *1-2 (Ohio Ct. App. Mar. 27, 1998); 

State v. Sandoval, No. 95CA006150, 1996 WL 107002, at *4-5 (Ohio Ct. App. Mar. 13, 

1996); State v. Schnoering, No. 95CA006044, 1995 WL 678522, at *1 (Ohio Ct. App. 

Nov. 15, 1995); State v. Hackworth, 609 N.E.2d 228, 231 (Ohio Ct. App. 1992); Tesauro 

v. Quigley Corp., No. 1011, Control 051340, 2002 WL 372947, at *9 (Pa. Ct. C.P. Jan. 

25, 2002).

Freedom of Information Act (FOIA)

Davis, Cowell & Bowe, LLP v. Soc. Sec. Admin., No. C 01-4021, 2002 WL 1034058, at 

*5 (N.D. Cal. May 16, 2002).

Insurance

Ruttenberg v. U.S. Life Ins. Co., 413 F.3d 652, 662 n.12 (7th Cir. 2005).

Joinder

Commercial Union Ins. Co. v. Pfizer, Inc., 607 N.Y.S.2d 255, 255 (N.Y. App. Div. 

1994).

Maritime

Molett v. Penrod Drilling Co., 872 F.2d 1221, 1225 (5th Cir. 1989); Molett v. Penrod 

Drilling Co., 826 F.2d 1419, 1427 (5th Cir. 1987); Bonnette v. Shell Offshore, Inc., 838 

F. Supp. 1175, 1182 (S.D. Tex. 1993); Reecer v. Mckinnon Bridge Co., 745 F. Supp. 

485, 497 (M.D. Tenn. 1990); Duplechin v. Prof’l Ass’n for Diving Instructors, 666 F. 

Supp. 84, 87 (E.D. La. 1987); Am. Nat. Bank & Trust Co. v. United States, 636 F. Supp. 

147, 149 (N.D. Ill. 1986); Lingo v. Great Lakes Dredge & Dock Co., 638 F. Supp. 30, 32 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

595

(E.D.N.Y. 1986); Zelaskowski v. Johns-Manville, Corp., 578 F. Supp. 11, 14 (D.N.J. 

1983); Bell v. Dunn, 924 So.2d 224, 240 (La. Ct. App. 2005); Antill v. Pub. Grain 

Elevator, 577 So.2d 1039, 1040 (La. Ct. App. 1991); Dean v. State, 542 So.2d 742, 746 

(La. Ct. App. 1989); Rigopoulos v. State, 608 N.Y.S.2d 378, 380 (N.Y. Ct. Cl. 1994).

National Environmental Policy Act (NEPA) Cady v. Morton, 527 F.2d 786, 795 n.9 (9th 

Cir. 1975); Friends of the Earth v. Coleman, 513 F.2d 295, 300 (9th Cir. 1975).

Perishable Agricultural Commodities Act (PACA)

Norinsberg v. U.S. Dep’t of Agric., 162 F.3d 1194, 1197 (D.C. Cir. 1998); Maldonado v. 

Dep’t of Agric., 154 F.3d 1086, 1088 (9th Cir. 1998); Hart v. Dep’t of Agric., 112 F.3d 

1228, 1230-31 (D.C. Cir. 1997); Bell v. Dep’t of Agric., 39 F.3d 1199, 1201 (D.C. Cir. 

1994); Faour v. U.S. Dep’t of Agric., 985 F.2d 217, 220 (5th Cir. 1993); Kaplan v. U.S. 

Dep’t of Agric., No. 87-1175, 1988 WL 76557 (D.C. Cir. July 22, 1988); Siegel v. Lyng, 

851 F.2d 412, 417 (D.C. Cir. 1988); Veg-Mix, Inc. v. U.S. Dep’t of Agric., 832 F.2d 601, 

611 (D.C. Cir. 1987); Martino v. U.S. Dep’t of Agric., 801 F.2d 1410, 1413-14 (D.C. Cir. 

