[Federal Register Volume 83, Number 134 (Thursday, July 12, 2018)]
[Proposed Rules]
[Pages 32227-32252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14679]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 328

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401

[EPA-HQ-OW-2017-0203; FRL-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.

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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: 
<a href="/cdn-cgi/l/email-protection#95d6c2d4e2fae1e0e6d5f0e5f4bbf2fae3"><span class="__cf_email__" data-cfemail="195a4e586e766d6c6a597c6978377e766f">[email protected]</span></a>; 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: 
<a href="/cdn-cgi/l/email-protection#ebbeb8aaa8aeb4a8bcaab4b99e878eab9e988a888ec58a998692c5868287"><span class="__cf_email__" data-cfemail="7f2a2c3e3c3a203c283e202d0a131a3f0a0c1e1c1a511e0d120651121613">[email protected]</span></a>.

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\
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    \1\ While EPA administers most provisions in the CWA, the 
Department of the Army, Corps of Engineers (Corps) administers the 
permitting program under section 404. During the 1980s, both 
agencies adopted substantially similar definitions of ``waters of 
the United States.'' See 51 FR 41206, Nov. 13, 1986, amending 33 CFR 
328.3; 53 FR 20764, June 6, 1988, amending 40 CFR 232.2.
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    The agencies are issuing this supplemental notice of proposed 
rulemaking (SNPRM) to clarify, supplement and give interested parties 
an opportunity to comment on certain important considerations and 
reasons for the agencies' proposal. The agencies clarify herein the 
scope of the solicitation of comment and the actions proposed. In 
response to the July 27, 2017 NPRM, (82 FR 34899), the agencies 
received numerous comments on the impacts of repealing the 2015 Rule in 
its entirety. Others commented in favor of retaining the 2015 Rule, 
either as written or with modifications. Some commenters interpreted 
the proposal as restricting their opportunity to provide such comments 
either supporting or opposing repeal of the 2015 Rule. In this SNPRM, 
the agencies reiterate that this regulatory action is intended to 
permanently repeal the 2015 Rule in its entirety, and we invite all 
interested persons to comment on whether the 2015 Rule should be 
repealed.

[[Page 32228]]

    The agencies are also issuing this SNPRM to clarify that the rule 
adding an applicability date to the 2015 Rule does not change the 
agencies' decision to proceed with this proposed repeal. For the 
reasons discussed in this notice, the agencies propose to conclude that 
regulatory certainty would be best served by repealing the 2015 Rule 
and recodifying the scope of CWA jurisdiction currently in effect. The 
agencies propose to conclude that rather than achieving its stated 
objectives of increasing predictability and consistency under the CWA, 
see 80 FR 37055, the 2015 Rule is creating significant confusion and 
uncertainty for agency staff, regulated entities, states, tribes, local 
governments, and the public, particularly in view of court decisions 
that have cast doubt on the legal viability of the rule. To provide for 
greater regulatory certainty, the agencies propose to repeal the 2015 
Rule and to recodify the pre-2015 regulations, thereby maintaining a 
longstanding regulatory framework that is more familiar to and better-
understood by the agencies, states, tribes, local governments, 
regulated entities, and the public.
    Further, court rulings against the 2015 Rule suggest that the 
interpretation of the ``significant nexus'' standard as applied in the 
2015 Rule may not comport with and accurately implement the legal 
limits on CWA jurisdiction intended by Congress and reflected in 
decisions of the Supreme Court. At a minimum, the agencies find that 
the interpretation of the statute adopted in the 2015 Rule is not 
compelled and raises significant legal questions. In light of the 
substantial uncertainty associated with the 2015 Rule, including by 
virtue of a potential stay, injunction, or vacatur of the 2015 Rule in 
various legal challenges, as well as the substantial experience the 
agencies already possess implementing the preexisting regulations that 
the agencies are implementing today, the agencies propose to conclude 
that administrative goals of regulatory certainty would be best served 
by repealing the 2015 Rule.
    The agencies also propose to conclude that the 2015 Rule exceeded 
the agencies' authority under the CWA by adopting such an 
interpretation of Justice Kennedy's ``significant nexus'' standard 
articulated in Rapanos v. United States and Carabell v. United States, 
547 U.S. 715 (2006) (``Rapanos'') as to be inconsistent with important 
aspects of that opinion and to cover waters outside the scope of the 
Act, even though that concurring opinion was identified as the basis 
for the significant nexus standard articulated in the 2015 Rule. The 
agencies also propose to conclude that, contrary to conclusions 
articulated in support of the rule, the 2015 Rule appears to have 
expanded the meaning of tributaries and adjacent wetlands to include 
waters well beyond those regulated by the agencies under the 
preexisting regulations, as applied by the agencies following decisions 
of the Supreme Court in Rapanos and Solid Waste Agency of Northern Cook 
County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) 
(``SWANCC''). The agencies believe that the 2015 Rule may have altered 
the balance of authorities between the federal and State governments, 
contrary to the agencies' statements in promulgating the 2015 Rule and 
in contravention of CWA section 101(b), 33 U.S.C. 1251(b).

I. Background

    The agencies refer the public to the Executive Summary for the 
NPRM, 82 FR 34899 (July 27, 2017), and incorporate it by reference 
herein.

A. The 2015 Rule

    On June 29, 2015, the agencies issued a final rule (80 FR 37054) 
amending various portions of the CFR that set forth definitions of 
``waters of the United States,'' a term contained in the CWA section 
502(7) definition of ``navigable waters,'' 33 U.S.C. 1362(7).
    A primary purpose of the 2015 Rule was to ``increase CWA program 
predictability and consistency by clarifying the scope of `waters of 
the United States' protected under the Act.'' 80 FR 37054. The 2015 
Rule attempted to clarify the geographic scope of the CWA by placing 
waters into three categories: (A) Waters that are categorically 
``jurisdictional by rule'' in all instances (i.e., without the need for 
any additional analysis); (B) waters that are subject to case-specific 
analysis to determine whether they are jurisdictional, and (C) waters 
that are categorically excluded from jurisdiction. Waters that are 
``jurisdictional by rule'' include (1) waters which are currently used, 
were used in the past, or may be susceptible to use in interstate or 
foreign commerce, including all waters which are subject to the ebb and 
flow of the tide; (2) interstate waters, including interstate wetlands; 
(3) the territorial seas; (4) impoundments of waters otherwise 
identified as jurisdictional; (5) tributaries of the first three 
categories of ``jurisdictional by rule'' waters; and (6) waters 
adjacent to a water identified in the first five categories of 
``jurisdictional by rule'' waters, including wetlands, ponds, lakes, 
oxbows, impoundments, and similar waters. See id. at 37104.
    The 2015 Rule added new definitions of key terms such as 
``tributaries'' and revised previous definitions of terms such as 
``adjacent'' (by adding a new definition of ``neighboring'' that is 
used in the definition of ``adjacent'') that would determine whether 
waters are ``jurisdictional by rule.'' See id. at 37105. Specifically, 
a tributary under the 2015 Rule is a water that contributes flow, 
either directly or through another water, to a water identified in the 
first three categories of ``jurisdictional by rule'' waters and that is 
characterized by the presence of the ``physical indicators'' of a bed 
and banks and an ordinary high water mark. ``These physical indicators 
demonstrate there is volume, frequency, and duration of flow sufficient 
to create a bed and banks and therefore an ordinary high water mark, 
and thus to qualify as a tributary.'' Id. The 2015 Rule does not 
delineate jurisdiction specifically based on categories with 
established scientific meanings such as ephemeral, intermittent, and 
perennial waters that are based on the source of the water and nature 
of the flow. See id. at 37076 (``Under the rule, flow in the tributary 
may be perennial, intermittent, or ephemeral.''). Under the 2015 Rule, 
tributaries need not be demonstrated to possess any specific volume, 
frequency, or duration of flow, or to contribute flow to a traditional 
navigable water in any given year or specific time period. Tributaries 
under the 2015 Rule can be natural, man-altered, or man-made, and they 
do not lose their status as a tributary if, for any length, there are 
one or more constructed breaks (such as bridges, culverts, pipes, or 
dams), or one or more natural breaks (such as wetlands along the run of 
a stream, debris piles, boulder fields, or a stream that flows 
underground) so long as a bed and banks and an ordinary high water mark 
can be identified upstream of the break. Id. at 37105-06.
    In the 2015 Rule, the agencies did not expressly amend the 
longstanding definition of ``adjacent'' (defined as ``bordering, 
contiguous, or neighboring''), but the agencies added a new definition 
of ``neighboring'' that impacted the interpretation of ``adjacent.'' 
The 2015 Rule defined ``neighboring'' to encompass all waters located 
within 100 feet of the ordinary high water mark of a category (1) 
through (5) ``jurisdictional by rule'' water; all waters located within 
the 100-year floodplain of a category (1) through (5) ``jurisdictional 
by rule'' water and not more than 1,500 feet from the ordinary high 
water mark of such water;

