Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules 32227 

1While EPA administers most provisions in the 

CWA, the Department of the Army, Corps of 

Engineers (Corps) administers the permitting 

program under section 404. During the 1980s, both 

agencies adopted substantially similar definitions of 

‘‘waters of the United States.’’ See 51 FR 41206, 

Nov. 13, 1986, amending 33 CFR 328.3; 53 FR 

20764, June 6, 1988, amending 40 CFR 232.2. 

vending machine, in a type size at least 

150 percent of the size of the net 

quantity of contents declaration on the 

front of the package, and with sufficient 

color and contrasting background to 

other print on the label to permit the 

prospective purchaser to clearly 

distinguish the information. 

* * * * * 

Dated: July 6, 2018. 

Leslie Kux, 

Associate Commissioner for Policy. 

[FR Doc. 2018–14906 Filed 7–11–18; 8:45 am] 

BILLING CODE 4164–01–P 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

33 CFR Part 328 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 110, 112, 116, 117, 122, 

230, 232, 300, 302, and 401 

[EPA–HQ–OW–2017–0203; FRL–9980–52– 

OW] 

RIN 2040–AF74 

Definition of ‘‘Waters of the United 

States’’—Recodification of Preexisting 

Rule 

AGENCY: Department of Defense, 

Department of the Army, Corps of 

Engineers; Environmental Protection 

Agency (EPA). 

ACTION: Supplemental notice of 

proposed rulemaking. 

SUMMARY: The purpose of this 

supplemental notice is for the 

Environmental Protection Agency (EPA) 

and the Department of the Army 

(agencies) to clarify, supplement and 

seek additional comment on an earlier 

proposal, published on July 27, 2017, to 

repeal the 2015 Rule Defining Waters of 

the United States (‘‘2015 Rule’’), which 

amended portions of the Code of 

Federal Regulations (CFR). As stated in 

the agencies’ July 27, 2017 Notice of 

Proposed Rulemaking (NPRM), the 

agencies propose to repeal the 2015 

Rule and restore the regulatory text that 

existed prior to the 2015 Rule, as 

informed by guidance in effect at that 

time. If this proposal is finalized, the 

regulations defining the scope of federal 

Clean Water Act (CWA) jurisdiction 

would be those portions of the CFR as 

they existed before the amendments 

promulgated in the 2015 Rule. Those 

preexisting regulatory definitions are 

the ones that the agencies are currently 

implementing in light of the agencies’ 

final rule published on February 6, 

2018, adding a February 6, 2020 

applicability date to the 2015 Rule, as 

well as judicial decisions preliminarily 

enjoining and staying the 2015 Rule. 

DATES: Comments must be received on 

or before August 13, 2018. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2017–0203, at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

The agencies may publish any comment 

received to the public docket. Do not 

submit electronically any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The agencies will generally not 

consider comments or comment content 

located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/ 

dockets.commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Michael McDavit, Office of Water 

(4504–T), Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW, Washington, DC 20460; telephone 

number: (202) 566–2428; email address: 

CWAwotus@epa.gov; or Stacey Jensen, 

Regulatory Community of Practice 

(CECW–CO–R), U.S. Army Corps of 

Engineers, 441 G Street NW, 

Washington, DC 201314; telephone 

number: (202) 761–6903; email address: 

USACE_CWA_Rule@usace.army.mil. 

SUPPLEMENTARY INFORMATION: The 

agencies propose to repeal the Clean 

Water Rule: Definition of ‘‘Waters of the 

United States,’’ 80 FR 37054, and 

recodify the regulatory definitions of 

‘‘waters of the United States’’ that 

existed prior to the August 28, 2015 

effective date of the 2015 Rule. Those 

preexisting regulatory definitions are 

the ones that the agencies are currently 

implementing in light of the agencies’ 

final rule (83 FR 5200, February 6, 

2018), which added a February 6, 2020 

applicability date to the 2015 Rule. 

Judicial decisions currently enjoin the 

2015 Rule in 24 States as well. If this 

proposal is finalized, the agencies 

would administer the regulations 

promulgated in 1986 and 1988 in 

portions of 33 CFR part 328 and 40 CFR 

parts 110, 112, 116, 117, 122, 230, 232, 

300, 302, and 401, and would continue 

to interpret the statutory term ‘‘waters of 

the United States’’ to mean the waters 

covered by those regulations, as the 

agencies are currently implementing 

those regulations consistent with 

Supreme Court decisions and 

longstanding practice, as informed by 

applicable guidance documents, 

training, and experience. 

State, tribal, and local governments 

have well-defined and established 

relationships with the federal 

government in implementing CWA 

programs. Those relationships are not 

affected by this proposed rule, which 

would not alter the jurisdiction of the 

CWA compared to the regulations and 

practice that the agencies are currently 

applying. The proposed rule would 

permanently repeal the 2015 Rule, 

which amended the longstanding 

definition of ‘‘waters of the United 

States’’ in portions of 33 CFR part 328 

and 40 CFR parts 110, 112, 116, 117, 

122, 230, 232, 300, 302, and 401, and 

restore the regulations as they existed 

prior to the amendments in the 2015 

Rule.1

The agencies are issuing this 

supplemental notice of proposed 

rulemaking (SNPRM) to clarify, 

supplement and give interested parties 

an opportunity to comment on certain 

important considerations and reasons 

for the agencies’ proposal. The agencies 

clarify herein the scope of the 

solicitation of comment and the actions 

proposed. In response to the July 27, 

2017 NPRM, (82 FR 34899), the agencies 

received numerous comments on the 

impacts of repealing the 2015 Rule in its 

entirety. Others commented in favor of 

retaining the 2015 Rule, either as 

written or with modifications. Some 

commenters interpreted the proposal as 

restricting their opportunity to provide 

such comments either supporting or 

opposing repeal of the 2015 Rule. In this 

SNPRM, the agencies reiterate that this 

regulatory action is intended to 

permanently repeal the 2015 Rule in its 

entirety, and we invite all interested 

persons to comment on whether the 

2015 Rule should be repealed. 


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The agencies are also issuing this 

SNPRM to clarify that the rule adding 

an applicability date to the 2015 Rule 

does not change the agencies’ decision 

to proceed with this proposed repeal. 

For the reasons discussed in this notice, 

the agencies propose to conclude that 

regulatory certainty would be best 

served by repealing the 2015 Rule and 

recodifying the scope of CWA 

jurisdiction currently in effect. The 

agencies propose to conclude that rather 

than achieving its stated objectives of 

increasing predictability and 

consistency under the CWA, see 80 FR 

37055, the 2015 Rule is creating 

significant confusion and uncertainty 

for agency staff, regulated entities, 

states, tribes, local governments, and the 

public, particularly in view of court 

decisions that have cast doubt on the 

legal viability of the rule. To provide for 

greater regulatory certainty, the agencies 

propose to repeal the 2015 Rule and to 

recodify the pre-2015 regulations, 

thereby maintaining a longstanding 

regulatory framework that is more 

familiar to and better-understood by the 

agencies, states, tribes, local 

governments, regulated entities, and the 

public. 

Further, court rulings against the 2015 

Rule suggest that the interpretation of 

the ‘‘significant nexus’’ standard as 

applied in the 2015 Rule may not 

comport with and accurately implement 

the legal limits on CWA jurisdiction 

intended by Congress and reflected in 

decisions of the Supreme Court. At a 

minimum, the agencies find that the 

interpretation of the statute adopted in 

the 2015 Rule is not compelled and 

raises significant legal questions. In 

light of the substantial uncertainty 

associated with the 2015 Rule, 

including by virtue of a potential stay, 

injunction, or vacatur of the 2015 Rule 

in various legal challenges, as well as 

the substantial experience the agencies 

already possess implementing the 

preexisting regulations that the agencies 

are implementing today, the agencies 

propose to conclude that administrative 

goals of regulatory certainty would be 

best served by repealing the 2015 Rule. 

The agencies also propose to conclude 

that the 2015 Rule exceeded the 

agencies’ authority under the CWA by 

adopting such an interpretation of 

Justice Kennedy’s ‘‘significant nexus’’ 

standard articulated in Rapanos v. 

United States and Carabell v. United 

States, 547 U.S. 715 (2006) (‘‘Rapanos’’) 

as to be inconsistent with important 

aspects of that opinion and to cover 

waters outside the scope of the Act, 

even though that concurring opinion 

was identified as the basis for the 

significant nexus standard articulated in 

the 2015 Rule. The agencies also 

propose to conclude that, contrary to 

conclusions articulated in support of the 

rule, the 2015 Rule appears to have 

expanded the meaning of tributaries and 

adjacent wetlands to include waters 

well beyond those regulated by the 

agencies under the preexisting 

regulations, as applied by the agencies 

following decisions of the Supreme 

Court in Rapanos and Solid Waste 

Agency of Northern Cook County v. U.S. 

Army Corps of Engineers, 531 U.S. 159 

(2001) (‘‘SWANCC’’). The agencies 

believe that the 2015 Rule may have 

altered the balance of authorities 

between the federal and State 

governments, contrary to the agencies’ 

statements in promulgating the 2015 

Rule and in contravention of CWA 

section 101(b), 33 U.S.C. 1251(b). 

I. Background 

The agencies refer the public to the 

Executive Summary for the NPRM, 82 

FR 34899 (July 27, 2017), and 

incorporate it by reference herein. 

A. The 2015 Rule 

On June 29, 2015, the agencies issued 

a final rule (80 FR 37054) amending 

various portions of the CFR that set 

forth definitions of ‘‘waters of the 

United States,’’ a term contained in the 

CWA section 502(7) definition of 

‘‘navigable waters,’’ 33 U.S.C. 1362(7). 

A primary purpose of the 2015 Rule 

was to ‘‘increase CWA program 

predictability and consistency by 

clarifying the scope of ‘waters of the 

United States’ protected under the Act.’’ 

80 FR 37054. The 2015 Rule attempted 

to clarify the geographic scope of the 

CWA by placing waters into three 

categories: (A) Waters that are 

categorically ‘‘jurisdictional by rule’’ in 

all instances (i.e., without the need for 

any additional analysis); (B) waters that 

are subject to case-specific analysis to 

determine whether they are 

jurisdictional, and (C) waters that are 

categorically excluded from jurisdiction. 

Waters that are ‘‘jurisdictional by rule’’ 

include (1) waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; (2) interstate waters, including 

interstate wetlands; (3) the territorial 

seas; (4) impoundments of waters 

otherwise identified as jurisdictional; 

(5) tributaries of the first three categories 

of ‘‘jurisdictional by rule’’ waters; and 

(6) waters adjacent to a water identified 

in the first five categories of 

‘‘jurisdictional by rule’’ waters, 

including wetlands, ponds, lakes, 

oxbows, impoundments, and similar 

waters. See id. at 37104. 

The 2015 Rule added new definitions 

of key terms such as ‘‘tributaries’’ and 

revised previous definitions of terms 

such as ‘‘adjacent’’ (by adding a new 

definition of ‘‘neighboring’’ that is used 

in the definition of ‘‘adjacent’’) that 

would determine whether waters are 

‘‘jurisdictional by rule.’’ See id. at 

37105. Specifically, a tributary under 

the 2015 Rule is a water that contributes 

flow, either directly or through another 

water, to a water identified in the first 

three categories of ‘‘jurisdictional by 

rule’’ waters and that is characterized by 

the presence of the ‘‘physical 

indicators’’ of a bed and banks and an 

ordinary high water mark. ‘‘These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

therefore an ordinary high water mark, 

and thus to qualify as a tributary.’’ Id. 

The 2015 Rule does not delineate 

jurisdiction specifically based on 

categories with established scientific 

meanings such as ephemeral, 

intermittent, and perennial waters that 

are based on the source of the water and 

nature of the flow. See id. at 37076 

(‘‘Under the rule, flow in the tributary 

may be perennial, intermittent, or 

ephemeral.’’). Under the 2015 Rule, 

tributaries need not be demonstrated to 

possess any specific volume, frequency, 

or duration of flow, or to contribute flow 

to a traditional navigable water in any 

given year or specific time period. 

Tributaries under the 2015 Rule can be 

natural, man-altered, or man-made, and 

they do not lose their status as a 

tributary if, for any length, there are one 

or more constructed breaks (such as 

bridges, culverts, pipes, or dams), or one 

or more natural breaks (such as 

wetlands along the run of a stream, 

debris piles, boulder fields, or a stream 

that flows underground) so long as a bed 

and banks and an ordinary high water 

mark can be identified upstream of the 

break. Id. at 37105–06. 

In the 2015 Rule, the agencies did not 

expressly amend the longstanding 

definition of ‘‘adjacent’’ (defined as 

‘‘bordering, contiguous, or 

neighboring’’), but the agencies added a 

new definition of ‘‘neighboring’’ that 

impacted the interpretation of 

‘‘adjacent.’’ The 2015 Rule defined 

‘‘neighboring’’ to encompass all waters 

located within 100 feet of the ordinary 

high water mark of a category (1) 

through (5) ‘‘jurisdictional by rule’’ 

water; all waters located within the 100- 

year floodplain of a category (1) through 

(5) ‘‘jurisdictional by rule’’ water and 

not more than 1,500 feet from the 

ordinary high water mark of such water; 


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2 In this notice, a ‘‘primary’’ water is a category 

(1) through (3) ‘‘jurisdictional by rule’’ water. 

3See U.S. EPA and U.S. Army Corps of Engineers. 

Clean Water Act Jurisdiction Following the U.S. 

Supreme Court’s Decision in Rapanos v. United 

States & Carabell v. United States at 1 (Dec. 2, 2008) 

(‘‘Rapanos Guidance’’), available at https://

www.epa.gov/sites/production/files/2016-02/ 

documents/cwa_jurisdiction_following_

rapanos120208.pdf. The agencies acknowledge that 

the Rapanos Guidance did not impose legally 

binding requirements, see id. at 4 n.17, but believe 

that this guidance is relevant to the discussion in 

this notice. 

4 ‘‘[T]he vast majority of the nation’s water 

features are located within 4,000 feet of a covered 

tributary, traditional navigable water, interstate 

water, or territorial sea.’’ U.S. EPA and Department 

of the Army. Economic Analysis of the EPA-Army 

Clean Water Rule at 11 (May 20, 2015) (‘‘2015 Rule 

Economic Analysis’’) (Docket ID: EPAHQ–OW– 

2011–0880–20866), available at https://

www.regulations.gov/document?D=EPA-HQ-OW2011-0880-20866. 

5Alabama, Alaska, Arizona, Arkansas, Colorado, 

Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, 

Louisiana, Michigan, Mississippi, Missouri, 

Montana, Nebraska, Nevada, New Mexico 

(Environment Department and State Engineer), 

North Carolina (Department of Environment and 

Natural Resources), North Dakota, Ohio, Oklahoma, 

South Carolina, South Dakota, Tennessee, Texas, 

Utah, West Virginia, Wisconsin, and Wyoming. 

Iowa joined the legal challenge later in the process, 

bringing the total to 32 States. 

6U.S. District Courts for the Northern and 

Southern District of Georgia, District of Minnesota, 

District of North Dakota, Southern District of Ohio, 

Northern District of Oklahoma, Southern District of 

Texas, District of Arizona, Northern District of 

Florida, District of the District of Columbia, 

Western District of Washington, Northern District of 

California, and Northern District of West Virginia. 

7U.S. Court of Appeals for the Second, Fifth, 

Sixth, Eighth, Ninth, Tenth, Eleventh, and District 

of Columbia Circuits. 

8Alaska, Arizona, Arkansas, Colorado, Idaho, 

Missouri, Montana, Nebraska, Nevada, New 

Mexico, North Dakota, South Dakota, and 

Wyoming. Iowa’s motion to intervene in the case 

was granted after issuance of the preliminary 

injunction. 

all waters located within 1,500 feet of 

the high tide line of a category (1) 

though (3) ‘‘jurisdictional by rule’’ 

water; and all waters within 1,500 feet 

of the ordinary high water mark of the 

Great Lakes. Id. at 37105. The entire 

water is considered neighboring if any 

portion of it lies within one of these 

zones. See id. This regulatory text did 

not appear in the proposed rule, and 

thus the agencies did not receive public 

comment on these numeric measures. 

In addition to the six categories of 

‘‘jurisdictional by rule’’ waters, the 2015 

Rule identifies certain waters that are 

subject to a case-specific analysis to 

determine if they have a ‘‘significant 

nexus’’ to a water that is jurisdictional. 

Id. at 37104–05. The first category 

consists of five specific types of waters 

in specific regions of the country: 

Prairie potholes, Carolina and Delmarva 

bays, pocosins, western vernal pools in 

California, and Texas coastal prairie 

wetlands. Id. at 37105. The second 

category consists of all waters located 

within the 100-year floodplain of any 

category (1) through (3) ‘‘jurisdictional 

by rule’’ water and all waters located 

within 4,000 feet of the high tide line or 

ordinary high water mark of any 

category (1) through (5) ‘‘jurisdictional 

by rule’’ water. Id. These quantitative 

measures did not appear in the 

proposed rule, and thus the agencies did 

not receive public comment on these 

specific measures. 

The 2015 Rule defines ‘‘significant 

nexus’’ to mean a water, including 

wetlands, that either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

category (1) through (3) ‘‘jurisdictional 

by rule’’ water. 80 FR 37106. ‘‘For an 

effect to be significant, it must be more 

than speculative or insubstantial.’’ Id. 

The term ‘‘in the region’’ means ‘‘the 

watershed that drains to the nearest’’ 

primary water.2 Id. This definition is 

different than the test articulated by the 

agencies in their 2008 Rapanos 

Guidance.3 That guidance interpreted 

‘‘similarly situated’’ to include all 

wetlands (not waters) adjacent to the 

same tributary, a much less expansive 

treatment of similarly situated waters 

than in the 2015 Rule. 

Under the 2015 Rule, to determine 

whether a water, alone or in 

combination with similarly situated 

waters across a watershed, has such an 

effect, one must look at nine functions 

such as sediment trapping, runoff 

storage, provision of life cycle 

dependent aquatic habitat, and other 

functions. It is sufficient for determining 

whether a water has a significant nexus 

if any single function performed by the 

water, alone or together with similarly 

situated waters in the watershed, 

contributes significantly to the 

chemical, physical, or biological 

integrity of the nearest category (1) 

through (3) ‘‘jurisdictional by rule’’ 

water. Id. Taken together, the 

enumeration of the nine functions and 

the more expansive consideration of 

‘‘similarly situated’’ in the 2015 Rule 

could mean that the vast majority of 

water features in the United States may 

come within the jurisdictional purview 

of the federal government.4 Indeed, the 

agencies stated in the 2015 Rule that the 

‘‘the chemical, physical, and biological 

integrity of downstream waters is 

directly related to the aggregate 

contribution of upstream waters that 

flow into them, including any 

tributaries and connected wetlands.’’ Id. 

at 37066. 

The agencies also retained exclusions 

from the definition of ‘‘waters of the 

United States’’ for prior converted 

cropland and waste treatment systems. 

Id. at 37105. In addition, the agencies 

codified several exclusions that 

reflected longstanding agency practice, 

and added others such as ‘‘puddles’’ 

and ‘‘swimming pools’’ in response to 

concerns raised by stakeholders during 

the public comment period on the 

proposed 2015 Rule. Id. at 37096–98, 

37105. 

B. Legal Challenges to the 2015 Rule 

Following the 2015 Rule’s 

publication, 31 States 5 and 53 non-state 

parties, including environmental 

groups, and groups representing 

farming, recreational, forestry, and other 

interests, filed complaints and petitions 

for review in multiple federal district 6

and appellate 7 courts challenging the 

2015 Rule. In those cases, the 

challengers alleged procedural 

deficiencies in the development and 

promulgation of the 2015 Rule and 

substantive deficiencies in the 2015 

Rule itself. Some challengers argued 

that the 2015 Rule was too expansive 

while others argued that it excluded too 

many waters from federal jurisdiction. 

The day before the 2015 Rule’s 

August 28, 2015 effective date, the U.S. 

District Court for the District of North 

Dakota preliminarily enjoined the 2015 

Rule in the 13 States that challenged the 

rule in that court.8 The district court 

found those States were ‘‘likely to 

succeed’’ on the merits of their 

challenge to the 2015 Rule because, 

among other reasons, ‘‘it appears likely 

that the EPA has violated its 

Congressional grant of authority in its 

promulgation of the Rule.’’ In particular, 

the court noted concern that the 2015 

Rule’s definition of tributary ‘‘includes 

vast numbers of waters that are unlikely 

to have a nexus to navigable waters.’’ 

Further, the court found that ‘‘it appears 

likely that the EPA failed to comply 

with [Administrative Procedure Act 

(APA)] requirements when 

promulgating the Rule,’’ suggesting that 

certain distance-based measures were 

not a logical outgrowth of the proposal 

to the 2015 Rule. North Dakota v. EPA, 

127 F. Supp. 3d 1047, 1051, 1056, 1058 

(D.N.D. 2015). No party sought an 

interlocutory appeal. 

The petitions for review filed in the 

courts of appeals were consolidated in 

the U.S. Court of Appeals for the Sixth 

Circuit. In that litigation, state and 

industry petitioners raised concerns 

about whether the 2015 Rule violates 

the Constitution and the CWA and 

whether its promulgation violated 


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procedural requirements under the APA 

and other statutes. Environmental 

petitioners also challenged the 2015 

Rule, including exclusions therein. On 

October 9, 2015, approximately six 

weeks after the 2015 Rule took effect in 

the 37 States that were not subject to the 

preliminary injunction issued by the 

District of North Dakota, the Sixth 

Circuit stayed the 2015 Rule nationwide 

after finding, among other things, that 

State petitioners had demonstrated ‘‘a 

substantial possibility of success on the 

merits of their claims.’’ In re EPA & 

Dep’t of Def. Final Rule, 803 F.3d 804 

(6th Cir. 2015) (‘‘In re EPA’’). 

On January 13, 2017, the U.S. 

Supreme Court granted certiorari on the 

question of whether the courts of 

appeals have original jurisdiction to 

review challenges to the 2015 Rule. See 

Nat’l Ass’n of Mfrs. v. Dep’t of Defense, 

137 S. Ct. 811 (2017). The Sixth Circuit 

granted petitioners’ motion to hold in 

abeyance the briefing schedule in the 

litigation challenging the 2015 Rule 

pending a Supreme Court decision on 

the question of the court of appeals’ 

jurisdiction. On January 22, 2018, the 

Supreme Court, in a unanimous 

opinion, held that the 2015 Rule is 

subject to direct review in the district 

courts. Nat’l Ass’n of Mfrs. v. Dep’t of 

Def., 138 S. Ct. 617, 624 (2018). 

Throughout the pendency of the 

Supreme Court litigation (and for a short 

time thereafter), the Sixth Circuit’s 

nationwide stay remained in effect. In 

response to the Supreme Court’s 

decision, on February 28, 2018, the 

Sixth Circuit lifted the stay and 

dismissed the corresponding petitions 

for review. See In re Dep’t of Def. & EPA 

Final Rule, 713 Fed. App’x 489 (6th Cir. 

2018). 

Since the Supreme Court’s 

jurisdictional ruling, district court 

litigation regarding the 2015 Rule has 

resumed. At this time, the 2015 Rule 

continues to be subject to a preliminary 

injunction issued by the District of 

North Dakota as to 13 States: Alaska, 

Arizona, Arkansas, Colorado, Idaho, 

Missouri, Montana, Nebraska, Nevada, 

North Dakota, South Dakota, Wyoming, 

and New Mexico. The 2015 Rule also is 

subject to a preliminary injunction 

issued by the U.S. District Court for the 

Southern District of Georgia as to 11 

more States: Georgia, Alabama, Florida, 

Indiana, Kansas, Kentucky, North 

Carolina, South Carolina, Utah, West 

Virginia, and Wisconsin. See Georgia v. 