1986); Minotto v. U.S. Dep’t of Agric., 711 F.2d 406, 409 (D.C. Cir. 1983).

Personal jurisdiction

Nat’l Union Fire Ins. Co. v. BP Amoco P.L.C., 319 F. Supp. 2d 352, 370 (S.D.N.Y. 

2004); Hanson Pipe & Prods., Inc. v. Bridge Techs., LLC, 351 F. Supp. 2d 603, 618 

(E.D. Tex. 2004); Freeplay Music, Inc. v. Cox Radio, Inc., No. 04 Civ. 5238, 2005 WL 

1500896, at *6 (S.D.N.Y. June 23, 2005); Ibrani v. Mabetex Project Eng’g, No. C-00-

0107, 2002 WL 1226848, at *7 (N.D. Cal. May 31, 2002); Gould, Inc. v. Mitsui Mining 

& Smelting Co., No. C85-3199, 1990 WL 103155, at *7 (N.D. Ohio June 29, 1990); 

Cornwell v. C.I.T. Corp., 373 F. Supp. 661, 664 (D.D.C. 1974); Lee v. Goshen Rubber 

Co., 635 N.E.2d 214, 217 (Ind. Ct. App. 1994); Kimco Exch. Place Corp. v. Thomas 

Benz, Inc., No. 5391-05, 2005 WL 2934280, at *3 (N.Y. Sup. Ct. Nov. 3, 2005); Phone 

Directories Co. v. Henderson, 8 P.3d 256, 261 (Utah 2000) (Howe, C.J., concurring).

Pleading

In re Warfarin Sodium Antitrust Litig., 214 F.3d 395, 398 (3d Cir. 2000).

Product liability

Feldman v. Kohler Co., 918 S.W.2d 615, 623 (Tex. App. 1996).

Retirement benefits

Siwek v. Ret. Bd. of Policemen’s Annuity & Benefit Fund, 756 N.E.2d 374, 398 (Ill. 

App. Ct. 2001).

Sentencing

Moore v. Reynolds, 153 F.3d 1086, 1109 (10th Cir. 1998).

Subject matter jurisdiction

Laker Airways v. Sabena, Belgian World Airlines, 731 F.2d 909, 953 n.173 (D.C. Cir. 

1984); Heartland By-Products v. United States, 223 F. Supp. 2d 1317, 1334 (Ct. Int’l 

Trade 2002); Biskos v. Clyde Seaways, S.A., No. Civ. A. 90-2316, 1992 WL 38440, at 

*3 (E.D. Pa. Feb. 25, 1992); Anderson v. Conley, 501 A.2d 1057, 1060 (N.J. Super. Ct. 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

596

Law Div. 1985) Scappoose Sand & Gravel, Inc. v. Columbia Cnty., 984 P.2d 876, 879 

(Or. Ct. App. 1999); Fence v. Jackson Cnty., 900 P.2d 524, 526 (Or. Ct. App. 1995).

Tax McKirahan v. Comm’r, 45 T.C.M. (CCH) 787 (T.C. 1983); Reece v. Comm’r, 36 

T.C.M. (CCH) 299 (T.C. 1977); State Dep’t of Revenue v. Sears, Roebuck & Co., 660 

P.2d 1188, 1189-91 (Alaska 1983); Sunday Sch. Bd. of S. Baptist Convention v. 

Mitchell, 658 S.W.2d 1, 6 (Mo. 1983); Bethesda Barclay House v. Ciarleglio, 88 S.W.3d 

85, 93 (Mo. Ct. App. 2002); Tri-State Osteopathic Hosp. Ass’n v. Blakeley, 898 S.W.2d 

693, 696 (Mo. Ct. App. 1995); Frias v. City of New York, 511 N.Y.S.2d 469, 472 (N.Y. 

Sup. Ct. 1986); Home Interiors & Gifts, Inc. v. Strayhorn, 175 S.W. 3d 856, 867 (Tex. 