[[Page 32229]]

all waters located within 1,500 feet of the high tide line of a 
category (1) though (3) ``jurisdictional by rule'' water; and all 
waters within 1,500 feet of the ordinary high water mark of the Great 
Lakes. Id. at 37105. The entire water is considered neighboring if any 
portion of it lies within one of these zones. See id. This regulatory 
text did not appear in the proposed rule, and thus the agencies did not 
receive public comment on these numeric measures.
    In addition to the six categories of ``jurisdictional by rule'' 
waters, the 2015 Rule identifies certain waters that are subject to a 
case-specific analysis to determine if they have a ``significant 
nexus'' to a water that is jurisdictional. Id. at 37104-05. The first 
category consists of five specific types of waters in specific regions 
of the country: Prairie potholes, Carolina and Delmarva bays, pocosins, 
western vernal pools in California, and Texas coastal prairie wetlands. 
Id. at 37105. The second category consists of all waters located within 
the 100-year floodplain of any category (1) through (3) 
``jurisdictional by rule'' water and all waters located within 4,000 
feet of the high tide line or ordinary high water mark of any category 
(1) through (5) ``jurisdictional by rule'' water. Id. These 
quantitative measures did not appear in the proposed rule, and thus the 
agencies did not receive public comment on these specific measures.
    The 2015 Rule defines ``significant nexus'' to mean a water, 
including wetlands, that either alone or in combination with other 
similarly situated waters in the region, significantly affects the 
chemical, physical, or biological integrity of a category (1) through 
(3) ``jurisdictional by rule'' water. 80 FR 37106. ``For an effect to 
be significant, it must be more than speculative or insubstantial.'' 
Id. The term ``in the region'' means ``the watershed that drains to the 
nearest'' primary water.\2\ Id. This definition is different than the 
test articulated by the agencies in their 2008 Rapanos Guidance.\3\ 
That guidance interpreted ``similarly situated'' to include all 
wetlands (not waters) adjacent to the same tributary, a much less 
expansive treatment of similarly situated waters than in the 2015 Rule.
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    \2\ In this notice, a ``primary'' water is a category (1) 
through (3) ``jurisdictional by rule'' water.
    \3\ See U.S. EPA and U.S. Army Corps of Engineers. Clean Water 
Act Jurisdiction Following the U.S. Supreme Court's Decision in 
Rapanos v. United States & Carabell v. United States at 1 (Dec. 2, 
2008) (``Rapanos Guidance''), available at https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf. The agencies 
acknowledge that the Rapanos Guidance did not impose legally binding 
requirements, see id. at 4 n.17, but believe that this guidance is 
relevant to the discussion in this notice.
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    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.
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    \4\ ``[T]he vast majority of the nation's water features are 
located within 4,000 feet of a covered tributary, traditional 
navigable water, interstate water, or territorial sea.'' U.S. EPA 
and Department of the Army. Economic Analysis of the EPA-Army Clean 
Water Rule at 11 (May 20, 2015) (``2015 Rule Economic Analysis'') 
(Docket ID: EPAHQ-OW-2011-0880-20866), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20866.
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    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.
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    \5\ Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, 
Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, 
Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico 
(Environment Department and State Engineer), North Carolina 
(Department of Environment and Natural Resources), North Dakota, 
Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, 
Utah, West Virginia, Wisconsin, and Wyoming. Iowa joined the legal 
challenge later in the process, bringing the total to 32 States.
    \6\ U.S. District Courts for the Northern and Southern District 
of Georgia, District of Minnesota, District of North Dakota, 
Southern District of Ohio, Northern District of Oklahoma, Southern 
District of Texas, District of Arizona, Northern District of 
Florida, District of the District of Columbia, Western District of 
Washington, Northern District of California, and Northern District 
of West Virginia.
    \7\ U.S. Court of Appeals for the Second, Fifth, Sixth, Eighth, 
Ninth, Tenth, Eleventh, and District of Columbia Circuits.
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    The day before the 2015 Rule's August 28, 2015 effective date, the 
U.S. District Court for the District of North Dakota preliminarily 
enjoined the 2015 Rule in the 13 States that challenged the rule in 
that court.\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.
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    \8\ Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, 
Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, 
and Wyoming. Iowa's motion to intervene in the case was granted 
after issuance of the preliminary injunction.
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    The petitions for review filed in the courts of appeals were 
consolidated in the U.S. Court of Appeals for the Sixth Circuit. In 
that litigation, state and industry petitioners raised concerns about 
whether the 2015 Rule violates the Constitution and the CWA and whether 
its promulgation violated