Pruitt, No. 15–cv–79 (S.D. Ga.). In 

another action, the U.S. District Court 

for the Southern District of Texas is 

considering preliminary injunction 

motions filed by parties including the 

States of Texas, Louisiana, and 

Mississippi. See Texas v. EPA, No. 

3:15–cv–162 (S.D. Tex.); Am. Farm 

Bureau Fed’n et al. v. EPA, No. 3:15–cv– 

165 (S.D. Tex.). At least three additional 

States are seeking a preliminary 

injunction in the U.S. District Court for 

the Southern District of Ohio as well. 

See, e.g., States’ Supplemental 

Memorandum in Support of Preliminary 

Injunction, Ohio v. EPA, No. 2:15–cv– 

02467 (S.D. Ohio June 20, 2018) (brief 

filed by the States of Ohio, Michigan, 

and Tennessee in support of the States’ 

motion for a preliminary injunction 

against the 2015 Rule). 

C. Executive Order 13778, the Notice of 

Proposed Rulemaking, and the 

Applicability Date Rule 

The agencies are engaged in a twostep process intended to review and 

repeal or revise, as appropriate and 

consistent with law, the definition of 

‘‘waters of the United States’’ as set 

forth in the 2015 Rule. This process 

began in response to Executive Order 

13778 issued on February 28, 2017, by 

the President entitled ‘‘Restoring the 

Rule of Law, Federalism, and Economic 

Growth by Reviewing the ‘Waters of the 

United States’ Rule.’’ Section 1 of the 

Executive Order states, ‘‘[i]t is in the 

national interest to ensure the Nation’s 

navigable waters are kept free from 

pollution, while at the same time 

promoting economic growth, 

minimizing regulatory uncertainty, and 

showing due regard for the roles of the 

Congress and the States under the 

Constitution.’’ The Order directed the 

EPA and the Army to review the 2015 

Rule for consistency with the policy 

outlined in Section 1 of the Order and 

to issue a proposed rule rescinding or 

revising the 2015 Rule as appropriate 

and consistent with law (Section 2). The 

Executive Order also directed the 

agencies to ‘‘consider interpreting the 

term ‘navigable waters’ . . . in a manner 

consistent with’’ Justice Scalia’s 

plurality opinion in Rapanos (Section 

3). 

On March 6, 2017, the agencies 

published a notice of intent to review 

the 2015 Rule and provide notice of a 

forthcoming proposed rulemaking 

consistent with the Executive Order. 82 

FR 12532. Shortly thereafter, the 

agencies announced that they would 

implement the Executive Order in a 

two-step approach. On July 27, 2017, 

the agencies published a NPRM (82 FR 

34899) that proposed to rescind the 

2015 Rule and restore the regulatory text 

that governed prior to the promulgation 

of the 2015 Rule, which the agencies 

have been implementing since the 

judicial stay of the 2015 Rule consistent 

with Supreme Court decisions and 

informed by applicable guidance 

documents and longstanding agency 

practice. The agencies invited comment 

on the NPRM over a 62-day period. 

Shortly after the Supreme Court 

decided that the courts of appeals do 

not have original jurisdiction to review 

challenges to the 2015 Rule and directed 

the Sixth Circuit to dismiss the 

consolidated challenges to the 2015 

Rule for lack of jurisdiction, the 

agencies issued a final rule (83 FR 5200, 

Feb. 6, 2018), after providing notice and 

an opportunity for public comment, that 

added an applicability date to the 2015 

Rule. The applicability date was 

established as February 6, 2020. When 

adding the applicability date to the 2015 

Rule, the agencies clarified that they 

will continue to implement nationwide 

the previous regulatory definition of 

‘‘waters of the United States,’’ consistent 

with the practice and procedures the 

agencies implemented before and 

immediately following the issuance of 

the 2015 Rule pursuant to the 

preliminary injunction issued by the 

District of North Dakota and the 

nationwide stay issued by the Sixth 

Circuit. The agencies further explained 

that the final applicability date rule 

would ensure regulatory certainty and 

consistent implementation of the CWA 

nationwide while the agencies 

reconsider the 2015 Rule and 

potentially pursue further rulemaking to 

develop a new definition of ‘‘waters of 

the United States.’’ The applicability 

date rule was challenged in a number of 

district courts. Generally, the challenges 

raise concerns that the agencies’ action 

was arbitrary and capricious because the 

agencies did not address substantive 

comments regarding the 2015 Rule, as 

well as procedural concerns with 

respect to the length of the public 

comment period for the proposed 

applicability date rule. At this time, 

these challenges remain pending in the 

district courts where they were filed. 

D. Comments on the Original Notice of 

Proposed Rulemaking 

The agencies accepted comments on 

the NPRM from July 27, 2017, through 

September 27, 2017. The agencies 

received more than 685,000 comments 

on the NPRM from a broad spectrum of 

interested parties. The agencies are 

continuing to review those extensive 

comments. Some commenters expressed 

support for the agencies’ proposal to 

repeal the 2015 Rule, stating, among 

other things, that the 2015 Rule exceeds 

the agencies’ statutory authority. Other 

commenters opposed the proposal, 

stating, among other things, that 

repealing the 2015 Rule will increase 


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9The FWPCA is commonly referred to as the 

CWA following the 1977 amendments to the 

FWPCA. Public Law 95–217, 91 Stat. 1566 (1977). 

For ease of reference, the agencies will generally 

refer to the FWPCA in this notice as the CWA or 

the Act. 

regulatory uncertainty and adversely 

impact water quality. 

Based on the agencies’ careful and 

ongoing review of the comments 

submitted in response to the NPRM, the 

agencies believe that it is in the public 

interest to provide further explanation 

and allow interested parties additional 

opportunity to comment on the 

proposed repeal of the 2015 Rule. 

Because some commenters interpreted 

the NPRM as restricting their ability to 

comment on the legal and policy 

reasons for or against the repeal of the 

2015 Rule while others submitted 

comments addressing these topics, the 

agencies wish to make clear that 

comments on that subject are solicited. 

Additionally, some commenters 

appeared to be confused by whether the 

agencies proposed a temporary or 

interim, as opposed to a permanent, 

repeal of the 2015 Rule. While the 

agencies did refer to the July 2017 

proposal as an ‘‘interim action’’ (82 FR 

34902), that was in the context of 

explaining that the proposal to repeal 

the 2015 Rule is the first step of a twostep process, as described above, and 

that the agencies are planning to take 

the additional, second step of 

conducting a separate notice and 

comment rulemaking to propose a new 

definition of ‘‘waters of the United 

States.’’ In this notice, the agencies are 

clarifying that, regardless of the timing 

or ultimate outcome of that additional 

rulemaking, the agencies are proposing 

a permanent repeal of the 2015 Rule at 

this stage. This was also our intent in 

the NPRM. Finally, some commenters 

did not fully understand the precise 

action the NPRM proposed to take, e.g., 

repealing, staying, or taking some other 

action with respect to the 2015 Rule. 

The agencies are issuing this SNPRM 

and are inviting all interested persons to 

comment on whether the agencies 

should repeal the 2015 Rule and 

recodify the regulations currently being 

implemented by the agencies. 

E. Comments on This Supplemental 

Notice of Proposed Rulemaking 

As discussed in the next sections, the 

agencies are proposing to permanently 

repeal the 2015 Rule. The agencies 

welcome comment on all issues that are 

relevant to the consideration of whether 

to repeal the 2015 Rule. In response to 

the initial NPRM, many commenters 

have already provided comment on 

considerations and issues that weigh in 

favor of or against repeal, including 

many of the issues articulated below. 

The agencies will consider all of those 

previously submitted comments, in 

addition to any new comments 

submitted in response to this SNPRM, 

in taking a final action on this 

rulemaking. As such, commenters need 

not resubmit comments already 

provided in response to the agencies’ 

July 27, 2017 NPRM (82 FR 34899). 

II. Proposal To Repeal the 2015 Rule 

A. Legal Authority To Repeal 

The agencies’ ability to repeal an 

existing regulation through notice-andcomment rulemaking is well-grounded 

in the law. The APA defines rulemaking 

to mean ‘‘agency process for 

formulating, amending, or repealing a 

rule.’’ 5 U.S.C. 551(5). The CWA 

complements this authority by 

providing the Administrator with broad 

authority to ‘‘prescribe such regulations 

as are necessary to carry out the 

functions under this Act.’’ 33 U.S.C. 

1361(a). This broad authority includes 

regulations that repeal or revise CWA 

implementing regulations promulgated 

by a prior administration. 

The Supreme Court has made clear 

that ‘‘[a]gencies are free to change their 

existing policies as long as they provide 

a reasoned explanation for the change,’’ 

and ‘‘[w]hen an agency changes its 

existing position, it ‘need not always 

provide a more detailed justification 

than what would suffice for a new 

policy created on a blank slate.’ ’’ 

Encino Motorcars, LLC v. Navarro, 136 

S. Ct. 2117, 2125 (2016) (citations 

omitted). The NPRM discussed how the 

agencies may revise or repeal the 

regulatory definition of ‘‘waters of the 

United States’’ so long as the agencies’ 

action is based on a reasoned 

explanation. See 82 FR 34901. The 

agencies can do so based on changes in 

circumstance, or changes in statutory 

interpretation or policy judgments. See, 

e.g., FCC v. Fox Television Stations, 

Inc., 556 U.S. 502, 514–15 (2009); Ctr. 

for Sci. in Pub. Interest v. Dep’t of 

Treasury, 797 F.2d 995, 998–99 & n.1 

(D.C. Cir. 1986). The agencies’ 

interpretation of the statutes they 

administer, such as the CWA, are not 

‘‘instantly carved in stone’’; quite the 

contrary, the agencies ‘‘must consider 

varying interpretations and the wisdom 

of [their] policy on a continuing basis, 

. . . for example, in response to . . . a 

change in administrations.’’ Nat’l Cable 

& Telecommc’ns Ass’n v. Brand X 

Internet Servs., 545 U.S. 967, 981–82 

(2005) (‘‘Brand X’’) (internal quotation 

marks omitted) (quoting Chevron 

U.S.A., Inc. v. NRDC, 467 U.S. 837, 863– 

64 (1984)) (citing Motor Vehicle Mfrs. 

Ass’n v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29, 59 (1983) (Rehnquist, J., 

concurring in part and dissenting in 

part)). The Supreme Court and lower 

courts have acknowledged an agency’s 

ability to repeal regulations 

promulgated by a prior administration 

based on changes in agency policy 

where ‘‘the agency adequately explains 

the reasons for a reversal of policy.’’ See 

Brand X, 545 U.S. at 981. A revised 

rulemaking based ‘‘on a reevaluation of 

which policy would be better in light of 

the facts’’ is ‘‘well within an agency’s 

discretion,’’ and ‘‘[a] change in 

administration brought about by the 

people casting their votes is a perfectly 

reasonable basis for an executive 

agency’s reappraisal’’ of its regulations 

and programs. Nat’l Ass’n of Home 

Builders v. EPA, 682 F.3d 1032, 1038 & 

1043 (D.C. Cir. 2012) (‘‘NAHB’’). 

B. Legal Background 

1. The Clean Water Act 

Congress amended the Federal Water 

Pollution Control Act (FWPCA), or 

Clean Water Act (CWA) as it is 

commonly called,9 in 1972 to address 

longstanding concerns regarding the 

quality of the nation’s waters and the 

federal government’s ability to address 

those concerns under existing law. Prior 

to 1972, the ability to control and 

redress water pollution in the nation’s 

waters largely fell to the Corps under 

the Rivers and Harbors Act of 1899. 

Congress had also enacted the Water 

Pollution Control Act of 1948, Public 

Law 80–845, 62 Stat. 1155 (June 30, 

1948), to address interstate water 

pollution, and subsequently amended 

that statute in 1956 (giving the statute is 

current formal name), 1961, and 1965. 

The early versions of the CWA 

promoted the development of pollution 

abatement programs, required states to 

develop water quality standards, and 

authorized the federal government to 

bring enforcement actions to abate water 

pollution. 

These early statutory efforts, however, 

proved inadequate to address the 

decline in the quality of the nation’s 

waters, see City of Milwaukee v. Illinois, 

451 U.S. 304, 310 (1981), so Congress 

performed a ‘‘total restructuring’’ and 

‘‘complete rewriting’’ of the existing 

statutory framework in 1972, id. at 317 

(quoting legislative history of 1972 

amendments). That restructuring 

resulted in the enactment of a 

comprehensive scheme designed to 

prevent, reduce, and eliminate pollution 

in the nation’s waters generally, and to 

regulate the discharge of pollutants into 

navigable waters specifically. See, e.g., 


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S.D. Warren Co. v. Maine Bd. of Envtl. 

Prot., 547 U.S. 370, 385 (2006) (‘‘[T]he 

Act does not stop at controlling the 

‘addition of pollutants,’ but deals with 

‘pollution’ generally[.]’’). 

The objective of the new statutory 

scheme was ‘‘to restore and maintain 

the chemical, physical, and biological 

integrity of the Nation’s waters.’’ 33 

U.S.C. 1251(a). In order to meet that 

objective, Congress declared two 

national goals: (1) ‘‘that the discharge of 

pollutants into the navigable waters be 

eliminated by 1985;’’ and (2) ‘‘that 

wherever attainable, an interim goal of 

water quality which provides for the 

protection and propagation of fish, 

shellfish, and wildlife and provides for 

recreation in and on the water be 

achieved by July 1, 1983. . . .’’ Id. at 

1251(a)(1)–(2). 

Congress established several key 

policies that direct the work of the 

agencies to effectuate those goals. For 

example, Congress declared as a 

national policy ‘‘that the discharge of 

toxic pollutants in toxic amounts be 

prohibited; . . . that Federal financial 

assistance be provided to construct 

publicly owned waste treatment works; 

. . . that areawide waste treatment 

management planning processes be 

developed and implemented to assure 

adequate control of sources of pollutants 

in each State; . . . [and] that programs 

for the control of nonpoint sources of 

pollution be developed and 

implemented in an expeditious manner 

so as to enable the goals of this Act to 

be met through the control of both point 

and nonpoint sources of pollution.’’ Id. 

at 1251(a)(3)–(7). 

Congress envisioned a major role for 

the states in implementing the CWA, 

and the CWA also recognizes the 

importance of preserving the states’ 

independent authority and 

responsibility in this area. The CWA 

balances the traditional power of states 

to regulate land and water resources 

within their borders with the need for 

a federal water quality regulation to 

protect the waters of the United States. 

For example, the statute reflects ‘‘the 

policy of the Congress to recognize, 

preserve, and protect the primary 

responsibilities and rights of States to 

prevent, reduce, and eliminate 

pollution’’ and ‘‘to plan the 

development and use . . . of land and 

water resources. . . .’’ Id. at 1251(b). 

Congress also declared as a national 

policy that states manage the major 

construction grant program and 

implement the core permitting programs 

authorized by the statute, among other 

responsibilities. Id. Congress added that 

‘‘nothing in this Act shall . . . be 

construed as impairing or in any 

manner affecting any right or 

jurisdiction of the States with respect to 

the waters (including boundary waters) 

of such States.’’ Id. at 1370. Congress 

also pledged to provide technical 

support and financial aid to the states 

‘‘in connection with the prevention, 

reduction, and elimination of 

pollution.’’ Id. at 1251(b). 

To carry out these policies, Congress 

broadly defined ‘‘pollution’’ to mean 

‘‘the man-made or man-induced 

alteration of the chemical, physical, 

biological, and radiological integrity of 

water,’’ id. at 1362(19), to parallel the 

broad objective of the Act ‘‘to restore 

and maintain the chemical, physical, 

and biological integrity of the Nation’s 

waters,’’ id. at 1251(a). Congress then 

crafted a non-regulatory statutory 

framework to provide technical and 

financial assistance to the states to 

prevent, reduce, and eliminate pollution 

in the broader set of the nation’s waters. 

For example, section 105 of the Act, 

‘‘Grants for research and development,’’ 

authorized EPA ‘‘to make grants to any 

State or States or interstate agency to 

demonstrate, in river basins or portions 

thereof, advanced treatment and 

environmental enhancement techniques 

to control pollution from all sources, 

. . . including nonpoint sources, . . . 

[and] for research and demonstration 

projects for prevention of pollution of 

any waters by industry including, but 

not limited to, the prevention, 

reduction, and elimination of the 

discharge of pollutants.’’ 33 U.S.C. 

1255(b)–(c) (emphases added); see also 

id. at 1256(a) (authorizing EPA to issue 

‘‘grants to States and to interstate 

agencies to assist them in administering 

programs for the prevention, reduction, 

and elimination of pollution’’). Section 

108, ‘‘Pollution control in the Great 

Lakes,’’ authorized EPA to enter into 

agreements with any state to develop 

plans for the ‘‘elimination or control of 

pollution, within all or any part of the 

watersheds of the Great Lakes.’’ Id. at 

1258(a) (emphasis added); see also id. at 

1268(a)(3)(C) (defining the ‘‘Great Lakes 

System’’ as ‘‘all the streams, rivers, 

lakes, and other bodies of water within 

the drainage basin of the Great Lakes’’). 

Similar broad pollution control 

programs were created for other major 

watersheds, including, for example, the 

Chesapeake Bay, see id. at 1267(a)(3), 

Long Island Sound, see id. at 

1269(c)(2)(D), and Lake Champlain, see 

id. at 1270(g)(2). 

For the narrower set of the nation’s 

waters identified as ‘‘navigable waters’’ 

or ‘‘the waters of the United States,’’ id. 

at 1362(7), Congress created a federal 

regulatory permitting program designed 

to address the discharge of pollutants 

into those waters. Section 301 contains 

the key regulatory mechanism: ‘‘Except 

as in compliance with this section and 

sections 302, 306, 307, 318, 402, and 

404 of this Act, the discharge of any 

pollutant by any person shall be 

unlawful.’’ Id. at 1311(a). A ‘‘discharge 

of a pollutant’’ is defined to include 

‘‘any addition of any pollutant to 

navigable waters from any point 

source,’’ such as a pipe, ditch or other 

‘‘discernible, confined and discrete 

conveyance.’’ Id. at 1362(12), (14) 

(emphasis added). The term 

‘‘pollutant,’’ as compared to the broader 

term ‘‘pollution,’’ id. at 1362(19), means 

‘‘dredged spoil, solid waste, incinerator 

residue, sewage, garbage, sewage sludge, 

munitions, chemical wastes, biological 

materials, radioactive materials, heat, 

wrecked or discarded equipment, rock, 

sand, cellar dirt and industrial, 

municipal, and agricultural waste 

discharged into water.’’ Id. at 1362(6). 

Thus, it is unlawful to discharge 

pollutants into navigable waters 

(defined in the Act as ‘‘the waters of the 

United States’’) from a point source 

unless the discharge complies with 

certain enumerated sections of the 

CWA, including obtaining 

authorizations to discharge pollutants 

pursuant to the section 402 National 

Pollutant Discharge Elimination System 

(NPDES) permit program and the 

section 404 dredged or fill material 

permit program. See id. at 1342 and 

1344. 

Under this statutory scheme, the 

states are responsible for developing 

water quality standards for waters of the 

United States within their borders and 

reporting on the condition of those 

waters to EPA every two years. Id. at 

1313, 1315. States are also responsible 

for developing total maximum daily 

loads (TMDLs) for waters that are not 

meeting established water quality 

standards and must submit those 

TMDLs to EPA for approval. Id. at 

1313(d). States also have authority to 

issue water quality certifications or 

waive certification for every federal 

permit or license issued within their 

borders that may result in a discharge to 

navigable waters. Id. at 1341. A change 

to the interpretation of ‘‘waters of the 

United States’’ may change the scope of 

waters subject to CWA jurisdiction and 

thus may change the scope of waters for 

which states may assume these 

responsibilities under the Act. 

These same regulatory authorities can 

be assumed by Indian tribes under 

section 518 of the CWA, which 

authorizes EPA to treat eligible Indian 

tribes in a manner similar to states for 

a variety of purposes, including 

administering each of the principal 


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10The agencies recognize that individual member 

statements are not a substitute for full congressional 

intent, but they do help provide context for issues 

that were discussed during the legislative debates. 

For a detailed discussion of the legislative history 

of the 1972 CWA amendments, see Albrecht & 

Nickelsburg, Could SWANCC Be Right? A New Look 

at the Legislative History of the Clean Water Act, 

32 ELR 11042 (Sept. 2002). 

11For a detailed discussion of the legislative 

history supporting the enactment of section 404(g), 

see Final Report of the Assumable Waters 

Subcommittee (May 2017), App. F. 

CWA regulatory programs. Id. at 

1377(e). In addition, states and tribes 

retain sovereign authority to protect and 

manage the use of those waters that are 

not navigable waters under the CWA. 

See, e.g., id. at 1251(b), 1251(g), 1370, 

1377(a). Forty-seven states administer 

the CWA section 402 permit program for 

those waters of the United States within 

their boundaries, and two administer 

the section 404 permit program. At 

present, no tribes administer the section 

402 or 404 programs. 

The agencies must develop regulatory 

programs designed to ensure that the 

full statute is implemented as Congress 

intended. See, e.g., Hibbs v. Winn, 542 

U.S. 88, 101 (2004) (‘‘A statute should 

be construed so that effect is given to all 

its provisions, so that no part will be 

inoperative or superfluous, void or 

insignificant.’’). This includes pursuing 

the overall ‘‘objective’’ of the CWA to 

‘‘restore and maintain the chemical, 

physical, and biological integrity of the 

Nation’s waters,’’ 33 U.S.C. 1251(a), 

while implementing the specific 

‘‘policy’’ directives from Congress to, 

among other things, ‘‘recognize, 

preserve, and protect the primary 

responsibilities and rights of States to 

prevent, reduce, and eliminate 

pollution’’ and ‘‘to plan the 

development and use . . . of land and 

water resources,’’ id. at 1251(b). See 

Webster’s II, New Riverside University 

Dictionary (1994) (defining ‘‘policy’’ as 

a ‘‘plan or course of action, as of a 

government[,] designed to influence and 

determine decisions and actions;’’ an 

‘‘objective’’ is ‘‘something worked 

toward or aspired to: Goal’’). To 

maintain that balance, the agencies must 

determine what Congress had in mind 

when it defined ‘‘navigable waters’’ in 

1972 as simply ‘‘the waters of the 

United States’’—and must do so in light 

of, inter alia, the policy directive to 

preserve and protect the states’ rights 

and responsibilities. 

Congress’ authority to regulate 

navigable waters derives from its power 

to regulate the ‘‘channels of interstate 

commerce’’ under the Commerce 

Clause. Gibbons v. Ogden, 22 U.S. (9 

Wheat.) 1 (1824); see also United States 

v. Lopez, 514 U.S. 549, 558–59 (1995) 

(describing the ‘‘channels of interstate 

commerce’’ as one of three areas of 

congressional authority under the 

Commerce Clause). The Supreme Court 

explained in SWANCC that the term 

‘‘navigable’’ indicates ‘‘what Congress 

had in mind as its authority for enacting 

the Clean Water Act: its traditional 

jurisdiction over waters that were or had 

been navigable in fact or which could 

reasonably be so made.’’ 531 U.S. 159, 

172 (2001). The Court further explained 

that nothing in the legislative history of 

the Act provides any indication that 

‘‘Congress intended to exert anything 

more than its commerce power over 

navigation.’’ Id. at 168 n.3. 

The Supreme Court has cautioned 

that one must look to the underlying 

purpose of the statute to determine the 

scope of federal authority being 

exercised over navigable waters under 

the Commerce Clause. See PPL 

Montana, LLC v. Montana, 132 S. Ct. 