App. 2005).

Tort 

Black v. Yuja, No. B152979, 2003 WL 1521993, at *6 (Cal. Ct. App. Mar. 25, 2003); 

Gallara v. Koskovich, 836 A.2d 840, 855 (N.J. Super. Ct. Law Div. 2003); Cotto v. City 

of New York, 471 N.Y.S.2d 865, 867 (N.Y. App. Div. 1984).

Workers’ compensation

Chicot Mem’l Hosp. v. Veazey, 652 S.W.2d 631, 633 (Ark. Ct. App. 1983); Roynon v. 

Janet’s Cleaning Serv., 521 A.2d 1271, 1276 (Md. Ct. Spec. App. 1987); Forgach v. 

George Koch & Sons Co., 421 N.W.2d 568, 574 (Mich. Ct. App. 1988); Manzer v. 

Washington Cnty., No. A-93-937, 1994 WL 285090, at *5 (Neb. Ct. App. June 28, 

1994); Levine v. Haddon Hall Hotel, 332A.2d 193, 198 (N.J. 1975); Ricciardi v. Aniero 

Concrete Co., 312 A.2d 139, 141 (N.J. 1973

Arreola v. Monterey, 99 Cal App. 4th. (Doc. #10259, p.2)

Arizona v. California, 283 U.S. 423, 455-457. (Doc. #3099, p. 15)

Barney v. Keokuk, 94 U.S. 324, 338, 24 S. L. ed. 224, 228. (Doc. #3099, p. 13)

Berman v. Parker, 348 U.S. 26, 32. (Doc. #3099, p. 15)

California v. Sierra Club, 451 U.S. 287 (1981). (Doc. #3099, p.21)

California v. United States, 438 U.S. 645, 662,1978 (Doc. #14589, p. 31)

California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 158, 163-164,1935 

(Doc. #14589, p. 31) 

Carey v. South Dakota, 250 U.S. 118 , 39 Sup. Ct. 403. (Doc. #0160, p.5)

City of Colorado Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1074 (10th Cir.), 2009 

(Doc. #14589, p. 32) 

Charles River Bridge v. Proprietors of, 36 U.S 420 (1837). (Doc. #3099, p. 13)

Chevron U.S.A. Inc. V. Natural Resources Defense Counsel, Inc., 467 U.S. (1984). (Doc. 

#10260, p. 75)

Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 215-16 (2d Cir. 2009). (Doc. #13610, p.10)

Covington & C. Bridge Co. v. Com. of Kentucky, 154 U.S. 2041894). (Doc. #3099, p.17)

Cummings v. City of Chicago, 188 U.S. 410 (1903). ( Doc, #3099, p.18) 
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

597

The Daniel Ball, 77 U.S 557 (1870). (Doc. #3099, p. 3)

Defenders of Wildlife v. Browner, 191 F.3d 1159 9th Cir. 1999 (Doc. #14589, p. 30)

Dep't of Ecology v. U.S. Bureau of Reclamation, 118 Wn.2d 761, 827 P.2d 275 (1992). (Doc. 

#13571, p. 3)

Delovio v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass 1815) (Justice Story). (Doc. #3099, 

p.2)

Economy Light & Power Co. v. United States, 256 U.S. 113 (1921). (Doc. #3099, p.6)

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 

568, 575 (1988). (Doc. #10260, p.77)

Egan v. Hart, 165 U.S 188, 41 L. ed. 680, 17 sup. Ct. Rep. 300. (Doc. #3099, p.8)

Escanaba & Lake Michigan Transp. Co, v. City of Chicago, 107 U.S. 678 (1883). (Doc. # 3099, 

p. 5)

Executive Order No. 13186, Jan. 10, 2001, 66 FR 3853- Responsibilities of Federal Agencies to 

Protect Migratory Birds. (Doc. #0160, p.4) 

Fall-Davis Report (S. Doc. 142, 67th Congo 2nd Sess.) (Doc. #13198, p. 2)

FCC v. Fox Television Stations, Inc., 132 S. Ct. (2012). (Doc. #10260, p.74)

Federal Water Pollution Control Act (“Clean Water Act”) 33 U.S.C §§1251-1387. (Doc. #10193, 

p.5)

FLP Energy Marine Hydro LLC v. FERC, 287 f. 3d 1151, 1157 (D.C Cir. 2002). (Doc. #8319, p. 