[[Page 32230]]

procedural requirements under the APA and other statutes. Environmental 
petitioners also challenged the 2015 Rule, including exclusions 
therein. On October 9, 2015, approximately six weeks after the 2015 
Rule took effect in the 37 States that were not subject to the 
preliminary injunction issued by the District of North Dakota, the 
Sixth Circuit stayed the 2015 Rule nationwide after finding, among 
other things, that State petitioners had demonstrated ``a substantial 
possibility of success on the merits of their claims.'' In re EPA & 
Dep't of Def. Final Rule, 803 F.3d 804 (6th Cir. 2015) (``In re EPA'').
    On January 13, 2017, the U.S. Supreme Court granted certiorari on 
the question of whether the courts of appeals have original 
jurisdiction to review challenges to the 2015 Rule. See Nat'l Ass'n of 
Mfrs. v. Dep't of Defense, 137 S. Ct. 811 (2017). The Sixth Circuit 
granted petitioners' motion to hold in abeyance the briefing schedule 
in the litigation challenging the 2015 Rule pending a Supreme Court 
decision on the question of the court of appeals' jurisdiction. On 
January 22, 2018, the Supreme Court, in a unanimous opinion, held that 
the 2015 Rule is subject to direct review in the district courts. Nat'l 
Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 624 (2018). Throughout 
the pendency of the Supreme Court litigation (and for a short time 
thereafter), the Sixth Circuit's nationwide stay remained in effect. In 
response to the Supreme Court's decision, on February 28, 2018, the 
Sixth Circuit lifted the stay and dismissed the corresponding petitions 
for review. See In re Dep't of Def. & EPA Final Rule, 713 Fed. App'x 
489 (6th Cir. 2018).
    Since the Supreme Court's jurisdictional ruling, district court 
litigation regarding the 2015 Rule has resumed. At this time, the 2015 
Rule continues to be subject to a preliminary injunction issued by the 
District of North Dakota as to 13 States: Alaska, Arizona, Arkansas, 
Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, 
South Dakota, Wyoming, and New Mexico. The 2015 Rule also is subject to 
a preliminary injunction issued by the U.S. District Court for the 
Southern District of Georgia as to 11 more States: Georgia, Alabama, 
Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, 
Utah, West Virginia, and Wisconsin. See Georgia v. Pruitt, No. 15-cv-79 
(S.D. Ga.). In another action, the U.S. District Court for the Southern 
District of Texas is considering preliminary injunction motions filed 
by parties including the States of Texas, Louisiana, and Mississippi. 
See Texas v. EPA, No. 3:15-cv-162 (S.D. Tex.); Am. Farm Bureau Fed'n et 
al. v. EPA, No. 3:15-cv-165 (S.D. Tex.). At least three additional 
States are seeking a preliminary injunction in the U.S. District Court 
for the Southern District of Ohio as well. See, e.g., States' 
Supplemental Memorandum in Support of Preliminary Injunction, Ohio v. 
EPA, No. 2:15-cv-02467 (S.D. Ohio June 20, 2018) (brief filed by the 
States of Ohio, Michigan, and Tennessee in support of the States' 
motion for a preliminary injunction against the 2015 Rule).

C. Executive Order 13778, the Notice of Proposed Rulemaking, and the 
Applicability Date Rule

    The agencies are engaged in a two-step process intended to review 
and repeal or revise, as appropriate and consistent with law, the 
definition of ``waters of the United States'' as set forth in the 2015 
Rule. This process began in response to Executive Order 13778 issued on 
February 28, 2017, by the President entitled ``Restoring the Rule of 
Law, Federalism, and Economic Growth by Reviewing the `Waters of the 
United States' Rule.'' Section 1 of the Executive Order states, ``[i]t 
is in the national interest to ensure the Nation's navigable waters are 
kept free from pollution, while at the same time promoting economic 
growth, minimizing regulatory uncertainty, and showing due regard for 
the roles of the Congress and the States under the Constitution.'' The 
Order directed the EPA and the Army to review the 2015 Rule for 
consistency with the policy outlined in Section 1 of the Order and to 
issue a proposed rule rescinding or revising the 2015 Rule as 
appropriate and consistent with law (Section 2). The Executive Order 
also directed the agencies to ``consider interpreting the term 
`navigable waters' . . . in a manner consistent with'' Justice Scalia's 
plurality opinion in Rapanos (Section 3).
    On March 6, 2017, the agencies published a notice of intent to 
review the 2015 Rule and provide notice of a forthcoming proposed 
rulemaking consistent with the Executive Order. 82 FR 12532. Shortly 
thereafter, the agencies announced that they would implement the 
Executive Order in a two-step approach. On July 27, 2017, the agencies 
published a NPRM (82 FR 34899) that proposed to rescind the 2015 Rule 
and restore the regulatory text that governed prior to the promulgation 
of the 2015 Rule, which the agencies have been implementing since the 
judicial stay of the 2015 Rule consistent with Supreme Court decisions 
and informed by applicable guidance documents and longstanding agency 
practice. The agencies invited comment on the NPRM over a 62-day 
period.
    Shortly after the Supreme Court decided that the courts of appeals 
do not have original jurisdiction to review challenges to the 2015 Rule 
and directed the Sixth Circuit to dismiss the consolidated challenges 
to the 2015 Rule for lack of jurisdiction, the agencies issued a final 
rule (83 FR 5200, Feb. 6, 2018), after providing notice and an 
opportunity for public comment, that added an applicability date to the 
2015 Rule. The applicability date was established as February 6, 2020. 
When adding the applicability date to the 2015 Rule, the agencies 
clarified that they will continue to implement nationwide the previous 
regulatory definition of ``waters of the United States,'' consistent 
with the practice and procedures the agencies implemented before and 
immediately following the issuance of the 2015 Rule pursuant to the 
preliminary injunction issued by the District of North Dakota and the 
nationwide stay issued by the Sixth Circuit. The agencies further 
explained that the final applicability date rule would ensure 
regulatory certainty and consistent implementation of the CWA 
nationwide while the agencies reconsider the 2015 Rule and potentially 
pursue further rulemaking to develop a new definition of ``waters of 
the United States.'' The applicability date rule was challenged in a 
number of district courts. Generally, the challenges raise concerns 
that the agencies' action was arbitrary and capricious because the 
agencies did not address substantive comments regarding the 2015 Rule, 
as well as procedural concerns with respect to the length of the public 
comment period for the proposed applicability date rule. At this time, 
these challenges remain pending in the district courts where they were 
filed.

D. Comments on the Original Notice of Proposed Rulemaking

    The agencies accepted comments on the NPRM from July 27, 2017, 
through September 27, 2017. The agencies received more than 685,000 
comments on the NPRM from a broad spectrum of interested parties. The 
agencies are continuing to review those extensive comments. Some 
commenters expressed support for the agencies' proposal to repeal the 
2015 Rule, stating, among other things, that the 2015 Rule exceeds the 
agencies' statutory authority. Other commenters opposed the proposal, 
stating, among other things, that repealing the 2015 Rule will increase

[[Page 32231]]

regulatory uncertainty and adversely impact water quality.
    Based on the agencies' careful and ongoing review of the comments 
submitted in response to the NPRM, the agencies believe that it is in 
the public interest to provide further explanation and allow interested 
parties additional opportunity to comment on the proposed repeal of the 
2015 Rule. Because some commenters interpreted the NPRM as restricting 
their ability to comment on the legal and policy reasons for or against 
the repeal of the 2015 Rule while others submitted comments addressing 
these topics, the agencies wish to make clear that comments on that 
subject are solicited. Additionally, some commenters appeared to be 
confused by whether the agencies proposed a temporary or interim, as 
opposed to a permanent, repeal of the 2015 Rule. While the agencies did 
refer to the July 2017 proposal as an ``interim action'' (82 FR 34902), 
that was in the context of explaining that the proposal to repeal the 
2015 Rule is the first step of a two-step process, as described above, 
and that the agencies are planning to take the additional, second step 
of conducting a separate notice and comment rulemaking to propose a new 
definition of ``waters of the United States.'' In this notice, the 
agencies are clarifying that, regardless of the timing or ultimate 
outcome of that additional rulemaking, the agencies are proposing a 
permanent repeal of the 2015 Rule at this stage. This was also our 
intent in the NPRM. Finally, some commenters did not fully understand 
the precise action the NPRM proposed to take, e.g., repealing, staying, 
or taking some other action with respect to the 2015 Rule. The agencies 
are issuing this SNPRM and are inviting all interested persons to 
comment on whether the agencies should repeal the 2015 Rule and 
recodify the regulations currently being implemented by the agencies.