1215, 1228 (2012). The Supreme Court 

did that in United States v. Riverside 

Bayview Homes, for example, and 

determined that Congress had intended 

‘‘to exercise its powers under the 

Commerce Clause to regulate at least 

some waters that would not be deemed 

‘navigable’ under the classical 

understanding of that term.’’ 474 U.S. 

121, 133 (1985) (‘‘[T]he evident breadth 

of congressional concern for protection 

of water quality and aquatic ecosystems 

suggests that it is reasonable for the 

Corps to interpret the term ‘waters’ to 

encompass wetlands adjacent to waters 

as more conventionally defined.’’); see 

also SWANCC, 531 U.S. at 167 (noting 

that the Riverside Bayview ‘‘holding was 

based in large measure upon Congress’ 

unequivocal acquiescence to, and 

approval of, the Corps’ regulations 

interpreting the CWA to cover wetlands 

adjacent to navigable waters’’). 

The classical understanding of the 

term navigable was first articulated by 

the Supreme Court in The Daniel Ball: 

Those rivers must be regarded as public 

navigable rivers in law which are navigable 

in fact. And they are navigable in fact when 

they are used, or are susceptible of being 

used, in their ordinary condition, as 

highways of commerce, over which trade and 

travel are or may be conducted in the 

customary modes of trade and travel on 

water. And they constitute navigable waters 

of the United States within the meaning of 

the Acts of Congress, in contradistinction 

from the navigable waters of the States, when 

they form in their ordinary condition by 

themselves, or by uniting with other waters, 

a continued highway over which commerce 

is or may be carried on with other States or 

foreign countries in the customary modes in 

which such commerce is conducted by water. 

77 U.S. (10 Wall.) 557, 563 (1871). Over 

the years, this traditional test has been 

expanded to include waters that had 

been used in the past for interstate 

commerce, see Economy Light & Power 

Co. v. United States, 256 U.S. 113, 123 

(1921), and waters that are susceptible 

for use with reasonable improvement, 

see United States v. Appalachian Elec. 

Power Co., 311 U.S. 377, 407–10 (1940). 

By the time the 1972 CWA 

amendments were enacted, the Supreme 

Court had also made clear that Congress’ 

authority over the channels of interstate 

commerce was not limited to regulation 

of the channels themselves, but could 

extend to activities necessary to protect 

the channels. See Oklahoma ex rel. 

Phillips v. Guy F. Atkinson Co., 313 U.S. 

508, 523 (1941) (‘‘Congress may exercise 

its control over the non-navigable 

stretches of a river in order to preserve 

or promote commerce on the navigable 

portions.’’). The Supreme Court had also 

clarified that Congress could regulate 

waterways that formed a part of a 

channel of interstate commerce, even if 

they are not themselves navigable or do 

not cross state boundaries. See Utah v. 

United States, 403 U.S. 9, 11 (1971). 

These developments were discussed 

during the legislative process leading up 

to the passage of the 1972 CWA 

amendments, and certain members 

referred to the scope of the amendments 

as encompassing waterways that serve 

as ‘‘links in the chain’’ of interstate 

commerce as it flows through various 

channels of transportation, such as 

railroads and highways. See, e.g., 118 

Cong. Rec. 33756–57 (1972) (statement 

of Rep. Dingell); 118 Cong. Rec. 33699 

(Oct. 4, 1972) (statement of Sen. 

Muskie).10 Other references suggest that 

congressional committees at least 

contemplated applying the ‘‘control 

requirements’’ of the Act ‘‘to the 

navigable waters, portions thereof, and 

their tributaries.’’ S. Rep. No. 92–414, 

92nd Cong., 1st Sess. at 77 (1971). And 

in 1977, when Congress authorized 

State assumption over the section 404 

dredged or fill material permitting 

program, Congress limited the scope of 

assumable waters by requiring the Corps 

to retain permitting authority over 

Rivers and Harbors Act waters (as 

identified by the Daniel Ball test) plus 

wetlands adjacent to those waters, 

minus historic use only waters. See 33 

U.S.C. 1344(g)(1).11 This suggests that 

Congress had in mind a broader scope 

of waters subject to CWA jurisdiction 

than waters traditionally understood as 

navigable. See SWANCC, 531 U.S. at 

171; Riverside Bayview, 474 U.S. at 138 

n.11. 

Thus, Congress intended to assert 

federal authority over more than just 

waters traditionally understood as 

navigable, and Congress rooted that 


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12For additional context, at oral argument during 

Riverside Bayview, the government attorney 

characterized the wetland at issue as ‘‘in fact an 

adjacent wetland, adjacent—by adjacent, I mean it 

is immediately next to, abuts, adjoins, borders, 

whatever other adjective you might want to use, 

navigable waters of the United States.’’ Transcript 

of Oral Argument at 16, United States v. Riverside 

Bayview Homes, Inc., 474 U.S. 121 (1985) (No. 84– 

701). 

authority in ‘‘its commerce power over 

navigation.’’ SWANCC, 531 U.S. at 168 

n.3. However, there must necessarily be 

a limit to that authority and to what 

water is subject to federal jurisdiction. 

How the agencies should exercise that 

authority has been the subject of dispute 

for decades, but the Supreme Court on 

three occasions has analyzed the issue 

and provided some instructional 

guidance. 

2. U.S. Supreme Court Precedent 

a. Adjacent Wetlands 

In Riverside Bayview, the Supreme 

Court considered the Corps’ assertion of 

jurisdiction over ‘‘low-lying, marshy 

land’’ immediately abutting a water 

traditionally understood as navigable on 

the grounds that it was an ‘‘adjacent 

wetland’’ within the meaning of the 

Corps’ then-existing regulations. 474 

U.S. at 124. The Court addressed the 

question whether non-navigable 

wetlands may be regulated as ‘‘waters of 

the United States’’ on the basis that they 

are ‘‘adjacent to’’ navigable-in-fact 

waters and ‘‘inseparably bound up 

with’’ them because of their ‘‘significant 

effects on water quality and the aquatic 

ecosystem.’’ See id. at 131–35 & n.9. 

In analyzing the meaning of 

adjacency, the Court captured the 

difficulty in determining where the 

limits of federal jurisdiction end, noting 

that the line is somewhere between 

open water and dry land: 

In determining the limits of its power to 

regulate discharges under the Act, the Corps 

must necessarily choose some point at which 

water ends and land begins. Our common 

experience tells us that this is often no easy 

task: The transition from water to solid 

ground is not necessarily or even typically an 

abrupt one. Rather, between open waters and 

dry land may lie shallows, marshes, 

mudflats, swamps, bogs—in short, a huge 

array of areas that are not wholly aquatic but 

nevertheless fall far short of being dry land. 

Where on this continuum to find the limit of 

‘‘waters’’ is far from obvious. 

Id. at 132 (emphasis added). Within this 

statement, the Supreme Court identifies 

a basic principle for adjacent wetlands: 

The limits of jurisdiction lie within the 

‘‘continuum’’ or ‘‘transition’’ ‘‘between 

open waters and dry land.’’ Observing 

that Congress intended the CWA ‘‘to 

regulate at least some waters that would 

not be deemed ‘navigable,’ ’’ the Court 

therefore held that it is ‘‘a permissible 

interpretation of the Act’’ to conclude 

that ‘‘a wetland that actually abuts on a 

navigable waterway’’ falls within the 

‘‘definition of ‘waters of the United 

States.’ ’’ Id. at 133, 135. Thus, a 

wetland that abuts a navigable water 

traditionally understood as navigable is 

subject to CWA permitting because it is 

‘‘inseparably bound up with the ‘waters’ 

of the United States.’’ Id. at 134. ‘‘This 

holds true even for wetlands that are not 

the result of flooding or permeation by 

water having its source in adjacent 

bodies of open water.’’ Id. The Court 

also noted that the agencies can 

establish categories of jurisdiction for 

adjacent wetlands. See id. at 135 n.9. 

The Supreme Court in Riverside 

Bayview declined to decide whether 

wetlands that are not adjacent to 

navigable waters could also be regulated 

by the agencies. See id. at 124 n.2 & 131 

n.8. In SWANCC, however, the Supreme 

Court analyzed a similar question in the 

context of an abandoned sand and 

gravel pit located some distance from a 

traditional navigable water, with 

excavation trenches that ponded—some 

only seasonally—and served as habitat 

for migratory birds. 531 U.S. at 162–65. 

The Supreme Court rejected the 

government’s stated rationale for 

asserting jurisdiction over these 

‘‘nonnavigable, isolated, intrastate 

waters.’’ Id. at 171–72. In doing so, the 

Supreme Court noted that Riverside 

Bayview upheld ‘‘jurisdiction over 

wetlands that actually abutted on a 

navigable waterway’’ because the 

wetlands were ‘‘inseparably bound up 

with the ‘waters’ of the United States.’’ 

Id. at 167.12 As summarized by the 

SWANCC majority: 

It was the significant nexus between the 

wetlands and ‘‘navigable waters’’ that 

informed our reading of the CWA in 

Riverside Bayview Homes. Indeed, we did not 

‘‘express any opinion’’ on the ‘‘question of 

authority of the Corps to regulate discharges 

of fill material into wetlands that are not 

adjacent to bodies of open water. . . . In 

order to rule for [the Corps] here, we would 

have to hold that the jurisdiction of the Corps 

extends to ponds that are not adjacent to 

open water. But we conclude that the text of 

the statute will not allow this. 

Id. at 167–68 (internal citations 

omitted). That is because the text of 

section 404(a)—the permitting provision 

at issue in the case—included the word 

‘‘navigable’’ as its operative phrase, and 

signaled a clear direction to the Court 

that ‘‘Congress had in mind . . . its 

traditional jurisdiction over waters that 

were or had been navigable in fact or 

which could reasonably be so made.’’ 

Id. at 172. 

The Court dismissed the argument 

that the use of the abandoned ponds by 

migratory birds fell within the power of 

Congress to regulate activities that in the 

aggregate have a substantial effect on 

interstate commerce, or that the targeted 

use of the ponds as a municipal landfill 

was commercial in nature. Id. at 173. 

Such arguments, the Court noted, raised 

‘‘significant constitutional questions.’’ 

Id. ‘‘Where an administrative 

interpretation of a statute invokes the 

outer limits of Congress’ power, we 

expect a clear indication that Congress 

intended that result.’’ Id. at 172–73 

(‘‘Congress does not casually authorize 

administrative agencies to interpret a 

statute to push the limit of 

congressional authority.’’). This is 

particularly true ‘‘where the 

administrative interpretation alters the 

federal-state framework by permitting 

federal encroachment upon a traditional 

state power.’’ Id. at 173; see also 

Atascadero State Hospital v. Scanlon, 

473 U.S. 234, 242–43 (1985) (finding 

that where Congress intends to alter the 

‘‘usual constitutional balance between 

the States and the Federal Government,’’ 

it must make its intention to do so 

‘‘unmistakably clear in the language of 

the statute’’); Gregory v. Ashcroft, 501 

U.S. 452, 460–61 (1991) (‘‘[The] plain 

statement rule . . . acknowledg[es] that 

the States retain substantial sovereign 

powers under our constitutional 

scheme, powers with which Congress 

does not readily interfere.’’). ‘‘Rather 

than expressing a desire to readjust the 

federal-state balance in this manner, 

Congress chose [in the CWA] to 

‘recognize, preserve, and protect the 

primary responsibilities and rights of 

States . . . to plan the development and 

use . . . of land and water resources. 

. . .’’ SWANCC, 531 U.S. at 174 

(quoting 33 U.S.C. 1251(b)). The Court 

therefore found no clear statement from 

Congress that it had intended to permit 

federal encroachment on traditional 

state power, and construed the CWA to 

avoid the significant constitutional 

questions related to the scope of federal 

authority authorized therein. Id. 

The Supreme Court considered the 

concept of adjacency again several years 

later in consolidated cases arising out of 

the Sixth Circuit. See Rapanos v. United 

States, 547 U.S. 715 (2006). In one case, 

the Corps had determined that wetlands 

on three separate sites were subject to 

CWA jurisdiction because they were 

adjacent to ditches or man-made drains 

that eventually connected to traditional 

navigable waters several miles away 

through other ditches, drains, creeks, 

and/or rivers. Id. at 719–20, 729. In 

another case, the Corps had asserted 


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13The agencies’ Rapanos Guidance recognizes 

the plurality’s ‘‘continuous surface connection’’ 

does not refer to a continuous surface water 

connection. See, e.g., Rapanos Guidance at 7 n.28 

(‘‘A continuous surface connection does not require 

surface water to be continuously present between 

the wetland and the tributary.’’). 

jurisdiction over a wetland separated 

from a man-made drainage ditch by a 

four-foot-wide man-made berm. Id. at 

730. The ditch emptied into another 

ditch, which then connected to a creek, 

and eventually connected to Lake St. 

Clair, a traditional navigable water, 

approximately a mile from the parcel at 

issue. The berm was largely or entirely 

impermeable, but may have permitted 

occasional overflow from the wetland to 

the ditch. Id. The Court, in a fractured 

opinion, vacated and remanded the 

Sixth Circuit’s decision upholding the 

Corps’ asserted jurisdiction over the 

four wetlands at issue, with Justice 

Scalia writing for the plurality and 

Justice Kennedy concurring in the 

judgment. Id. at 757 (plurality), 787 

(Kennedy, J.). 

The plurality determined that CWA 

jurisdiction only extended to adjacent 

‘‘wetlands with a continuous surface 

connection to bodies that are ‘waters of 

the United States’ in their own right, so 

that there is no clear demarcation 

between ‘waters’ and wetlands.’’ Id. at 

742. The plurality then concluded that 

‘‘establishing that wetlands . . . are 

covered by the Act requires two 

findings: first, that the adjacent channel 

contains a ‘wate[r] of the United States,’ 

(i.e., a relatively permanent body of 

water connected to traditional interstate 

navigable waters); and second, that the 

wetland has a continuous surface 

connection with that water, making it 

difficult to determine where the ‘water’ 

ends and the ‘wetland’ begins.’’ Id. 

(alteration in original). 

In order to reach the adjacency 

conclusion of this two-part test, the 

plurality interpreted the Riverside 

Bayview decision, and subsequent 

SWANCC decision characterizing 

Riverside Bayview, as authorizing 

jurisdiction over wetlands that 

physically abutted traditional navigable 

waters. Id. at 740–42. The plurality 

focused on the ‘‘inherent ambiguity’’ 

described in Riverside Bayview in 

determining where on the continuum 

between open waters and dry land the 

scope of federal jurisdiction should end. 

Id. at 740. It was ‘‘the inherent 

difficulties of defining precise bounds to 

regulable waters,’’ id. at 741 n.10, 

according to the plurality, that 

prompted the Court in Riverside 

Bayview to defer to the Corps’ inclusion 

of adjacent wetlands as ‘‘waters’’ subject 

to CWA jurisdiction based on ecological 

considerations. Id. at 740–41 (‘‘When 

we characterized the holding of 

Riverside Bayview in SWANCC, we 

referred to the close connection between 

waters and the wetlands they gradually 

blend into: ‘It was the significant nexus 

between the wetlands and ‘navigable 

waters’ that informed our reading of the 

CWA in Riverside Bayview Homes.’ ’’). 

The plurality also noted that ‘‘SWANCC 

rejected the notion that the ecological 

considerations upon which the Corps 

relied in Riverside Bayview . . . 

provided an independent basis for 

including entities like ‘wetlands’ (or 

‘ephemeral streams’) within the phrase 

‘the waters of the United States.’ 

SWANCC found such ecological 

considerations irrelevant to the question 

whether physically isolated waters 

come within the Corps’ jurisdiction.’’ Id. 

at 741–42 (emphasis in original). 

Justice Kennedy disagreed with the 

plurality’s determination that adjacency 

requires a ‘‘continuous surface 

connection’’ to covered waters. Id. at 

772. In reading the phrase ‘‘continuous 

surface connection’’ to mean a 

continuous ‘‘surface-water connection,’’ 

id. at 776, and interpreting the 

plurality’s standard to include a 

‘‘surface-water-connection 

requirement,’’ id. at 774, Justice 

Kennedy stated that ‘‘when a surfacewater connection is lacking, the 

plurality forecloses jurisdiction over 

wetlands that abut navigable-in-fact 

waters—even though such navigable 

waters were traditionally subject to 

federal authority,’’ id. at 776, even after 

the Riverside Bayview Court ‘‘deemed it 

irrelevant whether ‘the moisture 

creating the wetlands . . . find[s] its 

source in the adjacent bodies of water,’’ 

id. at 772 (internal citations omitted). 

This is one reason why Justice Kennedy 

stated that ‘‘Riverside Bayview’s 

observations about the difficulty of 

defining the water’s edge cannot be 

taken to establish that when a clear 

boundary is evident, wetlands beyond 

that boundary fall outside the Corps’ 

jurisdiction.’’ Id. at 773. 

The plurality did not directly address 

the precise distinction raised by Justice 

Kennedy, but did note in response that 

the ‘‘Riverside Bayview opinion 

required’’ a ‘‘continuous physical 

connection,’’ id. at 751 n.13 (emphasis 

added), and focused on evaluating 

adjacency between a ‘‘water’’ and a 

wetland ‘‘in the sense of possessing a 

continuous surface connection that 

creates the boundary-drawing problem 

we addressed in Riverside Bayview.’’ Id. 

at 757. The plurality also noted that its 

standard includes a ‘‘physicalconnection requirement’’ between 

wetlands and covered waters. Id. at 751 

n.13. In other words, the plurality 

appeared to be more focused on the 

abutting nature rather than the source of 

water creating the wetlands at issue in 

Riverside Bayview to describe the legal 

constructs applicable to adjacent 

wetlands, see id. at 747; see also 

Webster’s II, New Riverside University 

Dictionary (1994) (defining ‘‘abut’’ to 

mean ‘‘to border on’’ or ‘‘to touch at one 

end or side of something’’), and indeed 

agreed with Justice Kennedy and the 

Riverside Bayview Court that ‘‘[a]s long 

as the wetland is ‘adjacent’ to covered 

waters . . . its creation vel non by 

inundation is irrelevant.’’ Id. at 751 

n.13.13

Because physically disconnected 

wetlands do not raise the same 

boundary-drawing concerns presented 

by actually abutting wetlands, the 

plurality determined that the rationale 

in Riverside Bayview does not apply to 

such features. The plurality stated that 

‘‘[w]etlands with only an intermittent, 

physically remote hydrologic 

connection to ‘waters of the United 

States’ do not implicate the boundarydrawing problem of Riverside Bayview, 

and thus lack the necessary connection 

to covered waters that we described as 

a ‘significant nexus’ in SWANCC[.]’’ Id. 

at 742. The plurality supported this 

position by referring to the Court’s 

treatment of isolated waters in SWANCC 

as non-jurisdictional. Id. at 726, 741–42 

(‘‘[W]e held that ‘nonnavigable, isolated, 

intrastate waters’—which, unlike the 

wetlands at issue in Riverside Bayview, 

did not ‘actually abu[t] on a navigable 

waterway,’—were not included as 

‘waters of the United States.’ ’’). The 

plurality found ‘‘no support for the 

inclusion of physically unconnected 

wetlands as covered ‘waters’ ’’ based on 

Riverside Bayview’s treatment of the 

Corps’ definition of adjacent. Id. at 746– 

47; see also id. at 746 (‘‘[T]he Corps’ 

definition of ‘adjacent’ . . . has been 

extended beyond reason.’’). 

Concurring in the judgment, Justice 

Kennedy focused on the ‘‘significant 

nexus’’ between the adjacent wetlands 

and traditional navigable waters as the 

basis for determining whether a wetland 

is a water subject to CWA jurisdiction: 

‘‘It was the significant nexus between 

wetlands and navigable waters . . . that 

informed our reading of the [Act] in 

Riverside Bayview Homes. Because such 

a nexus was lacking with respect to 

isolated ponds, [in SWANCC] the Court 

held that the plain text of the statute did 

not permit the Corps’ action.’’ Id. at 767 

(internal quotations and citations 

omitted). Justice Kennedy noted that the 

wetlands at issue in Riverside Bayview 

were ‘‘adjacent to [a] navigable-in-fact 

waterway[ ],’’ while the ‘‘ponds and 


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mudflats’’ considered in SWANCC 

‘‘were isolated in the sense of being 

unconnected to other waters covered by 

the Act.’’ Id. at 765–66. ‘‘Taken together, 

these cases establish that in some 

instances, as exemplified by Riverside 

Bayview, the connection between a 

nonnavigable water or wetland and a 

navigable water may be so close, or 

potentially so close, that the Corps may 

deem the water or wetland a ‘navigable 

water’ under the Act. In other instances, 

as exemplified by SWANCC, there may 

be little or no connection. Absent a 

significant nexus, jurisdiction under the 

Act is lacking.’’ Id. at 767. 

According to Justice Kennedy, 

whereas the isolated ponds and 

mudflats in SWANCC lack the 

‘‘significant nexus’’ to navigable waters, 

it is the ‘‘conclusive standard for 

jurisdiction’’ based on ‘‘a reasonable 

inference of ecological interconnection’’ 

between adjacent wetlands and 

navigable-in-fact waters that allows for 

their categorical inclusion as waters of 

the United States. Id. at 780 (‘‘[T]he 

assertion of jurisdiction for those 

wetlands [adjacent to navigable-in-fact 

waters] is sustainable under the act by 

showing adjacency alone.’’). Justice 

Kennedy surmised that it may be that 

the same rationale ‘‘without any inquiry 

beyond adjacency . . . could apply 

equally to wetlands adjacent to certain 

major tributaries,’’ noting that the Corps 

could establish by regulation categories 

of tributaries based on volume of flow, 

proximity to navigable waters, or other 

factors that ‘‘are significant enough that 

wetlands adjacent to them are likely, in 

the majority of cases, to perform 

important functions for an aquatic 

system incorporating navigable waters.’’ 

Id. at 780–81. However, ‘‘[t]he Corps’ 

existing standard for tributaries’’ 

provided Justice Kennedy ‘‘no such 

assurance’’ to infer the categorical 

existence of a requisite nexus between 

waters traditionally understood as 

navigable and wetlands adjacent to 

nonnavigable tributaries. Id. at 781. That 

is because: 

the breadth of [the tributary] standard— 

which seems to leave wide room for 

regulation of drains, ditches, and streams 

remote from any navigable-in-fact water and 

carrying only minor water volumes towards 

it—precludes its adoption as the 

determinative measure of whether adjacent 

wetlands are likely to play an important role 

in the integrity of an aquatic system 

comprising navigable waters as traditionally 

understood. Indeed, in many cases wetlands 

adjacent to tributaries covered by this 

standard might appear little more related to 

navigable-in-fact waters than were the 

isolated ponds held to fall beyond the Act’s 

scope in SWANCC. 

Id. at 781–82. 

Justice Kennedy stated that, absent 

development of a more specific 

regulation, the Corps ‘‘must establish a 

significant nexus on a case-by-case basis 

when it seeks to regulate wetlands based 

on adjacency to nonnavigable 

tributaries. Given the potential 

overbreadth of the Corps’ regulations, 

this showing is necessary to avoid 

unreasonable applications of the 

statute.’’ Id. at 782. Justice Kennedy 

explained that ‘‘wetlands possess the 

requisite nexus, and thus come within 

the statutory phrase ‘navigable waters,’ 

if the wetlands, either alone or in 

combination with similarly situated 

lands in the region, significantly affect 

the chemical, physical, and biological 

integrity of other covered waters more 

readily understood as ‘navigable.’ ’’ Id. 

at 780. ‘‘Where an adequate nexus is 

established for a particular wetland, it 

may be permissible, as a matter of 

administrative convenience or 

necessity, to presume covered status for 

other comparable wetlands in the 

region.’’ Id. at 782. 