4)

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S (1985). (Doc. #10260, p.80)

The Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851). (Doc. #3099, p.7)

GDF ReallyIinvestments, Ltd v. Norton, 326 F.3d 622(5th Cir., 2003) (Doc.#10966, p.5)

Gibbons v. Ogden, 22 U.S 1 (1824). (Doc. #3099, p.3)

Gilman v. Philadelphia, 3 Wall. 713, 724, 18 L. ed. 96, 99. (Doc. #3099, p.5)

Goudy-Bachman, 811 F.Supp.2d at 1105 (Doc. #19595, p. 9) 

Gonzalez v. Raich, 545 U.S. 1, 17 and 22 (Doc. #19595, p. 9)

Great Northwest, Inc. v. United States Army Corps of Engineers, 2010 WL 9499372 

(D.Alaska).(Doc. #7494.1, p. 5)

Harg. Law Tracts, pp. 11,12. (Doc. #3099, p.13)

Hawkes Co., Inc. v. United States Corps of Eng’rs, 963 F. Supp. 2d 868, 874 (D. Minn. 2013). 

(Doc. #7528.1, p.11)

Idaho et al. v. Coeur d’alene Tribe of Idaho et al. 94 U.S 1474 (1997). (Doc. #3099, p.11)

Illinois C.R. Co. Illinois, 146 U.S. 387, 434-437, 36 L. ed. 1018, 1035-1037, 13 Sup. Ct. Rep. 

110. (Doc. #3099, p. 13)

Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892) (Doc. #13198, p. 1)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

598

In re Needham, 354 F.3d 345(5th Cir.2003) (Doc. #10966, p.8)

Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 280-283,1958 (Doc. #14589, p. 32) 

Kaiser Aetna v.US, 444 U.S. 164(1979)(Doc. #10966, p.8)

King v. Palmer,950 F.2d 771(D.C. Cir. 1991) (Doc. #5503, p.8)

Kingsport Horizontal Property Regime and Kingsport Homeowners Association, Inc. et al. v. 

The United States 62-340.750 Exemption for Surface Waters or Wetlands Created by 

Mosquito Control Activities (Doc. #4847.1, p. 1-11)

Koncelik, Jon. "EPA and Corps Release Proposed Rule Defining 'Waters of the U.S.,"' Ohio 

Environmental Law Blog (blog), April 1, 2014, http:// www.ohioenvironment 

allawblog.com/ tags/navigable-waters .. (Doc. #12754, p. 3)

Lake Shore & M S VR Co. v, State of Ohio, 165 U.S. 365 (1897) (Doc, # 3099, p .17)

Lessee of Pollard v. Hagan, 3 How. 212 (1845). (Doc. #3099, p.12)

Levoy v. U S, 177 U.S. 621 (1900). (Doc. # 3099, p.4)

The Lottawanna, 88 U.S (21 Wall). (Doc. #3099, p.3)

Los Angeles County Flood Control District v. NRDC, __U.S. __, 133 S.Ct. 710, 2013 (Doc. 