E. Comments on This Supplemental Notice of Proposed Rulemaking

    As discussed in the next sections, the agencies are proposing to 
permanently repeal the 2015 Rule. The agencies welcome comment on all 
issues that are relevant to the consideration of whether to repeal the 
2015 Rule. In response to the initial NPRM, many commenters have 
already provided comment on considerations and issues that weigh in 
favor of or against repeal, including many of the issues articulated 
below. The agencies will consider all of those previously submitted 
comments, in addition to any new comments submitted in response to this 
SNPRM, in taking a final action on this rulemaking. As such, commenters 
need not resubmit comments already provided in response to the 
agencies' July 27, 2017 NPRM (82 FR 34899).

II. Proposal To Repeal the 2015 Rule

A. Legal Authority To Repeal

    The agencies' ability to repeal an existing regulation through 
notice-and-comment rulemaking is well-grounded in the law. The APA 
defines rulemaking to mean ``agency process for formulating, amending, 
or repealing a rule.'' 5 U.S.C. 551(5). The CWA complements this 
authority by providing the Administrator with broad authority to 
``prescribe such regulations as are necessary to carry out the 
functions under this Act.'' 33 U.S.C. 1361(a). This broad authority 
includes regulations that repeal or revise CWA implementing regulations 
promulgated by a prior administration.
    The Supreme Court has made clear that ``[a]gencies are free to 
change their existing policies as long as they provide a reasoned 
explanation for the change,'' and ``[w]hen an agency changes its 
existing position, it `need not always provide a more detailed 
justification than what would suffice for a new policy created on a 
blank slate.' '' Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 
2125 (2016) (citations omitted). The NPRM discussed how the agencies 
may revise or repeal the regulatory definition of ``waters of the 
United States'' so long as the agencies' action is based on a reasoned 
explanation. See 82 FR 34901. The agencies can do so based on changes 
in circumstance, or changes in statutory interpretation or policy 
judgments. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 
502, 514-15 (2009); Ctr. for Sci. in Pub. Interest v. Dep't of 
Treasury, 797 F.2d 995, 998-99 & n.1 (D.C. Cir. 1986). The agencies' 
interpretation of the statutes they administer, such as the CWA, are 
not ``instantly carved in stone''; quite the contrary, the agencies 
``must consider varying interpretations and the wisdom of [their] 
policy on a continuing basis, . . . for example, in response to . . . a 
change in administrations.'' Nat'l Cable & Telecommc'ns Ass'n v. Brand 
X Internet Servs., 545 U.S. 967, 981-82 (2005) (``Brand X'') (internal 
quotation marks omitted) (quoting Chevron U.S.A., Inc. v. NRDC, 467 
U.S. 837, 863-64 (1984)) (citing Motor Vehicle Mfrs. Ass'n v. State 
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., 
concurring in part and dissenting in part)). The Supreme Court and 
lower courts have acknowledged an agency's ability to repeal 
regulations promulgated by a prior administration based on changes in 
agency policy where ``the agency adequately explains the reasons for a 
reversal of policy.'' See Brand X, 545 U.S. at 981. A revised 
rulemaking based ``on a reevaluation of which policy would be better in 
light of the facts'' is ``well within an agency's discretion,'' and 
``[a] change in administration brought about by the people casting 
their votes is a perfectly reasonable basis for an executive agency's 
reappraisal'' of its regulations and programs. Nat'l Ass'n of Home 
Builders v. EPA, 682 F.3d 1032, 1038 & 1043 (D.C. Cir. 2012) 
(``NAHB'').

B. Legal Background

1. The Clean Water Act
    Congress amended the Federal Water Pollution Control Act (FWPCA), 
or Clean Water Act (CWA) as it is commonly called,\9\ in 1972 to 
address longstanding concerns regarding the quality of the nation's 
waters and the federal government's ability to address those concerns 
under existing law. Prior to 1972, the ability to control and redress 
water pollution in the nation's waters largely fell to the Corps under 
the Rivers and Harbors Act of 1899. Congress had also enacted the Water 
Pollution Control Act of 1948, Public Law 80-845, 62 Stat. 1155 (June 
30, 1948), to address interstate water pollution, and subsequently 
amended that statute in 1956 (giving the statute is current formal 
name), 1961, and 1965. The early versions of the CWA promoted the 
development of pollution abatement programs, required states to develop 
water quality standards, and authorized the federal government to bring 
enforcement actions to abate water pollution.
---------------------------------------------------------------------------

    \9\ The FWPCA is commonly referred to as the CWA following the 
1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566 
(1977). For ease of reference, the agencies will generally refer to 
the FWPCA in this notice as the CWA or the Act.
---------------------------------------------------------------------------

    These early statutory efforts, however, proved inadequate to 
address the decline in the quality of the nation's waters, see City of 
Milwaukee v. Illinois, 451 U.S. 304, 310 (1981), so Congress performed 
a ``total restructuring'' and ``complete rewriting'' of the existing 
statutory framework in 1972, id. at 317 (quoting legislative history of 
1972 amendments). That restructuring resulted in the enactment of a 
comprehensive scheme designed to prevent, reduce, and eliminate 
pollution in the nation's waters generally, and to regulate the 
discharge of pollutants into navigable waters specifically. See, e.g.,

[[Page 32232]]