In describing this significant nexus 

test, Justice Kennedy relied, in part, on 

the overall objective of the CWA to 

‘‘restore and maintain the chemical, 

physical, and biological integrity of the 

Nation’s waters.’’ Id. at 779 (quoting 33 

U.S.C. 1251(a)). Justice Kennedy also 

agreed with the plurality that 

‘‘environmental concerns provide no 

reason to disregard limits in the 

statutory text.’’ Id. at 778. With respect 

to wetlands adjacent to nonnavigable 

tributaries, Justice Kennedy therefore 

determined that ‘‘mere adjacency . . . is 

insufficient. A more specific inquiry, 

based on the significant-nexus standard, 

is . . . necessary.’’ Id. at 786. Not 

requiring adjacent wetlands to possess a 

significant nexus with navigable waters, 

Justice Kennedy noted, would allow a 

finding of jurisdiction ‘‘whenever 

wetlands lie alongside a ditch or drain, 

however remote and insubstantial, that 

eventually may flow into traditional 

navigable waters. The deference owed 

the Corps’ interpretation of the statute 

does not extend so far.’’ Id. at 778–79. 

Based on the agencies’ review of this 

Supreme Court precedent, although the 

plurality and Justice Kennedy 

established different standards to 

determine the jurisdictional status of 

wetlands adjacent to nonnavigable 

tributaries, they both appear to agree in 

principle that the determination must be 

made using a two-part test that 

considers: (1) The proximity of the 

wetland to the tributary; and (2) the 

status of the tributary with respect to 

downstream traditional navigable 

waters. The plurality and Justice 

Kennedy also agree that the proximity 

between the wetland and the tributary 

must be close. The plurality refers to 

that proximity as a ‘‘continuous surface 

connection’’ or ‘‘continuous physical 

connection,’’ as demonstrated in 

Riverside Bayview. Id. at 742, 751 n.13. 

Justice Kennedy recognized that ‘‘the 

connection between a nonnavigable 

water or wetland and a navigable water 

may be so close, or potentially so close, 

that the Corps may deem the water or 

wetland a ‘navigable water’ under the 

Act.’’ Id. at 767. The second part of the 

two-part tests established by the 

plurality and Justice Kennedy is 

addressed in the next section. 

b. Tributaries 

The definition of tributaries was not 

addressed in either Riverside Bayview or 

SWANCC. And while the focus of 

Rapanos was on whether the Corps 

could regulate wetlands adjacent to 

nonnavigable waters, the plurality and 

concurring opinions provide some 

guidance on the regulatory status of 

tributaries to navigable-in-fact waters. 

The plurality and Justice Kennedy 

both recognized that the jurisdictional 

scope of the CWA is not restricted to 

traditional navigable waters. See id. at 

731 (plurality) (‘‘[T]he Act’s term 

‘navigable waters’ includes something 

more than traditional navigable 

waters.’’); id. at 767 (Justice Kennedy) 

(‘‘Congress intended to regulate at least 

some waters that are not navigable in 

the traditional sense.’’). Both also agree 

that federal authority under the Act is 

not without limit. See id. at 731–32 

(plurality) (‘‘[T]he waters of the United 

States . . . cannot bear the expansive 

meaning that the Corps would give it.’’); 

id. at 778–79 (Justice Kennedy) (‘‘The 

deference owed to the Corps’ 

interpretation of the statute does not 

extend’’ to ‘‘wetlands’’ which ‘‘lie 

alongside a ditch or drain, however 

remote or insubstantial, that eventually 

may flow into traditional navigable 

waters.’’). 

With respect to tributaries 

specifically, both the plurality and 

Justice Kennedy focus in large part on 

a tributary’s contribution of flow to, and 

connection with, traditional navigable 

waters. The plurality would include as 

waters of the United States ‘‘only 

relatively permanent, standing or 

flowing bodies of water’’ and would 

define such ‘‘waters’’ as including 

streams, rivers, oceans, lakes and other 

bodies of waters that form geographical 

features, noting that all such ‘‘terms 

connote continuously present, fixed 

bodies of water . . . .’’ Id. at 732–33, 

739. On the other hand, the plurality 

would likely exclude ephemeral streams 


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and related features. Id. at 733–34, 739, 

741. Justice Kennedy would likely 

exclude some streams considered 

jurisdictional under the plurality’s test. 

Id. at 769 (noting that under the 

plurality’s test, ‘‘[t]he merest trickle, if 

continuous, would count as a ‘water’ 

subject to federal regulation, while 

torrents thundering at irregular intervals 

through otherwise dry channels would 

not’’). 

In addition, both the plurality and 

Justice Kennedy would likely include 

some intermittent streams as waters of 

the United States. See id. at 732–33 & 

n.5 (plurality); id. at 769–70 (Justice 

Kennedy). The plurality noted that its 

reference to ‘‘relatively permanent’’ 

waters did ‘‘not necessarily exclude 

streams, rivers, or lakes that might dry 

up in extraordinary circumstances, such 

as drought,’’ or ‘‘seasonal rivers, which 

contain continuous flow during some 

months of the year but no flow during 

dry months . . . .’’ Id. at 732 n.5 

(emphasis in original). However, neither 

the plurality nor Justice Kennedy 

defined with precision where to draw 

the line. Nevertheless, the plurality 

provided that ‘‘navigable waters’’ must 

have ‘‘at bare minimum, the ordinary 

presence of water,’’ id. at 734, and 

Justice Kennedy noted that the Corps 

can identify by regulation categories of 

tributaries based on volume of flow, 

proximity to navigable waters, or other 

factors that ‘‘are significant enough that 

wetlands adjacent to them are likely, in 

the majority of cases, to perform 

important functions for an aquatic 

system incorporating navigable waters.’’ 

Id. at 780–81. And both the plurality 

and Justice Kennedy agreed that the 

Corps’ assertion of jurisdiction over the 

wetlands adjacent to the ‘‘drains, 

ditches, and streams remote from any 

navigable-in-fact water,’’ id. at 781 

(Kennedy), at issue in Rapanos raised 

significant jurisdictional questions. Id. 

at 737–38 (plurality); id. at 781–82 

(Kennedy). 

3. Principles and Considerations 

From this legal foundation, a few 

important principles emerge from which 

the agencies can evaluate their 

authorities. First, the power conferred 

on the agencies to regulate the waters of 

the United States is grounded in 

Congress’ commerce power over 

navigation. The agencies can choose to 

regulate beyond waters more 

traditionally understood as navigable 

given the broad purposes of the CWA, 

including some tributaries to those 

traditional navigable waters, but must 

provide a reasonable basis grounded in 

the language and structure of the Act for 

determining the extent of jurisdiction. 

The agencies also can choose to regulate 

wetlands adjacent to the traditional 

navigable waters and some tributaries, if 

the wetlands are in close proximity to 

the tributaries, such as in the 

transitional zone between open waters 

and dry land. In the agencies’ view, it 

would not be consistent with Justice 

Kennedy’s Rapanos opinion or the 

Rapanos plurality opinion to regulate 

wetlands adjacent to all tributaries, no 

matter how small or remote from 

navigable water. The Court’s opinion in 

SWANCC also calls into serious 

question the agencies’ authority to 

regulate nonnavigable, isolated, 

intrastate waters that lack a sufficient 

connection to traditional navigable 

waters, and suggests that the agencies 

should avoid regulatory interpretations 

of the CWA that raise constitutional 

questions regarding the scope of their 

statutory authority. The agencies can, 

however, regulate certain waters by 

category, which could improve 

regulatory predictability and certainty 

and ease administrative burden while 

still effectuating the purposes of the Act. 

In developing a clear and predictable 

regulatory framework, the agencies also 

must respect the primary 

responsibilities and rights of States and 

Tribes to regulate their land and water 

resources. See 33 U.S.C. 1251(b), 1370. 

The oft-quoted objective of the CWA to 

‘‘restore and maintain the chemical, 

physical, and biological integrity of the 

Nation’s waters,’’ id. at 1251(a), must be 

implemented in a manner consistent 

with Congress’ policy directives to the 

agencies. The Supreme Court long ago 

recognized the distinction between 

federal waters traditionally understood 

as navigable and waters ‘‘subject to the 

control of the States.’’ The Daniel Ball, 

77 U.S. (10 Wall.) 557, 564–65 (1871). 

Over a century later, the Supreme Court 

in SWANCC reaffirmed the State’s 

‘‘traditional and primary power over 

land and water use.’’ 531 U.S. at 174; 

accord Rapanos, 547 U.S. at 738 (Scalia, 

J., plurality opinion). Ensuring that 

States and Tribes retain authority over 

their land and water resources pursuant 

to CWA section 101(b) and section 510 

helps carry out the overall objective of 

the CWA, and ensures that the agencies 

are giving full effect and consideration 

to the entire structure and function of 

the Act, including Congress’ intent as 

reflected in dozens of non-regulatory 

grant, research, nonpoint source, 

groundwater, and watershed planning 

programs to assist the states in 

controlling pollution in the nation’s 

waters, not just its navigable waters. 

Further, the agencies are cognizant 

that the ‘‘Clean Water Act imposes 

substantial criminal and civil penalties 

for discharging any pollutant into 

waters covered by the Act without a 

permit. . . .’’ U.S. Army Corps of Eng’rs 

v. Hawkes Co., 136 S. Ct. 1807, 1812 

(2016); see also Sackett v. EPA, 566 U.S. 

120, 132–33 (2012) (Alito, J., 

concurring) (‘‘[T]he combination of the 

uncertain reach of the Clean Water Act 

and the draconian penalties imposed for 

the sort of violations alleged in this case 

still leaves most property owners with 

little practical alternative but to dance 

to the EPA’s tune.’’). As the Chief Justice 

observed in Hawkes, ‘‘[i]t is often 

difficult to determine whether a 

particular piece of property contains 

waters of the United States, but there are 

important consequences if it does.’’ 136 

S. Ct. at 1812; see also id. at 1816–17 

(Kennedy, J., concurring) (‘‘[T]he reach 

and systemic consequences of the Clean 

Water Act remain a cause for concern,’’ 

and the Act ‘‘continues to raise 

troubling questions regarding the 

Government’s power to cast doubt on 

the full use and enjoyment of private 

property throughout the Nation.’’). 

Given the significant civil and criminal 

penalties associated with the CWA, it is 

important for the agencies to promote 

regulatory certainty while striving to 

provide fair and predictable notice of 

the limits of federal jurisdiction. See, 

e.g., Sessions v. Dimaya, 138 S. Ct. 

1204, 1223–25 (2018) (Gorsuch, J., 

concurring in part and concurring in the 

judgment) (characterizing fair notice as 

possibly the most fundamental of the 

protections provided by the 

Constitution’s guarantee of due process, 

and stating that vague laws are an 

exercise of ‘‘arbitrary power . . . leaving 

the people in the dark about what the 

law demands and allowing prosecutors 

and courts to make it up’’). 

C. Proposed Reasons for Repeal 

The agencies’ proposal is based on 

our view that regulatory certainty may 

be best served by repealing the 2015 

Rule and recodifying the preexisting 

scope of CWA jurisdiction. Specifically, 

the agencies are concerned that rather 

than achieving their stated objectives of 

increasing regulatory predictability and 

consistency under the CWA, retaining 

the 2015 Rule creates significant 

uncertainty for agency staff, regulated 

entities, and the public, which is 

compounded by court decisions that 

have increased litigation risk and cast 

doubt on the legal viability of the rule. 

To provide for greater regulatory 

certainty, the agencies propose to revert 

to the pre-2015 regulations, a regulatory 

regime that is more familiar to and 

better-understood by the agencies, 

States, Tribes, local governments, 

regulated entities, and the public. 


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Further, as a result of the agencies’ 

review and reconsideration of their 

statutory authority and in light of the 

court rulings against the 2015 Rule that 

have suggested that the agencies’ 

interpretation of the ‘‘significant nexus’’ 

standard as applied in the 2015 Rule 

was expansive and does not comport 

with and accurately implement the 

limits on jurisdiction reflected in the 

CWA and decisions of the Supreme 

Court, the agencies are also concerned 

that the 2015 Rule lacks sufficient 

statutory basis. The agencies are 

proposing to conclude in the alternative 

that, at a minimum, the interpretation of 

the statute adopted in the 2015 Rule is 

not compelled, and a different policy 

balance can be appropriate. 

Considering the substantial 

uncertainty associated with the 2015 

Rule resulting from its legal challenges, 

and the substantial experience the 

agencies and others possess with the 

longstanding regulatory framework 

currently being administered by the 

agencies, the agencies conclude that 

clarity, predictability, and consistency 

may be best served by repealing the 

2015 Rule and thus are proposing to do 

so. The agencies may still propose 

changes to the definition of ‘‘waters of 

the United States’’ in a future 

rulemaking. 

Further, the agencies are concerned 

that certain findings and assumptions 

supporting adoption of the 2015 Rule 

were not correct, and that these 

conclusions, if erroneous, may 

separately justify repeal of the 2015 

Rule. The agencies are concerned and 

seek comment on whether the 2015 Rule 

significantly expanded jurisdiction over 

the preexisting regulatory program, as 

implemented by the agencies, and 

whether that expansion altered State, 

tribal, and local government 

relationships in implementing CWA 

programs. The agencies therefore 

propose to repeal the 2015 Rule in order 

to restore those preexisting relationships 

and better serve the balance of 

authorities envisioned in CWA section 

101(b). 

1. The 2015 Rule Fails To Achieve 

Regulatory Certainty 

The agencies are proposing to repeal 

the 2015 Rule because it does not 

appear to achieve one of its primary 

goals of providing regulatory certainty 

and consistency. When promulgating 

the 2015 Rule, the agencies concluded 

the rule would ‘‘increase CWA program 

predictability and consistency by 

clarifying the scope of ‘waters of the 

United States’ protected under the Act.’’ 

80 FR 37054. The agencies stated that 

the 2015 ‘‘rule reflect[ed] the judgment 

of the agencies in balancing the science, 

the agencies’ expertise, and the 

regulatory goals of providing clarity to 

the public while protecting the 

environment and public health, 

consistent with the law.’’ Id. at 37065. 

Since then, developments in the 

litigation against the 2015 Rule and 

concerns raised since the rule’s 

promulgation indicate that maintaining 

the 2015 Rule would produce 

substantial uncertainty and confusion 

among state and federal regulators and 

enforcement officials, the regulated 

public, and other interested 

stakeholders. To provide for greater 

regulatory certainty, the agencies 

propose to repeal the 2015 Rule and 

restore a longstanding regulatory 

framework that is more familiar to and 

better-understood by the agencies, our 

co-regulators, and regulated entities, 

until the agencies propose and finalize 

a replacement definition. 

a. Litigation to Date 

As noted above, the 2015 Rule has 

been challenged in legal actions across 

multiple district courts, in which 

plaintiffs have raised a number of 

substantive and procedural claims 

against the rule. Petitions for review 

were also filed in multiple courts of 

appeals and were consolidated in the 

U.S. Court of Appeals for the Sixth 

Circuit. To date, all three of the courts 

that substantively have considered the 

2015 Rule—the Sixth Circuit, the 

District of North Dakota, and the 

Southern District of Georgia—have 

found that petitioners seeking to 

overturn the rule are likely to succeed 

on the merits of at least some of their 

claims against the rule. 

In the Sixth Circuit, the court granted 

a nationwide stay of the 2015 Rule after 

finding, among other factors, that the 

petitioners showed a ‘‘substantial 

possibility of success on the merits’’ of 

their claims against the 2015 Rule, 

including claims that the rule was 

inconsistent with Justice Kennedy’s 

opinion in Rapanos and that the rule’s 

distance limitations were not 

substantiated by specific scientific 

support. In re EPA, 803 F.3d 804, 807 

(6th Cir. 2015). 

The District of North Dakota made 

similar findings in issuing a preliminary 

injunction against the 2015 Rule. There, 

the court found that the plaintiff-States 

are ‘‘likely to succeed on the merits of 

their claim’’ that the rule violated the 

congressional grant of authority to the 

agencies under the CWA because the 

rule ‘‘likely fails’’ to meet Justice 

Kennedy’s significant nexus test. North 

Dakota v. EPA, 127 F. Supp. 3d 1047, 

1055–56 (D.N.D. 2015). The court also 

found that the plaintiff-States have a fair 

chance of success on the merits of their 

procedural claims that the agencies 

failed to comply with APA requirements 

in promulgating the rule. Id. at 1056–57. 

The Southern District of Georgia also 

preliminarily enjoined the 2015 Rule, 

holding that the State plaintiffs had 

demonstrated ‘‘a likelihood of success 

on their claims that the [2015] WOTUS 

Rule was promulgated in violation of 

the CWA and the APA.’’ Georgia v. 

Pruitt, No. 15–cv–79, 2018 U.S. Dist. 

LEXIS 97223, at *14 (S.D. Ga. June 8, 

2018) (‘‘Georgia’’) (granting preliminary 

injunction). The court determined that 

the 2015 Rule likely failed to meet the 

standard expounded in SWANCC and 

Rapanos, and that the rule was likely 

fatally defective because it ‘‘allows the 

Agencies to regulate waters that do not 

bear any effect on the ‘chemical, 

physical, and biological integrity’ of any 

navigable-in-fact water.’’ Id. at *17–18. 

The court also held that the plaintiffs 

‘‘have demonstrated a likelihood of 

success on both of their claims under 

the APA’’ that the 2015 Rule ‘‘is 

arbitrary and capricious’’ and ‘‘that the 

final rule is not a logical outgrowth of 

the proposed rule.’’ Id. at *18. 

These rulings indicate that 

substantive or procedural challenges to 

the 2015 Rule are likely to be successful, 

particularly claims that the rule is not 

authorized under the CWA and was 

promulgated in violation of the APA. A 

successful challenge to the 2015 Rule 

could result in a court order vacating 

the rule in all or part, in all or part of 

the country, and potentially resulting in 

different regulatory regimes being in 

effect in different parts of the country, 

which would likely lead to substantial 

regulatory confusion, uncertainty, and 

inconsistency. 

Notably, the agencies face an 

increasing risk of a court order vacating 

the 2015 Rule. The District of North 

Dakota is proceeding to hear the merits 

of the plaintiff-States’ claims against the 

2015 Rule in that case, and the plaintiffStates in the Southern District of 

Georgia have requested a similar meritsbriefing schedule. See Scheduling 

Order, North Dakota v. EPA, No. 15–cv– 

59 (D.N.D. May 2, 2018); Response to 

Defendants’ Updated Response to 

Plaintiff States’ Motion for Preliminary 

Injunction at 11–12, Georgia, No. 15– 

cv–79 (S.D. Ga. May 29, 2018). Although 

the applicability date rule ensures that 

the 2015 Rule will not go into effect 

until February 6, 2020, the prospect of 

a court order vacating the 2015 Rule 

creates additional regulatory 

uncertainty. 


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14Opening Brief of State Petitioners at 15, 61, In 

re EPA, No. 15–3751 (6th Cir. Nov. 1, 2016). 

15Opening Brief for the Business & Municipal 

Petitioners, In re EPA, No. 15–3751 (6th Cir. Nov. 

1, 2016). 

16Brief of Conservation Groups at 11, In re EPA, 

No. 15–3751 (6th Cir. Nov. 1, 2016). 

17See, e.g., id. at 22, 43. 

18See comments submitted by Oregon 

Cattlemen’s Association (July 27, 2017) (Docket ID: 

EPA–HQ–OW–2017–0203–0039), available at 

https://www.regulations.gov/document?D=EPA-HQOW-2017-0203-0039. 

19See comments submitted by Skagit County 

Dike, Drainage and Irrigation District No. 12 and 

Skagit County Dike District No. 1 (Sept. 27, 2017) 

(Docket ID: EPA–HQ–OW–2017–0203–11709), 

available at https://www.regulations.gov/ 

document?D=EPA-HQ-OW-2017-0203-11709. 

20See, e.g., comments submitted by State of 

Washington, Department of Ecology (Nov. 13, 2014) 

(Docket ID: EPA–HQ–OW–2011–0880–13957), 

available at https://www.regulations.gov/ 

document?D=EPA-HQ-OW-2011-0880-13957. 

21See, e.g., comments submitted by State of 

Oklahoma (Nov. 14, 2014) (Docket ID: EPA–HQ– 

OW–2011–0880–14625), available at https://

www.regulations.gov/document?D=EPA-HQ-OW2011-0880-14625; see also comments submitted by 

National Association of Counties (Nov. 14, 2014) 

(Docket ID: EPA–HQ–OW–2011–0880–15081), 

available at https://www.regulations.gov/ 

document?D=EPA-HQ-OW-2011-0880-15081. 

22See comments submitted by State of Utah, 

Governor’s Office (Nov. 14, 2014) (Docket ID: EPA– 

HQ–OW–2011–0880–16534), available at https://

www.regulations.gov/document?D=EPA-HQ-OW2011-0880-16534. 

23See comments submitted by Wyoming 

Department of Environmental Quality (Nov. 14, 

2014) (Docket ID: EPA–HQ–OW–2011–0880– 

16393), available at https://www.regulations.gov/ 

document?D=EPA-HQ-OW-2011-0880-16393. 

24See comments submitted by State of 

Washington, Department of Ecology, supra note 20. 

25Statement of Bruno L. Pigott, Georgia, No. 15– 

cv–79 (S.D. Ga. July 21, 2015). 26 Id. 27U.S. Army Corps of Engineers, OMBIL 

Regulatory Module (June 5, 2018). 28Riverside Bayview, 474 U.S. 121 (1985); 

SWANCC, 531 U.S. 159 (2001); Rapanos, 547 U.S. 

715 (2006). 29The Corps maintains many of these documents 

on its public website, available at https://

www.usace.army.mil/Missions/Civil-Works/ 

Regulatory-Program-and-Permits/RelatedResources/CWA-Guidance/. The EPA maintains 

many of these documents as well; see also https:// 

www.epa.gov/wotus-rule/about-waters-unitedstates. 

b. Stakeholder Confusion Regarding the 

Scope of the 2015 Rule and Extent of 

Federal CWA Jurisdiction 

Statements made in the litigation 

against the 2015 Rule and in comments 

regarding the 2015 Rule indicate that 

there has been substantial disagreement 

and confusion as to the scope of the 

2015 Rule and the extent of federal 

CWA jurisdiction more broadly. In the 

Sixth Circuit, for example, State 

petitioners asserted that the 2015 Rule 

covers waters outside the scope of the 

CWA pursuant to SWANCC and 

Rapanos and ‘‘extends jurisdiction to 

virtually every potentially wet area of 

the country.’’ 14 Industry petitioners 

contended that the rule’s ‘‘uncertain 

standards are impossible for the public 

to understand or the agencies to apply 

consistently.’’ 15 In contrast, 

environmental petitioners found that 

SWANCC and Rapanos led to 

widespread confusion over the scope of 

the CWA and that the pre-2015 

regulatory regime could theoretically 

apply to ‘‘almost all waters and 

wetlands across the country.’’ 16 These 

petitioners asserted that the 2015 Rule 

violated the CWA by failing to cover 

certain waters, including waters that 

may possess a ‘‘significant nexus’’ to 

traditional navigable waters.17 Whether 

such comments are accurate or not, they 

indicate continued widespread 

disagreement and confusion over the 

meaning of the 2015 Rule and extent of 

jurisdiction it entails. 