#14589, p. 29)

Machinists v. Street, 367 U.S. 740, 749-750 (1961); Crowell v. Benson, 285 U.S. 22, 62, 1932 

(Doc. #14589, p. 36) 

Maricopa-Stanfield Irrig. & Drainage Dist. v. United States, 158 F.3d 428, 430-431 (9th Cir.), 

1998 (Doc. #14589, p. 32)

Marks v. United States, 430 U.S 188 (1977). (Doc. #10260, p.63)

Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842). (Doc. #3099, p.12)

McGilvra v. Ross, 215 U.S. 70, 54 L. ed. 95, 30 Sup. Ct. Rep. 27. (Doc. #3099, p.13) 

Metropolitan Water District v. Marquardt, 59 Cal.2d 159, 171-173,1963 (Doc. #14589, p. 32)

Montana Constitution, Article IX , § 3(3) (Doc. #13625, p.1)

Montana Constitution, Article IX, § 1(3) (Doc. #13625, p.1)

Montana Water Quality Act, Mont. Code Ann. §75-5-101. (Doc. #13625, p.1)

Nat’l Fed’n of Indep. Bus. v. Sebellius, 132 S. Ct. 2566, 2578, 2012 (Doc. #19595, p. 8)

Nst’l Fed;n of Indep. Bus. V. Sebellius, 132 S.Ct. 2566(2012) (Doc. #12726, p.8)

Natural Res. Defense Council v. Callaway, 524 F. 2d79, 83-85 (2d Cir. 1975). (Doc. #13610, 

p.6)

Nevada v. United States, 463 U.S. 110, 115-116,1983 (Doc. #14589, p. 32)

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 1979 (Doc. #14589, p. 36) 

Old Dominion Co. v. United States, 269 U.S. 55, 66. (Doc. #3099, p.15)

Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508, 525, 533-534. (Doc. #3099, p.15)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

599

Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092, 1096-1097 (9th Cir),. 1998 (Doc. 

#14589, p. 33)

Oregon ex rel. State Land Bd. V. Corvallis Sand & Gravel Co., 429 U.S 363, 374 (1977). (Doc. 

#3099, p.12)

Packer v. Bird, 137 U.S 661, 667, 11 S. Ct. 210, 211. (Doc. #3099, p.10)

Pennsylvania v. The Wheeling and Belmont Bridge Co., 18 How. 42. (Doc. #3099, p.16)

Perez v. United States, 402 U.S. 146(1971) (Doc . #12726, p.9)

Pianin, Eric. Adn1inistration Establishes NeM1 Wetlands Guidelines, The Washington Post, Jan. 

11, 2003, at A05. (Doc. #13610, p 8)

Planned Parenthood of Southeastern Pa v. Casey, 947 F2d 682 (3rd Cir.1991). (Doc. #5503, p.8)

Pollard’s Lessee v. Hagan, 44 U.S. 212, 224-229,1845 (Doc. #14589, p. 35) 

Port of Seattle v. Oregon & W.R CO., 255 U.S 56 (1921). (Doc. #3099, p.14)

PPL Montana, LCC v. Montana, 132 S.Ct. 1215, 1226-1228, 2012 (Doc. #14589, p. 35)

Proposed Brief Amici Curiae of Nat'l Wildlife Fed'n, Chesapeake Bay Found. and Natural Res. 

Def. Council in Support of Defendant-Appellee U.S. Army Corps of Eng'rs and 

Affirmance of District Court Decision, filed in the case of Precon Dev. Corp., Inc. v. U.S. 

Army Corps ofEng'rs (4th Cir. 2010). (Doc. #14620, p.4)

Proposed Rule: Definition of “Waters of the United States” Under the Clean Water Act, Federal 

Register,Vol. 79, No. 76. (Doc. #13625, p.2)

Pronsolino v. Nastri, 291 F.3d 1123, 1126-1127 (9th Cir.), 2002 (Doc. #14589, p. 33)

Protection of Migratory Game and Insectivorous Birds (“The Migratory Bird Treaty Act”) 16 

U.S.C 703-711. (Doc. #0160, p.2)

Rapanos v. United States, 547 U.S 715 (2006). (Doc. #10260, p.63)

Rivers and Harbors act of 1890, 26 Stat. 20. (Doc. #3099, p.18)