S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 385 (2006) 
(``[T]he Act does not stop at controlling the `addition of pollutants,' 
but deals with `pollution' generally[.]'').
    The objective of the new statutory scheme was ``to restore and 
maintain the chemical, physical, and biological integrity of the 
Nation's waters.'' 33 U.S.C. 1251(a). In order to meet that objective, 
Congress declared two national goals: (1) ``that the discharge of 
pollutants into the navigable waters be eliminated by 1985;'' and (2) 
``that wherever attainable, an interim goal of water quality which 
provides for the protection and propagation of fish, shellfish, and 
wildlife and provides for recreation in and on the water be achieved by 
July 1, 1983. . . .'' Id. at 1251(a)(1)-(2).
    Congress established several key policies that direct the work of 
the agencies to effectuate those goals. For example, Congress declared 
as a national policy ``that the discharge of toxic pollutants in toxic 
amounts be prohibited; . . . that Federal financial assistance be 
provided to construct publicly owned waste treatment works; . . . that 
areawide waste treatment management planning processes be developed and 
implemented to assure adequate control of sources of pollutants in each 
State; . . . [and] that programs for the control of nonpoint sources of 
pollution be developed and implemented in an expeditious manner so as 
to enable the goals of this Act to be met through the control of both 
point and nonpoint sources of pollution.'' Id. at 1251(a)(3)-(7).
    Congress envisioned a major role for the states in implementing the 
CWA, and the CWA also recognizes the importance of preserving the 
states' independent authority and responsibility in this area. The CWA 
balances the traditional power of states to regulate land and water 
resources within their borders with the need for a federal water 
quality regulation to protect the waters of the United States. For 
example, the statute reflects ``the policy of the Congress to 
recognize, preserve, and protect the primary responsibilities and 
rights of States to prevent, reduce, and eliminate pollution'' and ``to 
plan the development and use . . . of land and water resources. . . .'' 
Id. at 1251(b). Congress also declared as a national policy that states 
manage the major construction grant program and implement the core 
permitting programs authorized by the statute, among other 
responsibilities. Id. Congress added that ``nothing in this Act shall . 
. . be construed as impairing or in any manner affecting any right or 
jurisdiction of the States with respect to the waters (including 
boundary waters) of such States.'' Id. at 1370. Congress also pledged 
to provide technical support and financial aid to the states ``in 
connection with the prevention, reduction, and elimination of 
pollution.'' Id. at 1251(b).
    To carry out these policies, Congress broadly defined ``pollution'' 
to mean ``the man-made or man-induced alteration of the chemical, 
physical, biological, and radiological integrity of water,'' id. at 
1362(19), to parallel the broad objective of the Act ``to restore and 
maintain the chemical, physical, and biological integrity of the 
Nation's waters,'' id. at 1251(a). Congress then crafted a non-
regulatory statutory framework to provide technical and financial 
assistance to the states to prevent, reduce, and eliminate pollution in 
the broader set of the nation's waters. For example, section 105 of the 
Act, ``Grants for research and development,'' authorized EPA ``to make 
grants to any State or States or interstate agency to demonstrate, in 
river basins or portions thereof, advanced treatment and environmental 
enhancement techniques to control pollution from all sources, . . . 
including nonpoint sources, . . . [and] for research and demonstration 
projects for prevention of pollution of any waters by industry 
including, but not limited to, the prevention, reduction, and 
elimination of the discharge of pollutants.'' 33 U.S.C. 1255(b)-(c) 
(emphases added); see also id. at 1256(a) (authorizing EPA to issue 
``grants to States and to interstate agencies to assist them in 
administering programs for the prevention, reduction, and elimination 
of pollution''). Section 108, ``Pollution control in the Great Lakes,'' 
authorized EPA to enter into agreements with any state to develop plans 
for the ``elimination or control of pollution, within all or any part 
of the watersheds of the Great Lakes.'' Id. at 1258(a) (emphasis 
added); see also id. at 1268(a)(3)(C) (defining the ``Great Lakes 
System'' as ``all the streams, rivers, lakes, and other bodies of water 
within the drainage basin of the Great Lakes''). Similar broad 
pollution control programs were created for other major watersheds, 
including, for example, the Chesapeake Bay, see id. at 1267(a)(3), Long 
Island Sound, see id. at 1269(c)(2)(D), and Lake Champlain, see id. at 
1270(g)(2).
    For the narrower set of the nation's waters identified as 
``navigable waters'' or ``the waters of the United States,'' id. at 
1362(7), Congress created a federal regulatory permitting program 
designed to address the discharge of pollutants into those waters. 
Section 301 contains the key regulatory mechanism: ``Except as in 
compliance with this section and sections 302, 306, 307, 318, 402, and 
404 of this Act, the discharge of any pollutant by any person shall be 
unlawful.'' Id. at 1311(a). A ``discharge of a pollutant'' is defined 
to include ``any addition of any pollutant to navigable waters from any 
point source,'' such as a pipe, ditch or other ``discernible, confined 
and discrete conveyance.'' Id. at 1362(12), (14) (emphasis added). The 
term ``pollutant,'' as compared to the broader term ``pollution,'' id. 
at 1362(19), means ``dredged spoil, solid waste, incinerator residue, 
sewage, garbage, sewage sludge, munitions, chemical wastes, biological 
materials, radioactive materials, heat, wrecked or discarded equipment, 
rock, sand, cellar dirt and industrial, municipal, and agricultural 
waste discharged into water.'' Id. at 1362(6). Thus, it is unlawful to 
discharge pollutants into navigable waters (defined in the Act as ``the 
waters of the United States'') from a point source unless the discharge 
complies with certain enumerated sections of the CWA, including 
obtaining authorizations to discharge pollutants pursuant to the 
section 402 National Pollutant Discharge Elimination System (NPDES) 
permit program and the section 404 dredged or fill material permit 
program. See id. at 1342 and 1344.
    Under this statutory scheme, the states are responsible for 
developing water quality standards for waters of the United States 
within their borders and reporting on the condition of those waters to 
EPA every two years. Id. at 1313, 1315. States are also responsible for 
developing total maximum daily loads (TMDLs) for waters that are not 
meeting established water quality standards and must submit those TMDLs 
to EPA for approval. Id. at 1313(d). States also have authority to 
issue water quality certifications or waive certification for every 
federal permit or license issued within their borders that may result 
in a discharge to navigable waters. Id. at 1341. A change to the 
interpretation of ``waters of the United States'' may change the scope 
of waters subject to CWA jurisdiction and thus may change the scope of 
waters for which states may assume these responsibilities under the 
Act.
    These same regulatory authorities can be assumed by Indian tribes 
under section 518 of the CWA, which authorizes EPA to treat eligible 
Indian tribes in a manner similar to states for a variety of purposes, 
including administering each of the principal

[[Page 32233]]

CWA regulatory programs. Id. at 1377(e). In addition, states and tribes 
retain sovereign authority to protect and manage the use of those 
waters that are not navigable waters under the CWA. See, e.g., id. at 
1251(b), 1251(g), 1370, 1377(a). Forty-seven states administer the CWA 
section 402 permit program for those waters of the United States within 
their boundaries, and two administer the section 404 permit program. At 
present, no tribes administer the section 402 or 404 programs.
    The agencies must develop regulatory programs designed to ensure 
that the full statute is implemented as Congress intended. See, e.g., 
Hibbs v. Winn, 542 U.S. 88, 101 (2004) (``A statute should be construed 
so that effect is given to all its provisions, so that no part will be 
inoperative or superfluous, void or insignificant.''). This includes 
pursuing the overall ``objective'' of the CWA to ``restore and maintain 
the chemical, physical, and biological integrity of the Nation's 
waters,'' 33 U.S.C. 1251(a), while implementing the specific ``policy'' 
directives from Congress to, among other things, ``recognize, preserve, 
and protect the primary responsibilities and rights of States to 
prevent, reduce, and eliminate pollution'' and ``to plan the 
development and use . . . of land and water resources,'' id. at 
1251(b). See Webster's II, New Riverside University Dictionary (1994) 
(defining ``policy'' as a ``plan or course of action, as of a 
government[,] designed to influence and determine decisions and 
actions;'' an ``objective'' is ``something worked toward or aspired to: 
Goal''). To maintain that balance, the agencies must determine what 
Congress had in mind when it defined ``navigable waters'' in 1972 as 
simply ``the waters of the United States''--and must do so in light of, 
inter alia, the policy directive to preserve and protect the states' 
rights and responsibilities.
    Congress' authority to regulate navigable waters derives from its 
power to regulate the ``channels of interstate commerce'' under the 
Commerce Clause. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); see 
also United States v. Lopez, 514 U.S. 549, 558-59 (1995) (describing 
the ``channels of interstate commerce'' as one of three areas of 
congressional authority under the Commerce Clause). The Supreme Court 
explained in SWANCC that the term ``navigable'' indicates ``what 
Congress had in mind as its authority for enacting the Clean Water Act: 
its traditional jurisdiction over waters that were or had been 
navigable in fact or which could reasonably be so made.'' 531 U.S. 159, 
172 (2001). The Court further explained that nothing in the legislative 
history of the Act provides any indication that ``Congress intended to 
exert anything more than its commerce power over navigation.'' Id. at 
168 n.3.
    The Supreme Court has cautioned that one must look to the 
underlying purpose of the statute to determine the scope of federal 
authority being exercised over navigable waters under the Commerce 
Clause. See PPL Montana, LLC v. Montana, 132 S. Ct. 1215, 1228 (2012). 
The Supreme Court did that in United States v. Riverside Bayview Homes, 
for example, and determined that Congress had intended ``to exercise 
its powers under the Commerce Clause to regulate at least some waters 
that would not be deemed `navigable' under the classical understanding 
of that term.'' 474 U.S. 121, 133 (1985) (``[T]he evident breadth of 
congressional concern for protection of water quality and aquatic 
ecosystems suggests that it is reasonable for the Corps to interpret 
the term `waters' to encompass wetlands adjacent to waters as more 
conventionally defined.''); see also SWANCC, 531 U.S. at 167 (noting 
that the Riverside Bayview ``holding was based in large measure upon 
Congress' unequivocal acquiescence to, and approval of, the Corps' 
regulations interpreting the CWA to cover wetlands adjacent to 
navigable waters'').
    The classical understanding of the term navigable was first 
articulated by the Supreme Court in The Daniel Ball:

    Those rivers must be regarded as public navigable rivers in law 
which are navigable in fact. And they are navigable in fact when 
they are used, or are susceptible of being used, in their ordinary 
condition, as highways of commerce, over which trade and travel are 
or may be conducted in the customary modes of trade and travel on 
water. And they constitute navigable waters of the United States 
within the meaning of the Acts of Congress, in contradistinction 
from the navigable waters of the States, when they form in their 
ordinary condition by themselves, or by uniting with other waters, a 
continued highway over which commerce is or may be carried on with 
other States or foreign countries in the customary modes in which 
such commerce is conducted by water.

77 U.S. (10 Wall.) 557, 563 (1871). Over the years, this traditional 
test has been expanded to include waters that had been used in the past 
for interstate commerce, see Economy Light & Power Co. v. United 
States, 256 U.S. 113, 123 (1921), and waters that are susceptible for 
use with reasonable improvement, see United States v. Appalachian Elec. 
Power Co., 311 U.S. 377, 407-10 (1940).
    By the time the 1972 CWA amendments were enacted, the Supreme Court 
had also made clear that Congress' authority over the channels of 
interstate commerce was not limited to regulation of the channels 
themselves, but could extend to activities necessary to protect the 
channels. See Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 
U.S. 508, 523 (1941) (``Congress may exercise its control over the non-
navigable stretches of a river in order to preserve or promote commerce 
on the navigable portions.''). The Supreme Court had also clarified 
that Congress could regulate waterways that formed a part of a channel 
of interstate commerce, even if they are not themselves navigable or do 
not cross state boundaries. See Utah v. United States, 403 U.S. 9, 11 
(1971).
    These developments were discussed during the legislative process 
leading up to the passage of the 1972 CWA amendments, and certain 
members referred to the scope of the amendments as encompassing 
waterways that serve as ``links in the chain'' of interstate commerce 
as it flows through various channels of transportation, such as 
railroads and highways. See, e.g., 118 Cong. Rec. 33756-57 (1972) 
(statement of Rep. Dingell); 118 Cong. Rec. 33699 (Oct. 4, 1972) 
(statement of Sen. Muskie).\10\ Other references suggest that 
congressional committees at least contemplated applying the ``control 
requirements'' of the Act ``to the navigable waters, portions thereof, 
and their tributaries.'' S. Rep. No. 92-414, 92nd Cong., 1st Sess. at 
77 (1971). And in 1977, when Congress authorized State assumption over 
the section 404 dredged or fill material permitting program, Congress 
limited the scope of assumable waters by requiring the Corps to retain 
permitting authority over Rivers and Harbors Act waters (as identified 
by the Daniel Ball test) plus wetlands adjacent to those waters, minus 
historic use only waters. See 33 U.S.C. 1344(g)(1).\11\ This suggests 
that Congress had in mind a broader scope of waters subject to CWA 
jurisdiction than waters traditionally understood as navigable. See 
SWANCC, 531 U.S. at 171; Riverside Bayview, 474 U.S. at 138 n.11.
---------------------------------------------------------------------------

    \10\ The agencies recognize that individual member statements 
are not a substitute for full congressional intent, but they do help 
provide context for issues that were discussed during the 
legislative debates. For a detailed discussion of the legislative 
history of the 1972 CWA amendments, see Albrecht & Nickelsburg, 
Could SWANCC Be Right? A New Look at the Legislative History of the 
Clean Water Act, 32 ELR 11042 (Sept. 2002).
    \11\ For a detailed discussion of the legislative history 
supporting the enactment of section 404(g), see Final Report of the 
Assumable Waters Subcommittee (May 2017), App. F.
---------------------------------------------------------------------------

    Thus, Congress intended to assert federal authority over more than 
just waters traditionally understood as navigable, and Congress rooted 
that

[[Page 32234]]

authority in ``its commerce power over navigation.'' SWANCC, 531 U.S. 
at 168 n.3. However, there must necessarily be a limit to that 
authority and to what water is subject to federal jurisdiction. How the 
agencies should exercise that authority has been the subject of dispute 
for decades, but the Supreme Court on three occasions has analyzed the 
issue and provided some instructional guidance.

2. U.S. Supreme Court Precedent

a. Adjacent Wetlands
    In Riverside Bayview, the Supreme Court considered the Corps' 
assertion of jurisdiction over ``low-lying, marshy land'' immediately 
abutting a water traditionally understood as navigable on the grounds 
that it was an ``adjacent wetland'' within the meaning of the Corps' 
then-existing regulations. 474 U.S. at 124. The Court addressed the 
question whether non-navigable wetlands may be regulated as ``waters of 
the United States'' on the basis that they are ``adjacent to'' 
navigable-in-fact waters and ``inseparably bound up with'' them because 
of their ``significant effects on water quality and the aquatic 
ecosystem.'' See id. at 131-35 & n.9.
    In analyzing the meaning of adjacency, the Court captured the 
difficulty in determining where the limits of federal jurisdiction end, 
noting that the line is somewhere between open water and dry land:

    In determining the limits of its power to regulate discharges 
under the Act, the Corps must necessarily choose some point at which 
water ends and land begins. Our common experience tells us that this 
is often no easy task: The transition from water to solid ground is 
not necessarily or even typically an abrupt one. Rather, between 
open waters and dry land may lie shallows, marshes, mudflats, 
swamps, bogs--in short, a huge array of areas that are not wholly 
aquatic but nevertheless fall far short of being dry land. Where on 
this continuum to find the limit of ``waters'' is far from obvious.