Some comments received on the July 

27, 2017 NPRM also demonstrate 

continued confusion over the scope and 

various provisions of the 2015 Rule. For 

example, one commenter found that the 

rule’s definitions of ‘‘adjacent,’’ 

‘‘significant nexus’’ and other key terms 

lack clarity and thus lead to regulatory 

uncertainty.18 This same commenter 

contended that the rule could raise 

constitutional concerns related to the 

appropriate scope of federal authority 

and encouraged the agencies to 

undertake a new rulemaking to more 

clearly articulate the extent of federal 

CWA authority. Another commenter 

echoed these concerns, alleging that the 

2015 Rule resulted in a ‘‘vague and 

indecipherable explanation’’ of the 

definition of ‘‘waters of the United 

States’’ that has caused confusion and 

uncertainty as to the extent of 

jurisdiction that can be asserted by 

federal, state and local authorities.19

The agencies have received comments 

from numerous other individuals and 

entities expressing confusion and 

concern about the extent of federal CWA 

jurisdiction asserted under the 2015 

Rule, and the agencies are continuing to 

review and consider these comments. 

c. Impact on State Programs 

Like other commenters on the 

proposal to the 2015 Rule, some States 

expressed confusion regarding the scope 

of the proposal and, uniquely, the 

potential impacts of that uncertainty on 

States’ ability to implement CWA 

programs. Though some States have 

stated that the 2015 Rule ‘‘more clearly 

identifies what types of waters would be 

considered jurisdictional,’’ 20 others 

assert that the extent of CWA 

jurisdiction under the rule remained 

‘‘fuzzy’’ and unclear.21 Certain States 

noted that this uncertainty could ‘‘create 

time delays in obtaining permits which 

previously were not required’’ 22 and 

‘‘result in increased costs to the State 

and other private and public interests, 

along with decreased regulatory 

efficiency.’’ 23 One State suggested that 

even if the 2015 Rule established greater 

regulatory clarity, the rule’s case-by-case 

determinations could result in 

permitting delays when a jurisdictional 

determination is required.24

Similar concerns have been raised in 

the litigation challenging the 2015 Rule. 

For example, in the Southern District of 

Georgia, the State of Indiana has 

asserted that the 2015 Rule’s definition 

of ‘‘waters of the United States’’ is 

‘‘vague’’ and that the rule ‘‘imposes . . . 

unclear regulatory requirements that 

will result in an inefficient use of 

limited regulatory resources.’’ 25 In 

particular, the State asserts concerns 

that implementing the 2015 Rule will 

divert resources by ‘‘[d]emanding the 

time and attention of regulators to make 

the now-difficult determination of when 

and whether a feature is a WOTUS’’ and 

‘‘[g]enerating unnecessary 

administrative appeals and lawsuits to 

resolve jurisdictional disputes.’’ 26

d. Agency Experience With the 1986 

Regulations 

The agencies have been implementing 

the pre-2015 regulations (hereinafter 

referred to as the ‘‘1986 regulations’’) 

almost uninterruptedly since 1986. 

Corps staff are trained on making 

jurisdictional determinations in the 

field and through national webinars and 

classroom or field-based trainings. From 

June 2007 through June 2018, the Corps 

issued 241,857 27 approved 

jurisdictional determinations (AJDs) 

under their 1986 regulations, as 

informed by applicable Supreme Court 

precedent and the agencies’ guidance. 

Through over 30 years of experience, 

the agencies have developed significant 

technical expertise with the 1986 

regulations and have had the 

opportunity to refine the application of 

the rules through guidance and the 

agencies’ experience and federal court 

decisions. Indeed, the 1986 regulations 

have been the subject of a wide body of 

case law, including three significant 

U.S. Supreme Court decisions 28 and 

dozens of cases in federal district courts 

and courts of appeals that have 

addressed the scope of analysis 

required. Since 1986, the agencies have 

issued numerous memoranda, guidance, 

and question-and-answer documents 

explaining and clarifying these 

regulations.29

Given the longstanding nature and 

history of the 1986 regulations, this 


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30Rapanos Guidance at 8. 

31 Id. at 10. 

32 Id. 

33U.S. EPA. Connectivity of Streams and 

Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence (Jan. 2015) 

(EPA/600/R–14/475F). 

regulatory regime is more familiar to the 

agencies, co-regulators, and regulated 

entities. For this reason, as between the 

2015 Rule and the 1986 regulations, the 

1986 regulations (as informed by 

applicable Supreme Court precedent 

and the agencies’ guidance) would 

appear to provide for greater regulatory 

predictability, consistency, and 

certainty, and the agencies seek public 

comment on this issue. Though the 

agencies acknowledge that the 1986 

regulations have posed certain 

implementation difficulties and were 

the subject of court decisions that had 

the effect of narrowing their scope, the 

longstanding nature of the regulatory 

regime—coupled with the agencies’ and 

others’ extensive experience with the 

regulatory scheme—make it preferable 

to the regulatory uncertainty posed by 

the 2015 Rule. 

2. The 2015 Rule May Exceed the 

Agencies’ Authority Under the CWA 

The agencies are concerned that the 

2015 Rule exceeded EPA’s authority 

under the CWA by adopting an 

expansive interpretation of the 

‘‘significant nexus’’ standard that covers 

waters outside the scope of the Act and 

stretches the significant nexus standard 

so far as to be inconsistent with 

important aspects of Justice Kennedy’s 

opinion in Rapanos, even though this 

opinion was identified as the basis for 

the significant nexus standard 

articulated in the 2015 Rule. In 

particular, the agencies are concerned 

that the 2015 Rule took an expansive 

reading of Justice Kennedy’s significant 

nexus test and exceeds the agencies’ 

authority under the Act. 

As expounded in Rapanos, Justice 

Kennedy’s significant nexus standard is 

a test intended to limit federal 

jurisdiction due to the breadth of the 

Corps’ then-existing standard for 

tributaries and in order to ‘‘prevent[ ] 

problematic applications of the statute.’’ 

547 U.S. at 783. ‘‘Given the potential 

overbreadth of the Corps’ [1986] 

regulations,’’ Justice Kennedy found 

that the showing of a significant nexus 

‘‘is necessary to avoid unreasonable 

applications of the statute.’’ Id. at 782. 

The agencies are concerned, upon 

further consideration of the 2015 Rule, 

that the significant nexus standard 

articulated in that rule could lead to 

similar unreasonable applications of the 

CWA. 

Justice Kennedy wrote that adjacent 

‘‘wetlands possess the requisite nexus, 

and thus come within the statutory 

phrase ‘navigable waters,’ if the 

wetlands, either alone or in combination 

with similarly situated lands in the 

region, significantly affect the chemical, 

physical, and biological integrity of 

other covered waters more readily 

understood as ‘navigable.’ ’’ 547 U.S. at 

780. The opinion did not expressly 

define the relevant ‘‘region’’ or what 

was meant by ‘‘similarly situated,’’ but 

it is reasonable to presume that that the 

Justice did not mean ‘‘similarly 

situated’’ to be synonymous with ‘‘all’’ 

waters in a region. The agencies’ 

Rapanos Guidance, for example, had 

interpreted the term ‘‘similarly situated’’ 

more narrowly to ‘‘include all wetlands 

adjacent to the same tributary.’’ 30 ‘‘A 

tributary . . . is the entire reach of the 

stream that is of the same order (i.e., 

from the point of confluence, where two 

lower order streams meet to form the 

tributary, downstream to the point such 

tributary enters a higher order 

stream).’’ 31 Thus, under the agencies’ 

2008 guidance, ‘‘where evaluating 

significant nexus for an adjacent 

wetland, the agencies will consider the 

flow characteristics and functions 

performed by the tributary to which the 

wetland is adjacent along with the 

functions performed by the wetland and 

all other wetlands adjacent to that 

tributary. This approach reflects the 

agencies’ interpretation of Justice 

Kennedy’s term ‘similarly situated’ to 

include all wetlands adjacent to the 

same tributary. . . . Interpreting the 

phrase ‘similarly situated’ to include all 

wetlands adjacent to the same tributary 

is reasonable because such wetlands are 

physically located in a like manner (i.e., 

lying adjacent to the same tributary).’’ 32

The 2015 Rule departed from this 

interpretation of ‘‘similarly situated’’ 

wetlands in a ‘‘region,’’ including 

applying it to other waters, not only 

wetlands, that were not already 

categorically jurisdictional as tributaries 

or adjacent waters. The proposed rule, 

for example, stated that ‘‘[o]ther waters, 

including wetlands, are similarly 

situated when they perform similar 

functions and are located sufficiently 

close together or sufficiently close to a 

‘water of the United States’ so that they 

can be evaluated as a single landscape 

unit with regard to their effect on the 

chemical, physical, or biological 

integrity of a [primary] water.’’ 79 FR 

22263 (April 21, 2014). The 2015 Rule 

took it a step further and stated that ‘‘the 

downstream health of larger 

downstream waters is directly related to 

the aggregate health of waters located 

upstream, including waters such as 

wetlands that may not be hydrologically 

connected but function together to 

ameliorate the potential impacts of 

flooding and pollutant contamination 

from affecting downstream waters.’’ 80 

FR 37063. The 2015 Rule thus 

concluded that ‘‘[a] water has a 

significant nexus when any single 

function or combination of functions 

performed by the water, alone or 

together with similarly situated waters 

in the region, contributes significantly 

to the chemical, physical, or biological 

integrity of the nearest [primary] water.’’ 

Id. at 37106. The ‘‘term ‘in the region’ 

means the watershed that drains to the 

nearest [primary] water.’’ Id. 

An examination of all of the waters in 

‘‘the watershed’’ of ‘‘the nearest 

[primary] water’’ under the 2015 Rule 

therefore may have materially 

broadened the scope of aggregation that 

determines jurisdiction in a ‘‘significant 

nexus’’ inquiry for waters not 

categorically jurisdictional from the 

focus in the proposed rule on waters 

‘‘located sufficiently close together or 

sufficiently close to a ‘water of the 

United States’ so that they can be 

evaluated as a single landscape unit.’’ 

79 FR 22263. The agencies in finalizing 

the rule viewed the scientific literature 

through a broader lens as ‘‘the effect of 

landscape position on the strength of 

the connection to the nearest ‘water of 

the United States,’ ’’ and that ‘‘relevant 

factors influencing chemical 

connectivity include hydrologic 

connectivity . . . , surrounding land 

use and land cover, the landscape 

setting, and deposition of chemical 

constituents (e.g., acidic deposition).’’ 

80 FR 37094. The agencies are 

concerned that this important change in 

the interpretation of ‘‘similarly situated 

waters’’ from the proposed 2015 Rule 

and the 2008 Rapanos Guidance may 

not be explainable by the scientific 

literature, including the Connectivity 

Report 33 cited throughout the preamble 

to the 2015 Rule, in light of the 

agencies’ view at the time that ‘‘[t]he 

scientific literature does not use the 

term ‘significant’ as it is defined in a 

legal context.’’ 80 FR 37062. The 

agencies solicit comment on whether 

the agencies’ justification for the 2015 

Rule’s interpretation of ‘‘similarly 

situated’’ with reference to an entire 

watershed for purposes of waters not 

categorically jurisdictional relied on the 

scientific literature without due regard 

for the restraints imposed by the statute 

and case law, and whether this 

interpretation of Justice Kennedy’s 

significant nexus standard is a reason, at 

a minimum because of the legal risk it 


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34Rapanos Guidance at 10. 

35Science Advisory Board, U.S. EPA. Review of 

the EPA Water Body Connectivity Report at 60 (Oct. 

17, 2014). 

36 Id. at 55. 37 Id. at 2. 

creates, to repeal the 2015 Rule. As 

discussed, the 2015 Rule included 

distance-based limitations that were not 

specified in the proposal. In light of 

this, the agencies also solicit comment 

on whether these distance-based 

limitations mitigated or affected the 

agencies’ change in interpretation of 

similarly situated waters in the 2015 

Rule. 

The agencies are also concerned that 

the 2015 Rule does not give sufficient 

effect to the term ‘‘navigable’’ in the 

CWA. See South Carolina v. Catawba 

Indian Tribe, 476 U.S. 498, 510 n.22 

(1986) (‘‘It is our duty to give effect, if 

possible, to every clause and word of a 

statute[.]’’ (quoting United States v. 

Menasche, 348 U.S. 528, 538–39 (1955)) 

(internal quotation marks omitted)). 

Justice Kennedy’s concurring opinion in 

Rapanos, on which the 2015 Rule relied 

heavily for its basis, recognized the term 

‘‘navigable’’ must have ‘‘some 

importance’’ and, if that word has any 

meaning, the CWA cannot be 

interpreted to ‘‘permit federal regulation 

whenever wetlands lie along a ditch or 

drain, however remote and 

insubstantial, that eventually may flow 

into traditional navigable waters.’’ 

Rapanos, 547 U.S. at 778–79 (Kennedy, 

J., concurring in judgment). When 

interpreting the Rapanos decision and 

its application for determining the scope 

of CWA jurisdiction in 2008, the 

agencies wrote ‘‘[p]rincipal 

considerations when evaluating 

significant nexus include the volume, 

duration, and frequency of the flow of 

water in the tributary and the proximity 

of the tributary to a traditional navigable 

water.’’ 34 The agencies are considering 

whether the 2015 Rule’s definitions of 

‘‘tributary’’ and ‘‘adjacent’’ were so 

broad as to eliminate consideration of 

these factors in a manner consistent 

with Justice Kennedy’s opinion and the 

CWA. 

The 2015 Rule stated that the agencies 

assessed ‘‘the significance of the nexus’’ 

to navigable water ‘‘in terms of the 

CWA’s objective to ‘restore and 

maintain the chemical, physical, and 

biological integrity of the Nation’s 

waters.’ ’’ 80 FR 37056 (quoting 33 

U.S.C. 1251(a)). Under the 2015 Rule, a 

significant nexus may be established by 

an individual water or by collectively 

considering ‘‘similarly situated’’ waters 

across a ‘‘region,’’ defined as ‘‘the 

watershed that drains to the nearest 

[primary] water identified.’’ Id. at 

37106. The agencies are now concerned 

that this broad reliance on biological 

functions, such as the provision of life 

cycle dependent aquatic habitat, may 

not comport with the CWA and Justice 

Kennedy’s statement in Rapanos that 

‘‘environmental concerns provide no 

reason to disregard limits in the 

statutory text.’’ See 547 U.S. at 778. In 

particular, the agencies are mindful that 

the Southern District of Georgia’s 

preliminary injunction of the 2015 Rule 

was based in part on the court’s holding 

that the 2015 Rule likely is flawed for 

the same reason as the Migratory Bird 

Rule: ‘‘the WOTUS Rule asserts that, 

standing alone, a significant ‘biological 

effect’—including an effect on ‘life cycle 

dependent aquatic habitat[s]’—would 

place a water within the CWA’s 

jurisdiction. Thus, this WOTUS Rule 

will likely fail for the same reason that 

the rule in SWANCC failed.’’ Georgia, 

2018 U.S. Dist. LEXIS 97223, at *18 

(quoting 33 CFR 328.3(c)(5)). The 

agencies solicit comment on whether 

the 2015 Rule is flawed in the same 

manner as the Migratory Bird Rule, 

including whether the 2015 Rule raises 

significant constitutional questions 

similar to the questions raised by the 

Migratory Bird Rule as discussed by the 

Supreme Court in SWANCC. 

Moreover, the 2015 Rule relied on a 

scientific literature review—the 

Connectivity Report—to support 

exerting federal jurisdiction over certain 

waters based on nine enumerated 

functions. See 80 FR 37065 (‘‘the 

agencies interpret the scope of ‘waters of 

the United States’ protected under the 

CWA based on the information and 

conclusions in the [Connectivity] 

Report’’). The report notes that 

connectivity ‘‘occur[s] on a continuum 

or gradient from highly connected to 

highly isolated,’’ and ‘‘[t]hese variations 

in the degree of connectivity are a 

critical consideration to the ecological 

integrity and sustainability of 

downstream waters.’’ Id. at 37057. In its 

review of a draft version of the 

Connectivity Report, EPA’s Science 

Advisory Board (‘‘SAB’’) noted, 

‘‘[s]patial proximity is one important 

determinant of the magnitude, 

frequency and duration of connections 

between wetlands and streams that will 

ultimately influence the fluxes of water, 

materials and biota between wetlands 

and downstream waters.’’ 35 ‘‘Wetlands 

that are situated alongside rivers and 

their tributaries are likely to be 

connected to those waters through the 

exchange of water, biota and chemicals. 

As the distance between a wetland and 

a flowing water system increases, these 

connections become less obvious.’’ 36

The Connectivity Report also recognizes 

that ‘‘areas that are closer to rivers and 

streams have a higher probability of 

being connected than areas farther 

away.’’ Connectivity Report at ES–4. 

Yet, the SAB observed that ‘‘[t]he 

Report is a science, not policy, 

document that was written to 

summarize the current understanding of 

connectivity or isolation of streams and 

wetlands relative to large water bodies 

such as rivers, lakes, estuaries, and 

oceans.’’ 37 ‘‘The SAB also 

recommended that the agencies clarify 

in the preamble to the final rule that 

‘significant nexus’ is a legal term, not a 

scientific one.’’ 80 FR 37065. And in 

issuing the 2015 Rule, the agencies 

stated, ‘‘the science does not provide a 

precise point along the continuum at 

which waters provide only speculative 

or insubstantial functions to 

downstream waters.’’ Id. at 37090. 

The agencies now believe that they 

previously placed too much emphasis 

on the information and conclusions of 

the Connectivity Report when setting 

jurisdictional lines in the 2015 Rule, 

relying on its environmental 

conclusions in place of interpreting the 

statutory text and other indicia of 

Congressional intent to ensure that the 

agencies’ regulations comport with their 

statutory authority to regulate. This is of 

particular concern to the agencies today 

with respect to the agencies’ broad 

application of Justice Kennedy’s phrase 

‘‘similarly situated lands. ’’ As 

discussed previously, the agencies took 

an expansive reading of this phrase, in 

part based on ‘‘one of the main 

conclusions of the [Connectivity Report] 

. . . that the incremental contributions 

of individual streams and wetlands are 

cumulative across entire watersheds, 

and their effects on downstream waters 

should be evaluated within the context 

of other streams and wetlands in that 

watershed,’’ see 80 FR 37066. Yet, 

Justice Kennedy observed in Rapanos 

that what constitutes a ‘‘significant 

nexus’’ to the waters of the United 

States is not a solely scientific question 

and that it cannot be determined by 

environmental effects alone. See, e.g., 

547 U.S. at 777–78 (noting that although 

‘‘[s]cientific evidence indicates that 

wetlands play a critical role in 

controlling and filtering runoff . . . 

environmental concerns provide no 

reason to disregard limits in the 

statutory text’’ (citations omitted)). This 

includes how Congress’ use of the term 

‘‘navigable’’ in the CWA and how the 

policies embodied in section 101(b) 

should inform this analysis. Justice 

Kennedy wrote that ‘‘the Corps deems a 


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water a tributary if it feeds into a 

traditional navigable water (or a 

tributary thereof) and possesses an 

ordinary high-water mark,’’ defined as a 

‘‘line on the shore established by the 

fluctuations of water and indicated by 

[certain] physical characteristics.’’ Id. at 

781. This ‘‘may well provide a 

reasonable measure of whether specific 

minor tributaries bear a sufficient nexus 

with other regulated waters to constitute 

‘navigable waters’ under the Act. Yet the 

breadth of this standard—which seems 

to leave wide room for regulation of 

drains, ditches, and streams remote 

from any navigable-in-fact water and 

carrying only minor volumes toward 

it—precludes its adoption as the 

determinative measure of whether 

adjacent wetlands are likely to play an 

important role in the integrity of an 

aquatic system comprising navigable 

waters as traditionally understood.’’ Id. 

(emphasis added). 

The 2015 Rule, by contrast, asserts 

jurisdiction categorically over any 

tributary, including all ephemeral and 

intermittent streams that meet the rule’s 

tributary definition, as well as all 

wetlands and other waters that are 

within certain specified distances from 

a broadly defined category of tributaries 

(e.g., all waters located within the 100- 

year floodplain of a category (1) through 

(5) ‘‘jurisdictional by rule’’ water and 

not more than 1,500 feet from the 

ordinary high water mark of such 

water). According to the rule, tributaries 

are characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark and 

eventually contribute flow (directly or 

indirectly) to a traditional navigable 

water, interstate water, or territorial sea 

that may be a considerable distance 

away. See 80 FR 37105. The 2015 Rule 

defined ‘‘ordinary high water mark’’ as 

‘‘that line on the shore established by 

the fluctuations of water and indicated 

by physical characteristics such as a 

clear, natural line impressed on the 

bank, shelving, changes in the character 

of soil, destruction of terrestrial 

vegetation, the presence of litter and 

debris, or other appropriate means that 

consider the characteristics of the 

surrounding areas.’’ Id. at 37106. The 

2015 Rule did not require any 

assessment of flow, including volume, 

duration, or frequency, when defining 

the ‘‘waters of the United States.’’ 

Instead, the 2015 Rule concluded that it 

was reasonable to presume that ‘‘[t]hese 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary.’’ Id. at 37105. 

The 2015 Rule thus covers ephemeral 

washes that flow only in response to 

infrequent precipitation events if they 

meet the definition of tributary. These 

results, particularly that adjacent 

waters, broadly defined, are 

categorically jurisdictional no matter 

how small or frequently flowing the 

tributary to which they are adjacent, is, 

at a minimum, in significant tension 

with Justice Kennedy’s understanding of 

the term significant nexus as explained 

in Rapanos. See id. at 781–82 (‘‘[I]n 

many cases wetlands adjacent to 

tributaries covered by [the Corps’ 1986 

tributary] standard might appear little 

more related to navigable-in-fact waters 

than were the isolated ponds held to fall 

beyond the Act’s scope in SWANCC.’’). 

The agencies are mindful that courts 

that have considered the merits of 

challenges to the 2015 Rule have 

similarly observed that the rule may 

conflict with Justice Kennedy’s opinion 

in Rapanos, particularly the rule’s 

definition of ‘‘tributary.’’ The District of 

North Dakota found that the definitions 

in the 2015 Rule raise ‘‘precisely the 

concern Justice Kennedy had in 

Rapanos, and indeed the general 

definition of tributary [in the 2015 Rule] 

is strikingly similar’’ to the standard for 

tributaries that concerned Justice 

Kennedy in Rapanos. North Dakota, 127 

F. Supp. 3d at 1056. The Southern 

District of Georgia also found that the 

2015 Rule’s definition of ‘‘tributary’’ ‘‘is 

similar to the one’’ at issue in Rapanos, 

and that ‘‘it carries with it the same 

concern that Justice Kennedy had 

there.’’ Georgia, 2018 U.S. Dist. LEXIS 

97223, at *17. Likewise, the Sixth 

Circuit stated in response to petitioners’ 

‘‘claim that the Rule’s treatment of 

tributaries, ‘adjacent waters,’ and waters 

having a ‘significant nexus’ to navigable 

waters is at odds with the Supreme 

Court’s ruling in Rapanos’’ that ‘‘[e]ven 

assuming, for present purposes, as the 

parties do, that Justice Kennedy’s 

opinion in Rapanos represents the best 

instruction on the permissible 

parameters of ‘waters of the United 

States’ as used in the Clean Water Act, 

it is far from clear that the new Rule’s 

distance limitations are harmonious 

with the instruction.’’ In re EPA, 803 

F.3d at 807 & n.3 (noting that ‘‘[t]here 

are real questions regarding the 

collective meaning of the [Supreme] 

Court’s fragmented opinions in 

Rapanos’’). 

One example that illustrates this point 

is the ‘‘seasonally ponded, abandoned 

gravel mining depressions’’ specifically 

at issue in SWANCC, 531 U.S. at 164, 

which the Supreme Court determined 

were ‘‘nonnavigable, isolated, intrastate 

waters,’’ id. at 166–72, and not 

jurisdictional. These depressions are 

located within 4,000 feet of Poplar 

Creek, a tributary to the Fox River, and 

may have the ability to store runoff or 

contribute other ecological functions in 

the watershed. Thus, they would be 

subject to, and might satisfy, a 

significant nexus determination under 

the 2015 Rule’s case-specific analysis. 