River and Harbor Act of 1892 (27 Sat. At L. pp.88,110, chap. 158). (Doc.#3099, p.18)

Rivers and Harbor Act of 1899, 30 Stat. 1121, 1151, as amended, 33 U.S.C. 403. (Doc. #3099, 

p.19)

Rothschild, Lowell, Waters of the US, Bloomberg BNA Daily Environmental Report, October 

16, 2014. (Doc. #13622, p.4)

Rowe v. Bridge Corp, 21 Pick. 344. (Doc. #3099, p.8)

S. Rep. No. 414 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code Congo & Admin. News at 

3752-53. (Doc. #11773.1, p.1)

Sackett v. EPA, 132 S.Ct. 1367 (2012). (Doc. #8319, p.2)

Sanitary District v United States, 266 U.S. 405. (Doc.#3099, p.21)

Scott v. Lattig, 227 U.S 229 (1913). (Doc. #3099, p.12)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

600

Sen. Conf. Rep. No. 92-1236, 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code Congo & 

Admin. News 3376 at 3822. (Doc. #11773.1, p.1)

The Seneca, 21 Fed. Cas. 1801 (No. 12670) C.C.E.D.Pa. 1829. (Doc. #3099, p.2)

Shively v. Bowlby, 152 U.S 1 (1894). (Doc. #3099, p.11)

Solid Waste Agency of Northern Cook County v. U.S Army Corps of Engineers, 531 U.S 159 

(2001). (Doc. #10260, p.63)

South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 2004. 

(Doc. #14589, p. 28)

St. Clair County v. Lovingston, 23 Wall. 46, 68, 23 L. ed. 59, 63. (Doc. #3099, p.13) 

St.Paul & P.R. Co. v. Schurmeir, 7 Wall. 272, 288, 19L. ed. 74, 78. (Doc. #3099, p.12)

State of Missouri v. Holland 252 U.S. 416 (1920). (Doc. #0160, p.5)

State of Oklahoma v. State of Texas, 258 U.S 574 (1922). (Doc. #3099, p.9)

State of South Carolina v. State of Georgia, 93 U.S 4 (1876). (Doc. #3099, p.16)

State of Washington, Department of Ecology v. James J. Acguavella, et al. (Doc. #13571, p. 3)

State of Wisconsin v. State of Illinois, 278 U.s 367 (1929). (Doc. #3099, p.14)

Statement of Sen. Philip Hart, D-Mich., Pub. L. No. 95-217 (1977); 123 CONG. REC. 26725 

(daily ed. Aug. 4, 1977). (Doc. #13610, p.6)

Statement of Rep. William Harsha D-Ohio, at 939-40; 123 Cong. Rec. 10401 (daily ed. Apr. 5, 

1977). (Doc. #13610, p.6)

The Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428, (1825). (Doc. #3099, p.6) 

US Environmental Protection Agency and US Army Corps of Engineers, Economic Analysis of 

Proposed Revised Definition of Waters of the United States, March 2014. (Doc. #12754, 

p.3)

United States v. 0.59 Acres of Land, 109 F.3d 1493, 1495 (9th Cir.), 1997 (Doc. #14589, p. 32) 

United States ex rel. TV Av. Welch, 327 U.S. 546, 552. (Doc. #3099, p.15)

United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940). (Doc. #3099, p.6) 

United States v. Bass, 404 U.S (1971). (Doc. #10260, p.80)

United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009). (Doc. #13610, p.10)

United States. v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913). (Doc. # 3099, p.5)

U.S. v. Chicago, M., ST. P. & P.R. Co., U.S. 592 (1941). (Doc. 33099, p.17)

United States v. Cress, 243 U.S 316 (1917). (Doc. #3099, p.8)

United States. v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009). (Doc. #13610, p.10)

United States v. Darby, 312 U.S.100(1941). (Doc. #12726, p. 9)