Id. at 132 (emphasis added). Within this statement, the Supreme Court 
identifies a basic principle for adjacent wetlands: The limits of 
jurisdiction lie within the ``continuum'' or ``transition'' ``between 
open waters and dry land.'' Observing that Congress intended the CWA 
``to regulate at least some waters that would not be deemed 
`navigable,' '' the Court therefore held that it is ``a permissible 
interpretation of the Act'' to conclude that ``a wetland that actually 
abuts on a navigable waterway'' falls within the ``definition of 
`waters of the United States.' '' Id. at 133, 135. Thus, a wetland that 
abuts a navigable water traditionally understood as navigable is 
subject to CWA permitting because it is ``inseparably bound up with the 
`waters' of the United States.'' Id. at 134. ``This holds true even for 
wetlands that are not the result of flooding or permeation by water 
having its source in adjacent bodies of open water.'' Id. The Court 
also noted that the agencies can establish categories of jurisdiction 
for adjacent wetlands. See id. at 135 n.9.
    The Supreme Court in Riverside Bayview declined to decide whether 
wetlands that are not adjacent to navigable waters could also be 
regulated by the agencies. See id. at 124 n.2 & 131 n.8. In SWANCC, 
however, the Supreme Court analyzed a similar question in the context 
of an abandoned sand and gravel pit located some distance from a 
traditional navigable water, with excavation trenches that ponded--some 
only seasonally--and served as habitat for migratory birds. 531 U.S. at 
162-65. The Supreme Court rejected the government's stated rationale 
for asserting jurisdiction over these ``nonnavigable, isolated, 
intrastate waters.'' Id. at 171-72. In doing so, the Supreme Court 
noted that Riverside Bayview upheld ``jurisdiction over wetlands that 
actually abutted on a navigable waterway'' because the wetlands were 
``inseparably bound up with the `waters' of the United States.'' Id. at 
167.\12\ As summarized by the SWANCC majority:
---------------------------------------------------------------------------

    \12\ For additional context, at oral argument during Riverside 
Bayview, the government attorney characterized the wetland at issue 
as ``in fact an adjacent wetland, adjacent--by adjacent, I mean it 
is immediately next to, abuts, adjoins, borders, whatever other 
adjective you might want to use, navigable waters of the United 
States.'' Transcript of Oral Argument at 16, United States v. 
Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (No. 84-701).

    It was the significant nexus between the wetlands and 
``navigable waters'' that informed our reading of the CWA in 
Riverside Bayview Homes. Indeed, we did not ``express any opinion'' 
on the ``question of authority of the Corps to regulate discharges 
of fill material into wetlands that are not adjacent to bodies of 
open water. . . . In order to rule for [the Corps] here, we would 
have to hold that the jurisdiction of the Corps extends to ponds 
that are not adjacent to open water. But we conclude that the text 
---------------------------------------------------------------------------
of the statute will not allow this.

Id. at 167-68 (internal citations omitted). That is because the text of 
section 404(a)--the permitting provision at issue in the case--included 
the word ``navigable'' as its operative phrase, and signaled a clear 
direction to the Court that ``Congress had in mind . . . its 
traditional jurisdiction over waters that were or had been navigable in 
fact or which could reasonably be so made.'' Id. at 172.
    The Court dismissed the argument that the use of the abandoned 
ponds by migratory birds fell within the power of Congress to regulate 
activities that in the aggregate have a substantial effect on 
interstate commerce, or that the targeted use of the ponds as a 
municipal landfill was commercial in nature. Id. at 173. Such 
arguments, the Court noted, raised ``significant constitutional 
questions.'' Id. ``Where an administrative interpretation of a statute 
invokes the outer limits of Congress' power, we expect a clear 
indication that Congress intended that result.'' Id. at 172-73 
(``Congress does not casually authorize administrative agencies to 
interpret a statute to push the limit of congressional authority.''). 
This is particularly true ``where the administrative interpretation 
alters the federal-state framework by permitting federal encroachment 
upon a traditional state power.'' Id. at 173; see also Atascadero State 
Hospital v. Scanlon, 473 U.S. 234, 242-43 (1985) (finding that where 
Congress intends to alter the ``usual constitutional balance between 
the States and the Federal Government,'' it must make its intention to 
do so ``unmistakably clear in the language of the statute''); Gregory 
v. Ashcroft, 501 U.S. 452, 460-61 (1991) (``[The] plain statement rule 
. . . acknowledg[es] that the States retain substantial sovereign 
powers under our constitutional scheme, powers with which Congress does 
not readily interfere.''). ``Rather than expressing a desire to 
readjust the federal-state balance in this manner, Congress chose [in 
the CWA] to `recognize, preserve, and protect the primary 
responsibilities and rights of States . . . to plan the development and 
use . . . of land and water resources. . . .'' SWANCC, 531 U.S. at 174 
(quoting 33 U.S.C. 1251(b)). The Court therefore found no clear 
statement from Congress that it had intended to permit federal 
encroachment on traditional state power, and construed the CWA to avoid 
the significant constitutional questions related to the scope of 
federal authority authorized therein. Id.
    The Supreme Court considered the concept of adjacency again several 
years later in consolidated cases arising out of the Sixth Circuit. See 
Rapanos v. United States, 547 U.S. 715 (2006). In one case, the Corps 
had determined that wetlands on three separate sites were subject to 
CWA jurisdiction because they were adjacent to ditches or man-made 
drains that eventually connected to traditional navigable waters 
several miles away through other ditches, drains, creeks, and/or 
rivers. Id. at 719-20, 729. In another case, the Corps had asserted

[[Page 32235]]