However, Justice Kennedy himself 

stated in Rapanos, which informed the 

significant nexus standard articulated in 

the rule, that, ‘‘[b]ecause such a 

[significant] nexus was lacking with 

respect to isolated ponds, the 

[SWANCC] Court held the plain text of 

the statute did not permit’’ the Corps to 

assert jurisdiction over them. 547 U.S. at 

767. Other potential examples of the 

breadth of the significant nexus 

standard articulated in the 2015 Rule 

are provided below in the next section. 

3. Concerns Regarding the 2015 Rule’s 

Effect on the Scope of CWA Jurisdiction 

The agencies asserted in the preamble 

to the 2015 Rule that ‘‘State, tribal, and 

local governments have well-defined 

and longstanding relationships with the 

Federal government in implementing 

CWA programs and these relationships 

are not altered by the final rule.’’ 80 FR 

37054. The agencies further noted that 

‘‘[c]ompared to the current regulations 

and historic practice of making 

jurisdictional determinations, the scope 

of jurisdictional waters will decrease’’ 

under the 2015 Rule. Id. at 37101. When 

compared to more recent practice, 

however, the agencies determined that 

the 2015 Rule would result ‘‘in an 

estimated increase between 2.84 and 

4.65 percent in positive jurisdictional 

determinations annually.’’ Id. The 

agencies thus concluded that the 2015 

Rule would ‘‘result in a small overall 

increase in positive jurisdiction 

determinations compared to those made 

under the Rapanos Guidance’’ and that 

the ‘‘net effect’’ of the regulatory 

changes would ‘‘be marginal at most.’’ 

Brief for Respondents at 32–33 & n.6, In 

re EPA, No. 15–3571 (6th Cir. Jan. 13, 

2017). Since publication of the final 

rule, the agencies have received 

information about the impact of these 

changes, including through filings in 

litigation against the 2015 Rule and 

comments received in response to the 

July 27, 2017 NPRM. After further 

analysis and reconsideration of how the 

2015 Rule is likely to impact 

jurisdictional determinations, including 

how the data on those impacts relate to 

the specific regulatory changes made in 

the 2015 Rule, the agencies are now 

considering whether the definitional 

changes in the 2015 Rule would have a 

more substantial impact on the scope of 


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38Addressing farmers in Missouri in July 2014, 

then-EPA Administrator Gina McCarthy stated that 

no additional CWA permits would be required 

under the proposed 2015 Rule. See: http://

www.farmfutures.com/story-epas-mccarthy-ditchmyths-waters-rule-8-114845 (‘‘The bottom line with 

this proposal is that if you weren’t supposed to get 

a permit before, you don’t need to get one now.’’). 

39U.S. EPA. Facts About the Waters of the U.S. 

Proposal at 4 (July 1, 2014), available at https://

www.regulations.gov/ 

contentStreamer?documentId=EPA-HQ-OW-2011- 

0880-16357&attachmentNumber=38&

contentType=pdf (‘‘The proposed rule does not 

expand jurisdiction.’’). 

40U.S. EPA blog post entitled ‘‘Setting the Record 

Straight on Waters of the US’’ (June 30, 2014), 

available at https://blog.epa.gov/blog/2014/06/ 

setting-the-record-straight-on-wous/ (‘‘The proposed 

rule does not expand jurisdiction.’’). 

41 In a hearing before the House Committee on 

Science, Space, and Technology entitled 

‘‘Navigating the Clean Water Act: Is Water Wet?’’ 

(July 9, 2014), then-Deputy EPA Administrator Bob 

Perciasepe told the Committee that the agencies are 

not expanding the jurisdiction of the CWA. See 

https://science.house.gov/legislation/hearings/fullcommittee-hearing-navigating-clean-water-actwater-wet. 

42 2015 Rule Economic Analysis at 7. 

43 2015 Rule Economic Analysis at 9. 

jurisdictional determinations made 

pursuant to the CWA than 

acknowledged in the analysis for the 

rule and would thus impact the balance 

between federal, state, tribal, and local 

government in a way that gives 

inadequate consideration to the 

overarching Congressional policy to 

‘‘recognize, preserve, and protect the 

primary responsibilities and rights of 

States to prevent, reduce, and eliminate 

pollution’’ and ‘‘to plan the 

development and use . . . of land and 

water resources. . . .’’ 33 U.S.C. 

1251(b). 

Between the agencies’ ‘‘historic’’ (i.e., 

1986 regulations) and ‘‘recent’’ practices 

of making jurisdictional determinations 

under the Rapanos Guidance, the 

Supreme Court held that the agencies’ 

application of the 1986 regulation was 

overbroad in some important respects. 

See SWANCC, 531 U.S. at 174 (reversing 

and remanding the assertion of 

jurisdiction); Rapanos, 547 U.S. at 715 

(vacating and remanding, for further 

analysis, the assertion of CWA 

jurisdiction). Throughout the 

rulemaking process for the 2015 Rule, 

the agencies stressed in public 

statements,38 fact sheets,39 blog posts,40

and before Congress 41 that the rule 

would not significantly expand the 

jurisdictional reach of the CWA. Some 

commenters questioned the accuracy of 

these statements during the rulemaking 

process for the 2015 Rule and in 

response to the July 27, 2017 NPRM. 

The court in North Dakota questioned 

the scope of waters subject to the 2015 

Rule, and based its preliminary 

injunction in principal part on those 

doubts, stating, for example, that ‘‘the 

definition of tributary’’ in the 2015 Rule 

‘‘includes vast numbers of waters that 

are unlikely to have a nexus to 

navigable waters within any reasonable 

understanding of the term.’’ 127 F. 

Supp. 3d at 1056; see also In re EPA, 

803 F.3d at 807 (finding that ‘‘it is far 

from clear that the new Rule’s distance 

limitations are harmonious’’ with 

Justice Kennedy’s significant nexus test 

in Rapanos); Georgia, 2018 U.S. Dist. 

LEXIS 97223, at *17 (holding that the 

2015 Rule’s ‘‘tributary’’ definition ‘‘is 

similar to the one invalidated in 

Rapanos, and it carries with it the same 

concern that Justice Kennedy had 

there’’). 

Given the concerns raised by some 

commenters and the federal courts, the 

agencies have reviewed data previously 

relied upon to conclude that the 2015 

Rule would have no or ‘‘marginal at 

most’’ impacts on jurisdictional 

determinations, Brief for Respondents at 

32 n.6, In re EPA, No. 15–3571 (6th Cir. 

Jan. 13, 2017), and are reconsidering the 

validity of this conclusion. The agencies 

solicit comment on whether the 

agencies appropriately characterized or 

estimated the potential scope of CWA 

jurisdiction that could change under the 

2015 Rule, including whether the 

documents supporting the 2015 Rule 

appropriately considered the data 

relevant to and were clear in that 

assessment. 

For example, the agencies relied upon 

an examination of the documents 

supporting the estimated 2.84 to 4.65 

percent annual increase in positive 

approved jurisdictional determinations 

(AJDs) to conclude that the 2015 Rule 

would only ‘‘result in a small overall 

increase in positive jurisdictional 

determinations compared to those made 

under the Rapanos Guidance.’’ See Brief 

for Respondents at 32, In re EPA, No. 

15–3571 (6th Cir. Jan. 13, 2017). 

However, others have raised concerns 

that this information and other data 

show the 2015 Rule may have expanded 

jurisdiction more significantly, 

particularly with respect to so-called 

‘‘other waters’’ that are not adjacent to 

navigable waters and their tributaries. 

In developing the 2015 Rule, the 

agencies examined records in the Corps’ 

Operation and Maintenance Business 

Information Link, Regulatory Module 

(ORM2) database that documents 

jurisdictional determinations associated 

with various aquatic resource types, 

including an isolated waters category. 

‘‘The isolated waters category is used in 

the Corps’ ORM2 database to represent 

intrastate, non-navigable waters; 

including wetlands, lakes, ponds, 

streams, and ditches, that lack a direct 

surface connection to other waterways. 

These waters are hereafter referred to as 

‘ORM2 other waters.’ ’’ 42 To examine 

how assertion of jurisdiction could 

change under the 2015 Rule, the 

agencies reviewed ORM2 aquatic 

resource records from Fiscal Year 

(FY)13 and FY14 and placed them into 

three groups: Streams (ORM2 categories 

of traditionally navigable waters, 

relatively permanent waters, and nonrelatively permanent waters), wetlands 

adjacent to the stream category group, 

and other waters. Of the 160,087 records 

for FY13 and FY14, streams represented 

65 percent of the total records available, 

wetlands represented 29 percent, and 

other waters represented 6 percent. 

From this baseline, the agencies 

assumed that 100 percent of the records 

classified as streams would meet the 

jurisdictional tests established in the 

final rule, and 100 percent of the 

records classified as adjacent wetlands 

would meet the definition of adjacent in 

the final rule. These assumptions 

resulted in a relatively minor projected 

increase in positive jurisdictional 

determinations under the final rule for 

these categories: 99.3 to 100 percent for 

the streams category, and 98.9 to 100 

percent for the wetlands category. 

The agencies also performed a 

detailed analysis of the other waters 

category to determine whether 

jurisdiction might change for those 

waters under the final rule. In total, 

‘‘these files represented over 782 

individual waters in 32 states.’’ 43

Of the existing negative 

determinations for other waters, the 

agencies made the following estimates: 

• 17.1 percent of the negative 

jurisdictional determinations for other 

waters would become positive under the 

2015 Rule because the aquatic resources 

would meet the new definition of 

adjacent waters. See 80 FR 37105. These 

waters fall within the 100-year 

floodplain and are within 1,500 feet of 

a stream included in the United States 

Geological Survey’s (USGS) National 

Hydrography Dataset (NHD). 

• 15.7 percent of the other waters 

could become jurisdictional under 

category (7) of the 2015 Rule following 

a significant nexus analysis. See id. at 

37104–05. 

• 1.7 percent of the other waters 

could become jurisdictional under 

category (8) of the 2015 Rule following 

a significant nexus analysis. See id. at 

37105. 

In total, the agencies estimated that 

34.5 percent of the other waters 

represented in the FY13 and FY14 

ORM2 database could become 

jurisdictional under the 2015 Rule after 


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44 2015 Rule Economic Analysis at 5, 12. 

45U.S. EPA and U.S. Army Corps of Engineers. 

Economic Analysis of Proposed Revised Definition 

of Waters of the United States at 12, Exhibit 3 (Mar. 

2014) (Docket ID: EPA–HQ–OW–2011–0880–0003), 

available at https://www.regulations.gov/ 

document?D=EPA-HQ-OW-2011-0880-0003. 

46 2015 Rule Economic Analysis at 13, Figure 2. 

47The following summarizes the methodology 

used to derive the low-end estimated increase in 

jurisdiction of 2.84 percent: Streams account for 

103,591 of the 160,087 total records (64.709 percent 

of the total ORM2 records) and 100 percent of 

streams are assumed to be jurisdictional under the 

final rule compared to 99.3 percent under previous 

practice (100 percent minus 99.3 percent = 0.7 

percent). The relative contribution of streams to the 

overall change in jurisdictional determinations is 

thus 64.709 percent multiplied by 0.7 percent for 

a total of 0.45 percent. Wetlands account for 46,781 

of the 160,087 total records (29.222 percent of the 

total ORM2 records) and 100 percent of wetlands 

are assumed to be jurisdictional under the final rule 

compared to 98.9 percent under previous practice 

(100 percent minus 98.9 percent = 1.1 percent). The 

relative contribution of wetlands to the overall 

estimated change in jurisdictional determinations is 

thus 29.222 percent multiplied by 1.1 percent for 

a total of 0.32 percent. Other waters account for 

9,715 of the 160,087 total records (6.069 percent of 

the total ORM2 records) and 34.5 percent of other 

waters are assumed to be jurisdictional under the 

final rule compared to 0.0 percent under previous 

practice (34.5 percent minus 0.0 percent = 34.5 

percent). The relative contribution of other waters 

to the overall estimated change in jurisdictional 

determinations is thus 6.069 percent multiplied by 

34.5 percent for a total of 2.09 percent. The agencies 

then added the relative contribution to the overall 

estimated change in jurisdictional determinations 

for each category of waters (i.e., 0.45 percent for 

streams, 0.32 percent for wetlands, and 2.09 percent 

for other waters) to get a total projected change in 

positive jurisdictional determinations of 2.86 

percent. The differences between this calculation 

and the reported 2.84 percent in the 2015 Rule 

Economic Analysis may be the result of rounding 

error. 

48U.S. EPA. Supporting Documentation: Analysis 

of Jurisdictional Determinations for Economic 

Analysis and Rule (Docket ID: EPA–HQ–OW–2011– 

0880–20877), available at https://

www.regulations.gov/document?D=EPA-HQ-OW2011-0880-20877. 

49U.S. EPA and U.S. Army Corps of Engineers. 

Supporting Documentation: Jurisdictional 

Determinations (Docket ID: EPA–HQ–OW–2011– 

0880–20876), available at https://

www.regulations.gov/document?D=EPA-HQ-OW2011-0880-20876. 

having been declared not jurisdictional 

under the existing regulations and 

agency guidance. Thus, while the 

agencies acknowledged in the 2015 Rule 

Economic Analysis that ‘‘[f]ollowing the 

Supreme Court decisions in SWANCC 

(2001) and Rapanos (2006), the agencies 

no longer asserted CWA jurisdiction 

over isolated waters,’’ the agencies 

estimated in the 2015 Rule Economic 

Analysis that 34.5 percent of the other 

waters category could become 

jurisdictional under the 2015 Rule.44 By 

way of comparison, a similar analysis of 

this category of other waters performed 

in support of the proposed rule in 2014 

(using FY09 and FY10 data from the 

ORM2 database) estimated that 17 

percent of the negative jurisdictional for 

other waters would become positive.45

While the Economic Analysis for the 

2015 Rule estimated that 34.5 percent of 

negative jurisdictional determinations 

for other waters would become 

positive,46 the agencies nevertheless 

premised the 2015 Rule on assertions 

that the ‘‘scope of jurisdiction in this 

rule is narrower than that under the 

existing regulation,’’ the scope of 

jurisdiction in the rule would result ‘‘in 

an estimated increase between 2.84 and 

4.65 percent in positive jurisdictional 

determinations annually’’ based on 

existing practice, and that such impacts 

would be ‘‘small overall’’ and ‘‘marginal 

at most.’’ See 80 FR 37054, 37101; Brief 

for Respondents at 32–33 & n.6, In re 

EPA, No. 15–3571 (6th Cir. Jan. 13, 

2017). The agencies are examining these 

statements and how this data relates 

specifically to the regulatory changes 

made in the 2015 Rule (as opposed to 

those provisions which already 

subjected many streams and wetlands to 

CWA jurisdiction). The agencies request 

comment on whether the projected 

increase for this category is most 

relevant to measuring the impacts of the 

2015 Rule, whether the public had 

ample notice of the doubling of 

projected positive jurisdiction over the 

other waters category from the proposed 

to final rule, and whether the final rule 

could expand overall CWA positive 

jurisdictional determinations by a 

material amount inconsistent with the 

findings and conclusions that justified 

the 2015 Rule. 

In particular, the agencies seek 

comment on the conclusions that were 

based on the method that estimated a 

2.84 to 4.65 percent increase in overall 

jurisdiction, including the use of a 

method whereby the increase in 

assertion of jurisdiction in a particular 

category of waters (e.g., streams, 

wetlands, and other waters) was 

proportionally applied based on the raw 

number of records in a category relative 

to the total number of records across all 

categories in the ORM2 database, 

notwithstanding whether the regulatory 

changes in the 2015 Rule did not 

materially impact those other categories. 

For example, of the 160,087 records in 

the ORM2 database for FY13 and FY14, 

103,591 were associated with the 

streams category, 46,781 were 

associated with the wetlands category, 

and 9,715 were related to the other 

waters category. Thus, although 34.5 

percent of previously non-jurisdictional 

‘‘other waters’’ would become 

jurisdictional under the 2015 Rule, the 

proportional method used in the 2015 

Rule Economic Analysis resulted in 

only an estimated 2.09 percent increase 

in positive jurisdictional determinations 

for ‘‘other waters’’ relative to the total 

number of jurisdictional determinations 

considered.47

In addition, the record for the 2015 

Rule includes a 57-page document 

entitled ‘‘Supporting Documentation: 

Analysis of Jurisdictional 

Determinations for Economic Analysis 

and Rule,’’ 48 along with an 

accompanying 3,695 page document of 

approved jurisdictional determination 

(AJD) forms.49 This contains the 

agencies’ assessment conducted in April 

2015 of almost two hundred previously 

performed AJDs to help the agencies 

better understand how waters might 

change jurisdictional status based on the 

distance limitations included in the 

final 2015 Rule for adjacent and casespecific waters (see 80 FR 37105), 

including where they might no longer 

be jurisdictional under the final rule. 

Certain examples included in the 

assessment suggest that the 2015 Rule 

could modify CWA jurisdiction over 

waters that were deemed not 

jurisdictional under the 1986 regulatory 

framework and Supreme Court 

precedent. The agencies request 

comment on whether the examples 

illustrate the concerns expressed by the 

recent court decisions discussed above 

that the 2015 Rule may have exceeded 

the significant nexus standard 

articulated by Justice Kennedy in the 

Rapanos opinion and concerns 

expressed by certain commenters that 

the 2015 Rule may have created 

additional regulatory uncertainty over 

waters that were previously thought 

beyond the scope of CWA jurisdiction. 

The examples are intended to be 

illustrative, and are not intended to 

attempt to quantify or reassess previous 

estimates of CWA jurisdiction, as the 

agencies are not aware of any map or 

dataset that accurately or with any 

precision portrays CWA jurisdiction at 

any point in the history of this complex 

regulatory program. 

In the first example, a property in 

Chesapeake, Virginia, was reviewed by 

the Corps’ Norfolk District in early 

January 2014 and again in March 2015 

and was determined not to contain 

jurisdictional wetlands because the 

wetlands on the property lacked a 

hydrological surface connection of any 

duration, frequency, or volume of flow 

to other jurisdictional waters. The Corps 

noted that the wetlands ‘‘appear to be 

dependent upon groundwater for 

hydrology, and have no surface 

connections’’ to nearby tributaries, the 

closest one of which was approximately 

80 feet from the wetland. The agencies 


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50 Id. at 2082–83. 

51Available at: http://www.lrc.usace.army.mil/ 

Portals/36/docs/regulatory/jd/lrcnjd02-2015.pdf 

(page 1 and 2). 

later stated that the wetland features 

‘‘would be jurisdictional under the new 

rule’’ because they are ‘‘within 100-feet 

of a tributary’’ and would thus meet the 

rule’s definition of ‘‘neighboring’’ and, 

in turn, ‘‘adjacent.’’ Further information 

regarding this AJD and property has 

been added to the docket for the NPRM 

and is identified as ‘‘Case Study A—AJD 

Number NAO–2014–2269’’ (see Support 

Document). 

In another example, the Corps’ 

Buffalo District reviewed a small 

wetland approximately 583 feet away 

from the Johlin Ditch near Toledo, Ohio, 

which eventually leads north to Lake 

Erie. After conducting a field 

investigation in September 2014, the 

Corps determined that the wetlands 

were not jurisdictional because the 

‘‘wetlands are isolated and there is no 

surface water connections [sic] and the 

only potential jurisdiction would be the 

[Migratory Bird Rule],’’ noting that the 

area previously would have been 

regulated under the Migratory Bird Rule 

prior to the Supreme Court’s SWANCC 

decision. The agencies later stated that 

the wetlands would be jurisdictional 

under the 2015 Rule. Further 

information regarding this AJD and 

property has been added to the docket 

for the NPRM and is identified as ‘‘Case 

Study B—AJD Number 2004–001914’’ 

(see Support Document). 

In another example, the Corps’ 

Memphis District reviewed a borrow pit 

on a property in Mississippi County, 

Missouri, and concluded that the 

borrow pit did not contain jurisdictional 

wetlands. The project area was 

described in the AJD as follows: 

The borrow pit has been abandoned for 

some time. Vegetation consists mainly of 

black willow (Salix nigra) and poison ivy 

(Toxicodendron radicans). A site visit was 

conducted on 8 December 2014. The borrow 

pit is bordered by agricultural land on three 

sides and County Road K on the western 

border. There are no surface water 

connections to other waters of the U.S. A 

sample was taken within the site and all 

three parameters for a wetland are present. 

The Soil Survey book for Cape Girardeau, 

Mississippi and Scott Counties Missouri, 

compiled in 1974 and 1975 from aerial 

photography indicates no drainage into or 

out of the project site. The area is an isolated 

wetland approximately 7.6 acres in size. 

The abandoned pit in this example 

was 2,184 feet from the nearest 

‘‘tributary,’’ a feature that itself appears 

to be a ditch in an agricultural field. The 

wetlands in the borrow pit were 

determined by the Corps to be isolated 

and non-jurisdictional ‘‘with no 

substantial nexus to interstate (or 

foreign) commerce’’ and on the basis 

that ‘‘prior to . . .‘’SWANCC,’ the 

review area would have been regulated 

based solely on the ‘Migratory Bird 

Rule.’ ’’ A later review by the agencies, 

however, stated that these wetlands 

would be jurisdictional under the 2015 

Rule. Further information regarding this 

property and associated AJD has been 

added to the docket for the NPRM and 

is identified as ‘‘Case Study C—AJD 

Number MVM–2014–460’’ (see Support 

Document). 

In another example, the Corps’ New 

England District reviewed a ‘‘mowed 

wet meadow within a mowed hayfield’’ 

in Greensboro, Vermont, in August 2012 

and concluded the site did not contain 

jurisdictional wetlands. The AJD 

described the wetlands as ‘‘surrounded 

on all sides by similar upland,’’ ‘‘500′– 

985′ away’’ from the nearest 

jurisdictional waters, and ‘‘isolated 

intrastate waters with no outlet, no 

hydrological connection to the Lamoille 

River, no nexus to interstate commerce, 

and no significant nexus to the Lamoille 

River (located about 1.7–1.8 miles 

southeast of the site).’’ A later review by 

the agencies, however, stated the 

wetlands would be jurisdictional under 

the 2015 Rule. Further information 

regarding this property and associated 

AJD has been added to the docket for 

the NPRM and is identified as ‘‘Case 

Study D—AJD Number NAE–2012– 

1813’’ (see Support Document). 

In another example, the Corps’ 

Chicago District completed AJD number 

LRC–2015–31 for wetlands in 

agricultural fields in Kane County, 

Illinois, in January 2015. AJD Number 

LRC–2015–31 was completed using two 

separate AJD forms: One form for the 

features at the project site that were 

determined to be jurisdictional 

according to the Rapanos Guidance 

(‘‘positive AJD form’’) and a second 

form for the features at the site that the 

Corps determined were not 

jurisdictional under the Rapanos 

Guidance (‘‘negative AJD form’’). Only 

the positive AJD form was included in 

the docket in Supporting 

Documentation entitled, ‘‘Jurisdictional 

Determinations—Redacted.’’ 50 The 

negative AJD form is available on the 

Chicago District website.51

Using a field determination and desk 

determinations, the Corps found on the 

AJD form that there were ‘‘no ‘waters of 

the U.S.’ within Clean Water Act (CWA) 

jurisdiction (as defined by 33 CFR part 

328) in the review area.’’ The Corps 

described the project area in the AJD 

form as follows: ‘‘Wetland A is a 1.37 

acre high quality closed depressional 

isolated wetland. Wetlands B and C 

(0.08 ac and 0.15 ac) are isolated 

wetlands that formed over a failed drain 

tile and are over 1,200 feet away from 

the closest jurisdictional waterway.’’ 