United States v. Freedman Farms, Inc., 2011 WL 1884000, *7 (E.D.N.C. 2011). (Doc. #13610, 

p.10)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

601

United States v. Gerlach Live Stock Co., 339 U.S. 725, 728-736, 1950 (Doc. #14589, p. 32) 

United States v. Holt State Bank, 270 U.S 49, 56, 46, S. Ct. 197, 199. (Doc. #3099, p.10)

United States v. Johnson, 467 F.3d 56 (1st Cir. 2006). (Doc. #13610, p.10)

United States v. Lopez,514 U.S. 549(1995). (Doc.#5143, p.5)

United States v. Lucas, 516 F.3d 316, 327 (5th Cir. 2008). (Doc. #13610, p.10)

United States v. The Montello, 22 L. ed. 394. (Doc. #3099, p.7)

United States. v. Morrison, 529 U.S. (2000). (Doc. #10260, p. 78)

United States v. Republic steel Corp., U.S. 482 (1960.) (Doc. #3099, p.18)

United States v. Rio Grande Dam & Irrigation Co., 174 U.S 690 (1899). (Doc. #3099, p.7)

United States v. Riverside Bayview Homes, Inc., 474 U.S 121 (1985). (Doc. #10260, p.63) 

United States v. River Rouge Improvement Co., 269 U.S 411 (1926). (Doc. #3099, p.15)

United States v. Robison, 505 F.3d 1208 (11th Cir. 2007), 521 F.3d 1319 (11th Cir. 2008). (Doc. 

#13610, p.10)

United States v. State of Utah, 283 U.S 64 (1931). (Doc. #3099, p.9)

United States v. State Water Resources Control Board, 182 Cal.App.3d 82, 98-100,1982 (Doc. 

#14589, p. 32) 

United States v. Twin City Power Co., 350 U.S 22 (1956). (Doc. #3099, p.15)

Utah Div. of State Lands v. United States, 482 U.S 193, 195-198 (1987). (Doc. #3099, p.12)

Utility Air Reg. Group v. EPA, No. 12-1146, slip op. U.S. Jun. 23, 2014 (Doc. #19595, p. 10) 

Village of Hobart v. Oneida Tribe of Wisconsin, 732 F.3d 837 (7th Cir. 2013). (Doc. #13198, p. 

2)

Waring v. Clarke, 46 U.S (5 How.) 441 (1847). (Doc. #3099, p.2)

Washington Wilderness Coal. v. Hecla Min. CO. (Doc. 11855, pg.7).

Weber v. Board of Harbor Commissioners, 18 Wall. 57. (Doc. #3099, p.14)

Wickard v. Filburn, 317 U.S. 111, 1942 (Doc. #19595, p. 8) 

Willamette Iron Bridge Co. v. Hatch. (Doc. # 3099, p. 19)

Yates v. Milwaukee. (Doc. #3099, p.15)

Yule Kim, CRS Report for Congress, Statutory Interpretation: General Principles and Recent 

Trends, https://www.fas.org/sgp/crs/misc/97-589.pdf (Aug. 31, 2008). (Doc. #5843.1, 

p.12)

Supplemental References:

Carabell v. United States, 547 U.S. 715 (2006) (Doc. #17361, p. 5)

Federal Power Comm’n v. Oregon, 349 U.S. 435, 442-43 (1955) (Doc. #0009.1, p. 2)

Heart of Atlanta Motel v. United States, 379 U.S. 241, 280 (1964) (Doc. #0009.1, p. 2)
Clean Water Rule Response to Comments – Topic 10: Legal Analysis

602

Marks v. United States, 430 U.S. 188, 193 (1977) (Doc. #14613, p. 6)

Rapanos v. United States (Doc. #17361, p. 5; Doc. #15055, p. 3)

Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers et al., 

531 U.S. 159 (2001) (Doc. #15055, p. 3)

United States v. Riverside Bayview Homes, 474 U.S. 121, 137 (1985) (Doc. #0009.1, p. 1)