The AJD also notes, ‘‘Weland [sic] A and 

the area around Wetlands B and C were 

previously determined to be isolated in 

2008. Wetland C is mapped as Prior 

Converted in a NRCS certified farmed 

wetland determination—other areas are 

mapped as not inventoried.’’ Upon later 

reviewing the negative AJD, however, 

the agencies determined the wetlands 

would be ‘‘now Yes JD’’ under the 2015 

Rule. Further information regarding this 

property and associated positive and 

negative AJDs has been added to the 

docket for the NPRM and is identified 

as ‘‘Case Study E—AJD Number LRC– 

2015–31’’ (see Support Document). 

In another example, the Corps’ 

Pittsburgh District visited a property in 

Butler, Pennsylvania, in October 2014 

and determined the site did not contain 

waters of the United States because the 

wetland was ‘‘completely isolated and 

has no nexus to a TNW or interstate or 

foreign commerce.’’ The Corps noted 

that the wetland would have been 

regulated based solely on the Migratory 

Bird Rule prior to the decision in 

SWANCC. Upon reviewing the AJD, the 

agencies later stated the wetland is 

‘‘[i]solated but would have flood storage 

function.’’ The agencies’ review notes 

that the wetland is 1,270 feet from the 

nearest relatively permanent water 

(RPW) or traditional navigable water 

(TNW). Given the wetland is within 

4,000 feet of a tributary and the agencies 

have stated it possesses at least one of 

the nine functions relevant to the 

significant nexus evaluation, see 80 FR 

37106 (i.e., retention and attenuation of 

flood waters), the wetland would be 

subject to a significant nexus evaluation 

under the 2015 Rule. It is unclear, 

however, whether the wetland and its 

flood storage function would contribute 

significantly to the chemical, physical, 

or biological integrity of the nearest 

category (1) through (3) water as 

required by the 2015 Rule to satisfy the 

significant nexus test. Further 

information regarding this property and 

associated AJD has been added to the 

docket for the NPRM and is identified 

as ‘‘Case Study F—AJD Number LRP 

2014–855’’ (see Support Document). 

In addition to the projected increase 

in positive jurisdictional determinations 

and the above examples of expected JD 

changes, an examination of the 

documents supporting the estimated 

2.84 to 4.65 percent annual increase in 

positive AJDs raises concerns that the 

2015 Rule may have significantly 

expanded jurisdiction over tributaries in 


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52 2015 Rule Economic Analysis at 8. 

53The table includes all states except Hawaii. 

54See comments submitted by Arizona 

Department of Environmental Quality et al. (Nov. 

14, 2014) (Docket ID: EPA–HQ–OW–2011–0880– 

15096), available at https://www.regulations.gov/ 

document?D=EPA-HQ-OW-2011-0880-15096; 

comments submitted by CropLife America (Nov. 14, 

2014) (Docket ID: EPA–HQ–OW–2011–0880– 

14630), available at https://www.regulations.gov/ 

document?D=EPA-HQ-OW-2011-0880-14630; 

comments submitted by American Foundry Society 

(Nov. 14, 2014) (Docket ID: EPA–HQ–OW–2011– 

0880–15148), available at https://

www.regulations.gov/document?D=EPA-HQ-OW2011-0880-15148; comments submitted by U.S. 

Chamber of Commerce et al. (Nov. 12, 2014) (Docket 

ID: EPA–HQ–OW–2011–0880–14115), available at 

https://www.regulations.gov/document?D=EPA-HQOW-2011-0880-14115. 

55See U.S. EPA and U.S. Army Corps of 

Engineers. Clean Water Rule Response to 

Comments—Topic 8: Tributaries at 88–89, available 

at https://www.epa.gov/sites/production/files/2015- 

06/documents/cwr_response_to_comments_8_

tributaries.pdf. 

56EPA Administrator Gina McCarthy testimony 

before the U.S. House of Representatives 

Appropriations Committee Subcommittee on 

Interior, Environment, and Related Agencies (March 

27, 2014), available at https://www.c-span.org/ 

video/?318438-1/fy2015-epa-budget. 

57Letter from Nancy Stoner, Acting Asst. 

Administrator, U.S. EPA Office of Water, to Rep. 

Lamar Smith, Chairman, U.S. House of 

Representatives Committee on Science, Space, and 

Technology (July 28, 2014), available at https://

science.house.gov/sites/ 

republicans.science.house.gov/files/documents/ 

epa_releases_maps_letter.pdf. 

58EPA State and National Maps of Waters and 

Wetlands, available at https://science.house.gov/ 

epa-state-and-national-maps-waters-and-wetlands. 

59See comments submitted by Alabama Dept. of 

Environ. Mgmt., Arizona Dept. of Environ. Quality, 

certain States, particularly those in more 

arid parts of the country. 

As described previously, to assess 

how assertion of jurisdiction may 

change under the 2015 Rule, the 

agencies reviewed ORM2 aquatic 

resource records from FY13 and FY14 

and placed the aquatic resources into 

three groups: Streams, wetlands 

adjacent to the stream category group, 

and other waters. With respect to the 

streams category, the agencies assumed 

that ‘‘100 percent of the records 

classified as streams will meet the 

definition of tributary in the final 

rule,’’ 52 resulting in a relatively minor 

projected increase in positive 

jurisdictional determinations under the 

final rule for streams: 99.3 percent to 

100 percent, or a 0.7 percent increase. 

However, the agencies have 

reexamined the 57-page ‘‘Supporting 

Documentation: Analysis of 

Jurisdictional Determinations for 

Economic Analysis and Rule’’ and have 

questions regarding the minor projected 

increase in positive jurisdictional 

determinations over streams in some 

states. An untitled table on page 46 of 

the supporting document lists an 

analysis of a subset of streams and the 

number of those streams estimated to be 

non-jurisdictional by State in the FY13– 

FY14 ORM2 records for the purpose of 

estimating stream mitigation costs 

associated with the 2015 Rule.53

Investigating the percent of streams 

estimated to be non-jurisdictional on a 

State-by-State basis coupled with the 

2015 Rule Economic Analysis’s 

assumption that 100 percent of the 

stream jurisdictional determinations 

will be positive under the 2015 Rule 

could indicate that there may be a 

significant expansion of jurisdiction 

over tributaries in some States beyond 

current practice. For example, in the 

FY13–FY14 ORM2 records for Arizona, 

the table identifies 709 of 1,070 total 

streams (66.3 percent) were nonjurisdictional. For Arkansas, the table 

identifies 116 of 213 total streams (54.5 

percent) as non-jurisdictional. In South 

Dakota, North Dakota, Nevada, New 

Mexico, and Wyoming, 8.5 percent, 9.2 

percent, 13.2 percent, 16.7 percent, and 

57.1 percent of streams in the FY13– 

FY14 ORM2 database, respectively, 

were identified in the table as nonjurisdictional. The agencies are 

concerned that because the 2015 Rule 

may assert jurisdiction over 100 percent 

of streams as the agencies assumed in 

the 2015 Rule Economic Analysis, 

certain States, particularly those in the 

arid West, would see significant 

expansions of federal jurisdiction over 

streams. The agencies solicit comment 

on whether such expansions conflict 

with the assumptions underlying and 

statements justifying the 2015 Rule, and 

if such expansions were consistent with 

the policy goals of section 101(b) of the 

CWA. 

Several questions were raised by 

commenters regarding whether the 2015 

Rule expanded CWA jurisdiction over 

intermittent and ephemeral streams, and 

whether the agencies accurately 

identified that potential expansion in 

the development of the 2015 Rule. 

Several commenters, for example, 

suggested that the amount of 

jurisdictional river and stream miles in 

the United States may increase from 

approximately 3.5 million miles to more 

than 8 million miles in response to the 

per se jurisdictional treatment of 

millions of miles of ephemeral and 

intermittent streams under the tributary 

definition.54 To frame their analysis, 

those commenters compared river and 

stream miles reported in recent CWA 

section 305(b) reports submitted by 

States to EPA, and transmitted by EPA 

to Congress, to the river and stream 

miles depicted in maps developed by 

the agencies and the USGS prior to the 

2015 Rule’s proposal. 

Section 305(b)(1)(A) of the CWA 

directs each state to ‘‘prepare and 

submit to the Administrator . . . 

biennially . . . a report which shall 

include . . . a description of the water 

quality of all navigable waters in such 

State during the preceding year. . . .’’ 

33 U.S.C. 1315(b)(1)(A). Section 

305(b)(2) additionally directs the 

Administrator to ‘‘transmit such State 

reports, together with an analysis 

thereof, to Congress . . . .’’ Id. at 

1315(b)(2). Over the years, those reports 

to Congress have identified between 3.5 

and 3.7 million river and stream miles 

nationwide (see Support Document). 

The agencies previously observed that 

this analysis may not be precise, 

because of concerns regarding the 

baseline for comparison and 

assumptions regarding which 

intermittent and ephemeral streams may 

be covered under the 2015 Rule.55

The agencies are not aware of any 

national, regional, or state-level map 

that identifies all ‘‘waters of the United 

States’’ and acknowledge that there are 

limitations associated with existing 

datasets. The agencies, however, 

developed a series of draft maps using 

the NHD identifying ‘‘rivers and streams 

and tributaries and other water bodies’’ 

in each State, which then-EPA 

Administrator Gina McCarthy 

mentioned at a March 27, 2014 hearing 

before the U.S. House of Representatives 

Appropriations Committee 

Subcommittee on Interior, Environment, 

and Related Agencies.56 The EPA 

provided a copy of those draft maps to 

Congress on July 28, 2014,57 and they 

remain available to the public on the 

U.S. House of Representatives 

Committee on Science, Space and 

Technology website.58 The draft maps 

identify a total of 8,086,742 river and 

stream miles across the 50 States (see 

Support Document). 

Given the significant differences 

between the CWA section 305(b) reports 

and the draft NHD maps submitted to 

Congress, and the possibility that each 

may represent potential estimates for 

the relative jurisdictional scope of the 

1986 regulations and practice compared 

to the 2015 Rule, several States have 

questioned whether the proposed 

definition of ‘‘tributary’’ for the 2015 

Rule would expand federal jurisdiction 

over State water resources. Eight State 

departments of environmental quality, 

for example, stated in joint comments 

that ‘‘comparing the ‘waters of the 

United States’ reported by States to 

recent USGS maps released by the EPA 

shows a 131% increase in federal 

waters.’’ 59 Comments filed by the State 


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Indiana Dept. of Environ. Mgmt., Kansas Dept. of 

Health and Environ., Louisiana Dept. of Environ. 

Quality, Mississippi Dept. of Environ. Quality, 

Oklahoma Dept. of Environ. Quality, and Wyoming 

Dept. of Environ. Quality (Nov. 14, 2014) (Docket 

ID: EPA–HQ–OW–2011–0880–15096), available at 

https://www.regulations.gov/document?D=EPA-HQOW-2011-0880-15096. 

60See comments submitted by the State of Kansas 

at Appendix A (Oct. 23, 2014) (Docket ID: EPA– 

HQ–OW–2011–0880–16636), available at https://

www.regulations.gov/document?D=EPA-HQ-OW2011-0880-16636. 

61 Id. (emphasis in original). 

62See ‘‘Clean Water Drives Economic Growth’’ by 

Gina McCarthy (Sept. 29, 2014), available at http:// 

www.huffingtonpost.com/gina-mccarthy/cleanwater-act_b_5900734.html. 

63See supra note 60. 

64See, e.g., U.S. EPA and U.S. Army Corps of 

Engineers. Clean Water Rule Response to 

Comments—Topic 11: Cost/Benefits (Volume 2) at 

223, available at https://www.epa.gov/sites/ 

production/files/2015-06/documents/cwr_response_

to_comments_11_econ_vol2.pdf. 

65See, e.g., id. at 10–13, 17. 66See also U.S. EPA and Department of the Army. 

Technical Support Document for the Clean Water 

Rule: Definition of Waters of the United States at 

28 (May 27, 2015), available at https://

www.epa.gov/sites/production/files/2015-05/ 

documents/technical_support_document_for_the_

clean_water_rule_1.pdf. 67See Rapanos Guidance at 7 (‘‘ ‘[R]elatively 

permanent’ waters do not include ephemeral 

tributaries which flow only in response to 

precipitation and intermittent streams which do not 

typically flow year-round or have continuous flow 

at least seasonally. However, CWA jurisdiction over 

these waters will be evaluated under the significant 

nexus standard.’’). 

of Kansas on the proposed rule raised 

similar concerns and focused on the 

inclusion of ephemeral streams in the 

proposed definition of tributary: ‘‘In 

Kansas we have identified 

approximately 31,000 miles of perennial 

and intermittent waters that have been 

treated as WOTUS for several 

decades. . . . As per the preamble to 

the Rule and EPA/ACOE statements, the 

additional 133,000 miles [of ephemeral 

streams] would result in a 460% 

increase in the number of Kansas waters 

presumed to be jurisdictional under the 

Rule.’’ 60 Kansas added that the State 

does ‘‘not believe ephemeral waters 

have always been considered de facto 

tributaries for CWA jurisdictional 

purposes.’’ 61 Referencing a statement 

made by then-EPA Administrator 

McCarthy in which she stated, 

‘‘[u]nfortunately, 60 percent of our 

nation’s streams and millions of acres of 

wetlands currently lack clear protection 

from pollution under the Clean Water 

Act,’’ 62 Kansas noted that ‘‘if those 60 

percent that ‘lack clear protection’ are 

brought under the umbrella of the CWA, 

[there will be] a significantly larger 

expansion than estimated in the 

economic analysis for the Rule.’’ 63

The agencies in 2015 suggested that a 

feature that flows very infrequently 

would not form the physical indicators 

required to meet the 2015 Rule’s 

definitions of ‘‘ordinary high water 

mark’’ and ‘‘tributary.’’ 64 In response to 

comments questioning the agencies’ 

characterization of the change in scope 

of jurisdiction under the 2015 Rule, the 

agencies stated that the 2015 Rule was 

narrower in scope than the existing 

regulations and historical practice, and 

reiterated that an increase of 

approximately 3 percent represented the 

agencies’ estimate of the increased 

positive jurisdictional determinations 

compared to recent practice.65 In the 

administrative record for the 2015 Rule 

and in a brief filed with the Sixth 

Circuit (based on that record), the 

agencies asserted that the definition of 

‘‘waters of the United States’’ 

historically has included ephemeral 

streams and that some federal court 

decisions after SWANCC upheld 

assertions of CWA jurisdiction over 

surface waters that have a hydrologic 

connection to and that form part of the 

tributary system of a traditional 

navigable water, including intermittent 

or ephemeral streams. 80 FR 37079; 

Brief for Respondents at 11, 62–64, In re 

EPA, No. 15–3571 (6th Cir. Jan. 13, 

2017).66 The agencies are requesting 

comment on whether these responses to 

these issues are adequate. While some 

ephemeral streams may have been 

jurisdictional after a case-specific 

analysis pursuant to the Rapanos 

Guidance,67 and while challenges to 

some of those determinations have been 

rejected by courts, the agencies are 

requesting public comment on whether 

these prior conclusions and assertions 

were correct. 

Given the concerns expressed by three 

federal courts regarding the potential 

scope of the 2015 Rule and comments 

raised during the 2015 rulemaking and 

submitted in response to the July 27, 

2017 NPRM, the agencies are reevaluating the 2015 Rule and the 

potential change in jurisdiction. While 

the agencies are not aware of any data 

that estimates with any reasonable 

certainty or predictability the exact 

baseline miles and area of waters 

covered by the 1986 regulations and 

preexisting agency practice or data that 

accurately forecasts of the additional 

waters subject to jurisdiction under the 

2015 Rule, the agencies are examining 

whether the data and estimates used to 

support the 2015 Rule’s conclusions 

that the rule would be narrower than 

preexisting regulations may not have 

supported those conclusions, and 

instead the 2015 Rule may have had 

more than a marginal impact on CWA 

jurisdictional determinations and may 

impact well-defined and longstanding 

relationships between the federal and 

State governments in implementing 

CWA programs. The agencies seek 

comment on this and other data that 

may be relevant to a proposed finding, 

and whether such a change in finding 

would, either independently or in 

conjunction with other factors, support 

the agencies’ proposal to repeal the 2015 

Rule. 

4. Potential Impact on Federal-State 

Balance 

When promulgating the 2015 Rule, 

the agencies concluded and 

prominently stated that ‘‘State, tribal, 

and local governments have welldefined and longstanding relationships 

with the Federal government in 

implementing CWA programs and these 

relationships are not altered by the final 

rule,’’ 80 FR 37054. Indeed, it was ‘‘the 

policy of the Congress to recognize, 

preserve, and protect the primary 

responsibilities and rights of States to 

prevent, reduce, and eliminate 

pollution, to plan the development and 

use (including restoration, preservation, 

and enhancement) of land and water 

resources, and to consult with the 

Administrator in the exercise of his 

authority under this Act.’’ 33 U.S.C. 

1251(b). 

In response to the agencies’ July 27, 

2017 NPRM, some commenters have 

suggested that the 2015 Rule— 

including, inter alia, elements of the 

final rule that commenters were not able 

to address during the comment period— 

may not effectively reflect the specific 

policy that Congress articulated in CWA 

section 101(b). The agencies are 

considering whether and are proposing 

to conclude that the 2015 Rule did not 

draw the appropriate line, for purposes 

of CWA jurisdiction, between waters 

subject to federal and State regulation, 

on the one hand, and waters subject to 

state regulation only, on the other. In 

comments submitted to the agencies in 

response to the July 27, 2017 NPRM, 

many States, representatives of entities 

within many sectors of the regulated 

community, and numerous other 

commenters expressed concerns that the 

2015 Rule permits federal encroachment 

upon the States’ traditional and primary 

authority over land and water resources. 

Such commenters cite the Supreme 

Court’s recognition that ‘‘Congress chose 

to ‘recognize, preserve, and protect the 

primary responsibilities and rights of 

states . . . to plan the development and 

use’ ’’ of those resources in enacting the 

CWA rather than ‘‘readjust the federalstate balance,’’ SWANCC, 531 U.S. at 

174 (quoting CWA section 101(b), 33 

U.S.C. 1251(b)). 


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68See, e.g., comments submitted by City of 

Chesapeake (Sept. 9, 2014) (Docket ID: EPA–HQ– 

OW–2011–0880–9615), available at https://

www.regulations.gov/document?D=EPA-HQ-OW2011-0880-9615. 

69See, e.g., comments submitted by National 

Association of Counties (Nov. 14, 2014) (Docket ID: 

EPA–HQ–OW–2011–0880–15081), available at 

https://www.regulations.gov/document?D=EPA-HQOW-2011-0880-15081. 

70See, e.g., comments submitted by Georgia 

Municipal Association (Nov. 13, 2014) (Docket ID: 

EPA–HQ–OW–2011–0880–14527), available at 

https://www.regulations.gov/document?D=EPA-HQOW-2011-0880-14527; comments submitted by City 

of St. Petersburg (Nov. 13, 2014) (Docket ID: EPA– 

HQ–OW–2011–0880–18897), available at https://

www.regulations.gov/document?D=EPA-HQ-OW2011-0880-18897. 

71 2015 Rule Economic Analysis at 11. 72See comments submitted by the Missouri 

Department of Natural Resources and Department of 

Agriculture (Sept. 26, 2017) (Docket ID: EPA–HQ– 

OW–2017–0203–13869), available at https://

www.regulations.gov/document?D=EPA-HQ-OW2017-0203-13869 (‘‘The broad definition of tributary 

and the inclusion of a three-quarter mile buffer 

around every tributary and impoundment, would 

have cast a very broad jurisdictional umbrella over 

the state; requiring significant nexus determinations 

on all but a very few number of waters.’’). 

73This includes whether the 2015 Rule is 

supported by a ‘‘clear and manifest’’ statement 

under the CWA to change the scope of traditional 

state regulatory authority. See BFP v. Resolution 

Trust Corp., 511 U.S. 531, 544 (1994); see also Bond 

v. United States, 134 S. Ct. 2077, 2089–90 (2014); 

SWANCC, 531 U.S. at 172–74. 

Under the 2015 Rule, commenters 

have observed that the agencies asserted 

categorical jurisdiction over water 

features that may be wholly intrastate 

and physically remote from navigablein-fact waters. Such waters ‘‘adjacent’’ 

to jurisdictional waters are deemed to 

meet the definition of ‘‘waters of the 

United States’’ under the 2015 Rule, so 

long as any portion of the water is 

located within 100 feet of the ordinary 

high water mark of a category (1) 

through (5) ‘‘jurisdictional by rule’’ 

water; within the 100-year floodplain of 

a category (1) through (5) ‘‘jurisdictional 

by rule’’ water but not more than 1,500 

feet from the ordinary high water mark 

of such water; or within 1,500 feet of the 

high tide line of a primary water or the 

ordinary high water mark of the Great 

Lakes. 80 FR 37085–86, 37105. The 

agencies also established case-specific 

jurisdiction over water features 

generally at a greater distance, including 

waters (including seasonal or ephemeral 

waters) located within 4,000 feet of the 

high tide line or ordinary high water 

mark of a category (1) through (5) water. 

See 80 FR 37105. For such waters, ‘‘the 

entire water is a water of the United 

States if a portion is located within the 

100-year floodplain of a water identified 

in paragraphs (a)(1) through (3) . . . or 

within 4,000 feet of the high tide line or 

ordinary high water mark’’ of a category 

(1) through (5) water.’’ Id. 

The agencies are considering whether 

the 2015 Rule’s coverage of waters 

based, in part, on their location within 

the 100-year floodplain of a 

jurisdictional water is consistent with 

the policy articulated in CWA section 

101(b) that States should maintain 

primary responsibility over land and 

water resources. The agencies received 

many comments on the proposal to the 

2015 Rule indicating that the potential 

breadth of this standard could conflict 

with other federal, State or local laws 

that regulate development within 

floodplains.68 In particular, certain local 

governments expressed concern that the 

floodplain element of the rule could 

conflict with local floodplain 

ordinances or otherwise complicate 

local land use planning and 

development.69 Though the agencies 

added a distance-based threshold to 

limit the use of the 100-year floodplain 

as a basis for categorical CWA 

jurisdiction with respect to adjacent 

waters, the agencies are concerned that 

the Rule’s use of this standard, 

including its use as a basis for requiring 

a case-specific significant nexus 

determination, could nonetheless 

interfere with traditional state and local 

police power, as suggested by some of 

the comments received in 2014.70

Comments received in response to the 

July 27, 2017 NPRM also raise concerns 

about the use of the 100-year floodplain. 

Specifically, commenters expressed 

concern about the absence of suitable 

maps and about the accuracy of existing 

maps. Given these concerns, the 

agencies request comment on whether 

the 2015 Rule’s use of the 100-year 

floodplain as a factor to establish 

jurisdiction over adjacent waters and 

case-specific waters interferes with 

States’ primary responsibilities over the 

planning and development of land and 

water resources in conflict with CWA 

section 101(b). The agencies also seek 

comment on to what extent the 100-year 

floodplain component of the 2015 Rule 

conflicts with other federal regulatory 

programs, and whether such a conflict 

impacts State and local governments. 

The agencies noted in 2015 ‘‘that the 

vast majority of the nation’s water 

features are located within 4,000 feet of 

a covered tributary, traditional 

navigable water, interstate water, or 

territorial sea.’’ 71 The agencies’ 

broadening of certain key concepts and 

terms relative to the prior regulatory 

regime means that the agencies can 

potentially review the ‘‘vast majority’’ of 

water features in the country under the 

2015 Rule, unless those features have 

been excluded from the definition. 

Similar concern was raised in response 

to the July 27, 2017 NPRM, for example, 

by the Missouri Department of Natural 

Resources and Department of 

Agriculture.72 The agencies seek 

comment on that analysis and whether 

the 2015 Rule readjusts the federal-state 

balance in a manner contrary to the 

congressionally determined policy in 

CWA section 101(b). Indeed, when 

issuing a preliminary injunction of the 

2015 Rule, the Southern District of 

Georgia held that ‘‘The [2015] WOTUS 

Rule asserts jurisdiction over remote 

and intermittent waters without 

evidence that they have a nexus with 

any navigable-in-fact waters.’’ Georgia, 

2018 U.S. Dist. LEXIS 97223, at *19. 

The agencies thus solicit comment on 

whether the definitions in the 2015 Rule 

would subject wholly intrastate or 

physically remote waters or wetlands to 

CWA jurisdiction, either categorically or 

on a case-by-case basis, and request 

information about the number and 

scope of such waters of which 

commenters may be aware.73

Further, the agencies solicit comment 

about whether these, or any other, 

aspects of the 2015 Rule as finalized 

would, as either a de facto or de jure 

matter, alter federal-state relationships 

in the implementation of CWA 

programs and State regulation of State 

waters, and whether the 2015 Rule 

appropriately implements the 

Congressional policy of recognizing, 

preserving, and protecting the primary 

rights of states to plan the development 

and use of land and water resources. 

Because such findings would, if adopted 

by the agencies, negate a key finding 

underpinning the 2015 Rule, the 

agencies request comment on whether 

to repeal the 2015 Rule on this basis. 

5. Additional Bases for Repealing the 

2015 Rule That the Agencies Are 

Considering 

In addition to our proposed 

conclusions that the 2015 Rule failed to 

provide regulatory certainty and that it 

exceeded the agencies’ authority under 

the CWA, the agencies are also 

considering several other supplemental 

bases for repealing the 2015 Rule. These 

are discussed below along with requests 

for public comment. 

Some commenters have suggested that 

the 2015 Rule may exceed Congress’ 

power under the Commerce Clause. The 

Supreme Court in SWANCC found that, 

in enacting the CWA, Congress had in 

mind as its authority ‘‘its traditional 

jurisdiction over waters that were or had 

been navigable in fact or which could 

reasonably be so made.’’ 531 U.S. at 172. 

The Court went on to construe the CWA 

to avoid the significant constitutional 


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74Though the agencies have previously said that 

the 2015 Rule is consistent with the Commerce 

Clause and the CWA, the agencies are in the process 

of considering whether it is more appropriate to 

draw a jurisdictional line that ensures that the 

agencies regulate well within our constitutional and 

statutory bounds. 

75See, e.g., Small Refiner Lead Phase-Down Task 

Force v. EPA, 705 F.2d 506, 549 (DC Cir. 1983). 

questions raised by the agencies’ 

assertion that the ‘‘ ‘Migratory Bird Rule’ 

falls within Congress’ power to regulate 

intrastate activities that ‘substantially 

affect’ interstate commerce.’’ Id. at 173. 

The agencies are evaluating the 

concerns, reflected in certain comments 

received by the agencies, that many 

features that are categorically 

jurisdictional under the 2015 Rule, such 

as wetlands that fall within the distance 

thresholds of the definition of 

‘‘neighboring,’’ test the limits of the 

scope of the Commerce Clause because 

they may not have the requisite effect on 

the channels of interstate commerce.74

For example, according to certain 

litigants challenging the 2015 Rule, the 

‘‘seasonally ponded, abandoned gravel 

mining depressions’’ specifically at 

issue in SWANCC, 531 U.S. at 164, 

which the Supreme Court determined 

were ‘‘nonnavigable, isolated, intrastate 

waters,’’ id. at 166–72, might be subject 

to case-specific jurisdiction under the 

2015 Rule. The depressions appear to be 

located within 4,000 feet of Poplar 

Creek, a tributary to the Fox River, and 

may have the ability to store runoff or 

contribute other ecological functions in 

the watershed. 

The agencies request comment, 

including additional information, on 

whether the water features at issue in 

SWANCC or other similar water features 

could be deemed jurisdictional under 

the 2015 Rule, and whether such a 

determination is consistent with or 

otherwise well-within the agencies’ 

statutory authority, would be 

unreasonable or go beyond the scope of 

the CWA, and is consistent with Justice 

Kennedy’s significant nexus test 

expounded in Rapanos wherein he 

stated, ‘‘[b]ecause such a [significant] 

nexus was lacking with respect to 

isolated ponds, the [SWANCC] Court 

held that the plain text of the statute did 

not permit’’ the Corps to assert 

jurisdiction over them. See 547 U.S. at 

767. 

The examples identified in Section 

II.C.3 above raise similar issues. The 

abandoned borrow pit, for example, 

discussed in Case Study C—AJD 

Number MVM–2014–460, was 

determined by the Corps in December 

2014 to be an isolated water located 

2,184 feet from a relatively permanent 

body of water ‘‘with no substantial 

nexus to interstate (or foreign) 

commerce’’ (see Support Document), yet 

the agencies later stated the feature 

would be jurisdictional under the 2015 

Rule. In addition, the wetlands at issue 

in Case Study B—AJD Number 2004– 

001914 (see Support Document) 

described above in Section II.C.3 were 

located 583 feet from the Johlin Ditch 

outside Toledo, Ohio, situated east of an 

existing medical building and west of an 

agricultural area. The wetlands were 

determined by the Corps to be isolated, 

lacking a surface connection to a water 

of the United States and a substantial 

nexus to interstate commerce. Those 

wetlands, however, were later stated by 

the agencies to be subject to CWA 

jurisdiction under the 2015 Rule. The 

agencies therefore solicit comment on 

whether the 2015 Rule would cover 

such wetlands and, if so, whether that 

would exceed the CWA’s statutory 

limits. See, e.g., SWANCC, 531 U.S. at 

171–72, 174 (‘‘[W]e find nothing 

approaching a clear statement from 

Congress that it intended § 404(a) to 

reach an abandoned sand and gravel 

pit’’ that is ‘‘isolated.’’). 

Interested parties are encouraged to 

provide comment on whether the 2015 

Rule is consistent with the statutory text 

of the CWA and relevant Supreme Court 

precedent, the limits of federal power 

under the Commerce Clause as 

specifically exercised by Congress in 

enacting the CWA, and any applicable 

legal requirements that pertain to the 

scope of the agencies’ authority to 

define the term ‘‘waters of the United 

States.’’ The agencies also solicit 

comment on any other issues that may 

be relevant to the agencies’ 

consideration of whether to repeal the 

2015 Rule, such as whether any 

potential procedural deficiencies 

limited effective public participation in 

the development of the 2015 Rule.75

D. The Agencies’ Next Steps 

In defining the term ‘‘waters of the 

United States’’ under the CWA, 

Congress gave the agencies broad 

discretion to articulate reasonable limits 

on the meaning of that term, consistent 

with the Act’s text and its policies as set 

forth in CWA section 101. In light of the 

substantial litigation risk regarding 

waters covered under the 2015 Rule, 

and based on the agencies’ experience 

and expertise in applying the CWA, the 

agencies propose to repeal the 2015 

Rule and put in place the prior 

regulation. This is based on the 

concerns articulated above and the 

agencies’ concern that there may be 

significant disruption to the 

implementation of the Act and to the 

public, including regulated entities, if 

the 2015 Rule were vacated in part. The 

agencies therefore propose to exercise 

their discretion and policy judgment by 

repealing the 2015 Rule permanently 

and in its entirety because the agencies 

believe that this approach is the most 

appropriate means to remedy the 

deficiencies of the 2015 Rule identified 

above, address the litigation risk 

surrounding the 2015 Rule, and restore 

a regulatory process that has been in 

place for years. 

The agencies have considered other 

alternatives that could have the effect of 

addressing some of the potential 

deficiencies identified, including 

proposing revisions to specific elements 

of the 2015 Rule, issuing revised 

implementation guidance and 

implementation manuals, and proposing 

a further change to the February 6, 2020 

applicability date of the 2015 Rule. The 

agencies are soliciting comments on 

whether any of these alternative 

approaches would fully address and 

ameliorate potential deficiencies in and 

litigation risk associated with the 2015 

Rule. Consistent with the President’s 

Executive Order, the agencies are also 

evaluating options for revising the 

definition of ‘‘waters of the United 

States.’’ 

The agencies are proposing to 

permanently repeal the 2015 Rule at this 

time, and are taking comment on 

whether this proposal is the best and 

most efficient approach to address the 

potential deficiencies identified in this 

notice and to provide the predictability 

and regulatory certainty that alternative 

approaches may not provide. 

E. Effect of Repeal 

The 2015 Rule amended longstanding 

regulations contained in portions of 33 

CFR part 328 and 40 CFR parts 110, 112, 

116, 117, 122, 230, 232, 300, 302, and 

401 by revising, removing, and redesignating certain paragraphs and 

definitions in those regulations. In this 

action, the agencies would repeal the 

2015 Rule and restore the regulations in 

existence immediately prior to the 2015 

Rule. As such, if the agencies finalize 

this proposal and repeal the 2015 Rule 

and thus repeal those amendments, the 

regulatory definitions of ‘‘waters of the 

United States’’ in effect would be those 

portions of 33 CFR part 328 and 40 CFR 

parts 110, 112, 116, 117, 122, 230, 232, 

300, 302, and 401 as they existed 

immediately prior to the 2015 Rule’s 

amendments. See, e.g., API v. EPA, 883 

F.3d 918, 923 (DC Cir. 2018) (regulatory 

criterion in effect immediately before 

enactment of criterion that was vacated 

by the court ‘‘replaces the now-vacated’’ 

criterion). Thus, if the agencies 


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76See Clean Water Act Approved Jurisdictional 

Determinations, available at https://

watersgeo.epa.gov/cwa/CWA-JDs, as of May 9, 2018. 

The 2015 Rule was enjoined in 13 States by the U.S. 

District Court for the District of North Dakota and 

has never gone into effect in those States. 

determine that repeal of the 2015 Rule 

is appropriate, the agencies 

concurrently would recodify the prior 

regulation in the CFR, which would not 

have the effect of creating a regulatory 

vacuum, and the agencies need not 

consider the potential consequences of 

such a regulatory vacuum in light of 

this. If this proposed rule is finalized, 

the agencies propose to apply the prior 

definition until a new definition of 

CWA jurisdiction is finalized. 

The current regulatory scheme for 

determining CWA jurisdiction is 

‘‘familiar, if imperfect,’’ In re EPA, 803 

F.3d at 808, and the agencies and 

regulated public have significant 

experience operating under the 

longstanding regulations that were 

replaced by the 2015 Rule. The agencies 

would continue to implement those 

regulations, as they have for many years, 

consistent with Supreme Court 

decisions and practice, other case law 

interpreting the rule, and informed by 

agency guidance documents. Apart from 

a roughly six-week period when the 

2015 Rule was in effect in 37 States, the 

agencies have continued to implement 

the preexisting regulatory definitions as 

a result of the court orders discussed in 

Section I.B. above, as well as the final 

rule adding an applicability date to the 

2015 Rule (83 FR 5200, Feb. 6, 2018). 

While the agencies acknowledge that 

the 1986 and 1988 regulations have 

been criticized and their application has 

been narrowed by various legal 

decisions, including SWANCC and 

Rapanos, the longstanding nature of the 

regulatory framework and its track 

record of implementation makes it 

preferable until the agencies propose 

and finalize a replacement definition. 

The agencies believe that, until a new 

definition is completed, it is important 

to retain the status quo that has been 

implemented for many years rather than 

the 2015 Rule, which has been and 

continues to be mired in litigation. 

In other words, restoration of the prior 

regulatory text in the CFR, interpreted 

in a manner consistent with Supreme 

Court decisions, and informed by 

applicable agency guidance documents 

and longstanding practice, will ensure 

that the scope of CWA jurisdiction will 

be administered in the same manner as 

it is now; as it was during the Sixth 

Circuit’s lengthy, nationwide stay of the 

2015 Rule; and as it was for many years 

prior to the promulgation of the 2015 

Rule. To be clear, the agencies are not 

proposing a new definition of ‘‘waters of 

the United States’’ in this specific 

rulemaking separate from the definition 

that existed immediately prior to the 

2015 Rule. The agencies also are not 

proposing to take this action in order to 

fill a regulatory gap because no such gap 

exists today. See 83 FR 5200, 5204. 

Rather, the agencies are solely 

proposing to repeal the 2015 

amendments to the above-referenced 

portions of the CFR and recodify the 

prior regulatory text as it existed 

immediately prior to the 2015 Rule’s 

amendments. 

III. Minimal Reliance Interests 

Implicated by a Repeal of the 2015 Rule 

More than 30,000 AJDs of individual 

aquatic resources and other features 

have been issued since August 28, 2015, 

the effective date of the 2015 Rule. 

However, less than two percent of the 

AJDs of individual aquatic resources 

were issued under the 2015 Rule 

provisions in the six weeks the rule was 

in effect in a portion of the country.76

The 2015 Rule was in effect in only 37 

States for about six weeks between the 

2015 Rule’s effective date and the Sixth 

Circuit’s October 9, 2015 nationwide 

stay order, see In re EPA, 803 F.3d 804 

(6th Cir. 2015), and only 540 AJDs for 

aquatic resources and other features 

were issued during that short window of 

time. The remainder of the AJDs issued 

since August 28, 2015, were issued 

under the regulations defining the term 

‘‘waters of the United States’’ that were 

in effect immediately before the 

effective date of the 2015 Rule. 

‘‘Sudden and unexplained change, 

. . . or change that does not take 

account of legitimate reliance on prior 

[agency] interpretation, . . . may be 

arbitrary, capricious [or] an abuse of 

discretion[,] [b]ut if these pitfalls are 

avoided, change is not invalidating[.]’’ 

Smiley v. Citibank (South Dakota), N.A., 

517 U.S. 735, 742 (1996) (internal 

quotation marks and citations omitted). 

Therefore, in proposing to repeal the 

2015 Rule, the agencies are considering 

any interests that may have developed 

in reliance on the 2015 Rule, as well as 

the potential harm to such reliance 

interests from repealing the Rule against 

the benefits. The agencies solicit 

comment on whether the AJDs that were 

issued under the 2015 Rule’s brief 

tenure (and any ensuing reliance 

interests that were developed) would be 

adversely affected by the Rule’s repeal. 

If the potential for such harm exists, the 

agencies also solicit comment on 

whether those harms outweigh the 

potential benefits of repealing the 2015 

Rule. 

In staying the 2015 Rule nationwide, 

the Sixth Circuit found no indication 

‘‘that the integrity of the nation’s waters 

will suffer imminent injury if the [2015 

Rule] is not immediately implemented 

and enforced.’’ In re EPA, 803 F.3d at 

808. The Sixth Circuit wrote that the 

‘‘burden—potentially visited 

nationwide on governmental bodies, 

state and federal, as well as private 

parties—and the impact on the public in 

general, implicated by the Rule’s 

effective redrawing of jurisdictional 

lines over certain of the nation’s waters’’ 

was of ‘‘greater concern.’’ Id. As a result, 

the Sixth Circuit held that ‘‘the sheer 

breadth of the ripple effects caused by 

the Rule’s definitional changes counsels 

strongly in favor of maintaining the 

status quo for the time being.’’ Id. For 

the reasons expounded in this notice 

and the NPRM, the agencies believe that 

any potential adverse reliance interests 

are outweighed by the benefits of the 

agencies’ proposed action. The agencies 

therefore propose to repeal the 2015 

Rule and request comment on that 

proposal. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

13563: Improving Regulation and 

Regulatory Review 

This action is a significant regulatory 

action that was submitted to the Office 

of Management and Budget (OMB) for 

review prior to the NPRM and again 

prior to issuance of the SNPRM. Any 

changes made in response to OMB 

recommendations have been 

documented in the docket. 

While economic analyses are 

informative in the rulemaking context, 

the agencies are not relying on the 

economic analysis performed pursuant 

to Executive Orders 12866 and 13563 

and related procedural requirements as 

a basis for this proposed action. See, 

e.g., NAHB, 682 F.3d at 1039–40 (noting 

that the quality of an agency’s economic 

analysis can be tested under the APA if 

the ‘‘agency decides to rely on a costbenefit analysis as part of its 

rulemaking’’). 

B. Executive Order 13771: Reducing 

Regulations and Controlling Regulatory 

Cost 

This rule is expected to be an 

Executive Order 13771 deregulatory 

action. Details on the estimated cost 

savings of this proposed rule can be 

found in the economic analysis that was 

published together with the NPRM. 


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C. Paperwork Reduction Act 

This proposed rule does not impose 

any new information collection burdens 

under the Paperwork Reduction Act. 

D. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

The proposed repeal of the 2015 Rule 

is a deregulatory action that would 

effectively maintain the status quo as 

the agencies are currently implementing 

it, and avoid the imposition of 

potentially significant adverse economic 

impacts on small entities in the future. 

Details on the estimated cost savings of 

this proposed rule can be found in the 

economic analysis that was published 

together with the NPRM. Accordingly, 

after considering the potential economic 

impacts of the proposed repeal action 

on small entities, we certify that this 

proposed action will not have a 

significant economic impact on a 

substantial number of small entities. 

E. Unfunded Mandates Reform Act 

Under section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 

signed into law on March 22, 1995, an 

agency must prepare a budgetary impact 

statement to accompany any proposed 

or final rule that includes a federal 

mandate that may result in estimated 

cost to state, local, or tribal governments 

in the aggregate, or to the private sector, 

of $100 million or more. Under section 

205 of the UMRA, the agency must 

select the most cost-effective and least 

burdensome alternative that achieves 

the objectives of the rule and is 

consistent with statutory requirements. 

Section 203 requires the agency to 

establish a plan for informing and 

advising any small governments that 

may be significantly or uniquely 

impacted by the rule. This proposed 

action does not contain any unfunded 

mandate as described in the UMRA, and 

does not significantly or uniquely affect 

small governments. The definition of 

‘‘waters of the United States’’ applies 

broadly to CWA programs. The 

proposed action imposes no enforceable 

duty on any state, local, or tribal 

governments, or the private sector, and 

does not contain regulatory 

requirements that significantly or 

uniquely affect small governments. 

F. Executive Order 13132: Federalism 

Executive Order 13132 requires the 

agencies to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by state and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implication’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ Under 

Executive Order 13132, the agencies 

may not issue a regulation that has 

federalism implications, that imposes 

substantial direct compliance costs, and 

that is not required by statute, unless 

the federal government provides the 

funds necessary to pay the direct 

compliance costs incurred by state and 

local government, or the agencies 

consult with state and local officials 

early in the process of developing the 

proposed regulation. The agencies also 

may not issue a regulation that has 

federalism implications and that 

preempts state law unless the agencies 

consult with state and local officials 

early in the process of developing the 

proposed regulation. 

This proposed rule will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely proposes to repeal a rule that 

was in effect in only a portion of the 

country for a short period of time, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CWA. 

The agencies are proposing to repeal the 

2015 Rule in part because the 2015 Rule 

may have impermissibly and materially 

affected the states and the distribution 

of power and responsibilities among the 

various levels of government and 

therefore likely should have been 

characterized as having federalism 

implications when promulgated in 

2015. Thus, the requirements of section 

6 of the Executive Order do not apply 

to this proposed rule because it returns 

the federal-state relationship to the 

status quo. 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, Nov. 9, 2000), requires the 

agencies to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by tribal officials in the 

development of regulatory policies that 

have tribal implications.’’ This proposed 

rule does not have tribal implications, 

as specified in Executive Order 13175. 

This proposed rule will not have 

substantial direct effects on tribal 

governments, on the relationship 

between the federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

federal government and Indian tribes, 

because it merely preserves the status 

quo currently in effect today and in 

effect immediately before promulgation 

of the 2015 Rule. Thus, Executive Order 

13175 does not apply to this proposed 

rule. Consistent with E.O. 13175, 

however, the agencies have and will 

continue to consult with tribal officials, 

as appropriate, as part of any future 

rulemaking to define ‘‘waters of the 

United States.’’ 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

Apr. 23, 1997), applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

an agency has reason to believe may 

have a disproportionate effect on 

children. If the regulatory action meets 

both criteria, the agency must evaluate 

the environmental health or safety 

effects of the planned rule on children, 

and explain why the planned regulation 

is preferable to other potentially 

effective and reasonably feasible 

alternatives considered by the agency. 

This proposed rule is not subject to 

Executive Order 13045 because it does 

not involve decisions intended to 

mitigate environmental health or safety 

risks. 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001), because it is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. 


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32252 Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules 

J. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act of 1995 

requires federal agencies to evaluate 

existing technical standards when 

developing a new regulation. The 

proposed rule does not involve 

technical standards. 

K. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

This proposed rule maintains the 

legal status quo. The agencies therefore 

believe that this action does not have 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income populations, 

and/or indigenous peoples, as specified 

in Executive Order 12898 (59 FR 7629, 

Feb. 16, 1994). 

List of Subjects 

33 CFR Part 328 

Environmental protection, 

Administrative practice and procedure, 

Navigation (water), Water pollution 

control, Waterways. 

40 CFR Part 110 

Environmental protection, Oil 

pollution, Reporting and recordkeeping 

requirements. 

40 CFR Part 112 

Environmental protection, Oil 

pollution, Penalties, Reporting and 

recordkeeping requirements. 

40 CFR Part 116 

Environmental protection, Hazardous 

substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 117 

Environmental protection, Hazardous 

substances, Penalties, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 122 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 230 

Environmental protection, Water 

pollution control. 

40 CFR Part 232 

Environmental protection, 

Intergovernmental relations, Water 

pollution control. 

40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, 

Intergovernmental relations, Natural 

resources, Occupational safety and 

health, Oil pollution, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

40 CFR Part 302 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, 

Intergovernmental relations, Natural 

resources, Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

40 CFR Part 401 

Environmental protection, Waste 

treatment and disposal, Water pollution 

control. 

■ For the reasons stated herein, the 

agencies propose to amend 33 CFR part 

328 and 40 CFR parts 110, 112, 116, 

117, 122, 230, 232, 300, 302, and 401 of 

the Code of Federal Regulations to 

repeal the amendments that were 

promulgated in the 2015 Rule and 

reestablish the regulatory text that was 

in place immediately prior to 

promulgation of the 2015 Rule. 

Dated: June 29, 2018. 

E. Scott Pruitt, 

Administrator, Environmental Protection 

Agency. 

Dated: June 29, 2018. 

R.D. James, 

Assistant Secretary of the Army (Civil Works). 

[FR Doc. 2018–14679 Filed 7–11–18; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 447 

[CMS–2413–P] 

RIN 0938–AT61 

Medicaid Program; Reassignment of 

Medicaid Provider Claims 

AGENCIES: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

remove the regulatory text that allows a 

state to make payments to third parties 

on behalf of an individual provider for 

benefits such as health insurance, skills 

training, and other benefits customary 

for employees. We are concerned that 

these provisions are overbroad, and 

insufficiently linked to the exceptions 

expressly permitted by the statute. As 

we noted in our prior rulemaking, 

section 1902(a)(32) of the Act provides 

for a number of exceptions to the direct 

payment requirement, but it does not 

authorize the agency to create new 

exceptions. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, no later 

than 5 p.m. on August 13, 2018. 

ADDRESSES: In commenting, please refer 

to file code CMS–2413–P. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

Comments, including mass comment 

submissions, must be submitted in one 

of the following three ways (please 

choose only one of the ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–2413–P, P.O. Box 8016, Baltimore, 

MD 21244–8016. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–2413–P, Mail 

Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Thompson, (410) 786–4044. 

SUPPLEMENTARY INFORMATION: Inspection 

of Public Comments: All comments 

received before the close of the 

comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following 

website as soon as possible after they 

have been received: http://

www.regulations.gov. Follow the search 

instructions on that website to view 

public comments. 

I. Background 

The Medicaid program was 

established by the Congress in 1965 to 


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