jurisdiction over a wetland separated from a man-made drainage ditch by 
a four-foot-wide man-made berm. Id. at 730. The ditch emptied into 
another ditch, which then connected to a creek, and eventually 
connected to Lake St. Clair, a traditional navigable water, 
approximately a mile from the parcel at issue. The berm was largely or 
entirely impermeable, but may have permitted occasional overflow from 
the wetland to the ditch. Id. The Court, in a fractured opinion, 
vacated and remanded the Sixth Circuit's decision upholding the Corps' 
asserted jurisdiction over the four wetlands at issue, with Justice 
Scalia writing for the plurality and Justice Kennedy concurring in the 
judgment. Id. at 757 (plurality), 787 (Kennedy, J.).
    The plurality determined that CWA jurisdiction only extended to 
adjacent ``wetlands with a continuous surface connection to bodies that 
are `waters of the United States' in their own right, so that there is 
no clear demarcation between `waters' and wetlands.'' Id. at 742. The 
plurality then concluded that ``establishing that wetlands . . . are 
covered by the Act requires two findings: first, that the adjacent 
channel contains a `wate[r] of the United States,' (i.e., a relatively 
permanent body of water connected to traditional interstate navigable 
waters); and second, that the wetland has a continuous surface 
connection with that water, making it difficult to determine where the 
`water' ends and the `wetland' begins.'' Id. (alteration in original).
    In order to reach the adjacency conclusion of this two-part test, 
the plurality interpreted the Riverside Bayview decision, and 
subsequent SWANCC decision characterizing Riverside Bayview, as 
authorizing jurisdiction over wetlands that physically abutted 
traditional navigable waters. Id. at 740-42. The plurality focused on 
the ``inherent ambiguity'' described in Riverside Bayview in 
determining where on the continuum between open waters and dry land the 
scope of federal jurisdiction should end. Id. at 740. It was ``the 
inherent difficulties of defining precise bounds to regulable waters,'' 
id. at 741 n.10, according to the plurality, that prompted the Court in 
Riverside Bayview to defer to the Corps' inclusion of adjacent wetlands 
as ``waters'' subject to CWA jurisdiction based on ecological 
considerations. Id. at 740-41 (``When we characterized the holding of 
Riverside Bayview in SWANCC, we referred to the close connection 
between waters and the wetlands they gradually blend into: `It was the 
significant nexus between the wetlands and `navigable waters' that 
informed our reading of the CWA in Riverside Bayview Homes.' ''). The 
plurality also noted that ``SWANCC rejected the notion that the 
ecological considerations upon which the Corps relied in Riverside 
Bayview . . . provided an independent basis for including entities like 
`wetlands' (or `ephemeral streams') within the phrase `the waters of 
the United States.' SWANCC found such ecological considerations 
irrelevant to the question whether physically isolated waters come 
within the Corps' jurisdiction.'' Id. at 741-42 (emphasis in original).
    Justice Kennedy disagreed with the plurality's determination that 
adjacency requires a ``continuous surface connection'' to covered 
waters. Id. at 772. In reading the phrase ``continuous surface 
connection'' to mean a continuous ``surface-water connection,'' id. at 
776, and interpreting the plurality's standard to include a ``surface-
water-connection requirement,'' id. at 774, Justice Kennedy stated that 
``when a surface-water connection is lacking, the plurality forecloses 
jurisdiction over wetlands that abut navigable-in-fact waters--even 
though such navigable waters were traditionally subject to federal 
authority,'' id. at 776, even after the Riverside Bayview Court 
``deemed it irrelevant whether `the moisture creating the wetlands . . 
. find[s] its source in the adjacent bodies of water,'' id. at 772 
(internal citations omitted). This is one reason why Justice Kennedy 
stated that ``Riverside Bayview's observations about the difficulty of 
defining the water's edge cannot be taken to establish that when a 
clear boundary is evident, wetlands beyond that boundary fall outside 
the Corps' jurisdiction.'' Id. at 773.
    The plurality did not directly address the precise distinction 
raised by Justice Kennedy, but did note in response that the 
``Riverside Bayview opinion required'' a ``continuous physical 
connection,'' id. at 751 n.13 (emphasis added), and focused on 
evaluating adjacency between a ``water'' and a wetland ``in the sense 
of possessing a continuous surface connection that creates the 
boundary-drawing problem we addressed in Riverside Bayview.'' Id. at 
757. The plurality also noted that its standard includes a ``physical-
connection requirement'' between wetlands and covered waters. Id. at 
751 n.13. In other words, the plurality appeared to be more focused on 
the abutting nature rather than the source of water creating the 
wetlands at issue in Riverside Bayview to describe the legal constructs 
applicable to adjacent wetlands, see id. at 747; see also Webster's II, 
New Riverside University Dictionary (1994) (defining ``abut'' to mean 
``to border on'' or ``to touch at one end or side of something''), and 
indeed agreed with Justice Kennedy and the Riverside Bayview Court that 
``[a]s long as the wetland is `adjacent' to covered waters . . . its 
creation vel non by inundation is irrelevant.'' Id. at 751 n.13.\13\
---------------------------------------------------------------------------

    \13\ The agencies' Rapanos Guidance recognizes the plurality's 
``continuous surface connection'' does not refer to a continuous 
surface water connection. See, e.g., Rapanos Guidance at 7 n.28 (``A 
continuous surface connection does not require surface water to be 
continuously present between the wetland and the tributary.'').
---------------------------------------------------------------------------

    Because physically disconnected wetlands do not raise the same 
boundary-drawing concerns presented by actually abutting wetlands, the 
plurality determined that the rationale in Riverside Bayview does not 
apply to such features. The plurality stated that ``[w]etlands with 
only an intermittent, physically remote hydrologic connection to 
`waters of the United States' do not implicate the boundary-drawing 
problem of Riverside Bayview, and thus lack the necessary connection to 
covered waters that we described as a `significant nexus' in 
SWANCC[.]'' Id. at 742. The plurality supported this position by 
referring to the Court's treatment of isolated waters in SWANCC as non-
jurisdictional. Id. at 726, 741-42 (``[W]e held that `nonnavigable, 
isolated, intrastate waters'--which, unlike the wetlands at issue in 
Riverside Bayview, did not `actually abu[t] on a navigable waterway,'--
were not included as `waters of the United States.' ''). The plurality 
found ``no support for the inclusion of physically unconnected wetlands 
as covered `waters' '' based on Riverside Bayview's treatment of the 
Corps' definition of adjacent. Id. at 746-47; see also id. at 746 
(``[T]he Corps' definition of `adjacent' . . . has been extended beyond 
reason.'').
    Concurring in the judgment, Justice Kennedy focused on the 
``significant nexus'' between the adjacent wetlands and traditional 
navigable waters as the basis for determining whether a wetland is a 
water subject to CWA jurisdiction: ``It was the significant nexus 
between wetlands and navigable waters . . . that informed our reading 
of the [Act] in Riverside Bayview Homes. Because such a nexus was 
lacking with respect to isolated ponds, [in SWANCC] the Court held that 
the plain text of the statute did not permit the Corps' action.'' Id. 
at 767 (internal quotations and citations omitted). Justice Kennedy 
noted that the wetlands at issue in Riverside Bayview were ``adjacent 
to [a] navigable-in-fact waterway[ ],'' while the ``ponds and

[[Page 32236]]

mudflats'' considered in SWANCC ``were isolated in the sense of being 
unconnected to other waters covered by the Act.'' Id. at 765-66. 
``Taken together, these cases establish that in some instances, as 
exemplified by Riverside Bayview, the connection between a nonnavigable 
water or wetland and a navigable water may be so close, or potentially 
so close, that the Corps may deem the water or wetland a `navigable 
water' under the Act. In other instances, as exemplified by SWANCC, 
there may be little or no connection. Absent a significant nexus, 
jurisdiction under the Act is lacking.'' Id. at 767.
    According to Justice Kennedy, whereas the isolated ponds and 
mudflats in SWANCC lack the ``significant nexus'' to navigable waters, 
it is the ``conclusive standard for jurisdiction'' based on ``a 
reasonable inference of ecological interconnection'' between adjacent 
wetlands and navigable-in-fact waters that allows for their categorical 
inclusion as waters of the United States. Id. at 780 (``[T]he assertion 
of jurisdiction for those wetlands [adjacent to navigable-in-fact 
waters] is sustainable under the act by showing adjacency alone.''). 
Justice Kennedy surmised that it may be that the same rationale 
``without any inquiry beyond adjacency . . . could apply equally to 
wetlands adjacent to certain major tributaries,'' noting that the Corps 
could establish by regulation categories of tributaries based on volume 
of flow, proximity to navigable waters, or other factors that ``are 
significant enough that wetlands adjacent to them are likely, in the 
majority of cases, to perform important functions for an aquatic system 
incorporating navigable waters.'' Id. at 780-81. However, ``[t]he 
Corps' existing standard for tributaries'' provided Justice Kennedy 
``no such assurance'' to infer the categorical existence of a requisite 
nexus between waters traditionally understood as navigable and wetlands 
adjacent to nonnavigable tributaries. Id. at 781. That is because:

the breadth of [the tributary] standard--which seems to leave wide 
room for regulation of drains, ditches, and streams remote from any 
navigable-in-fact water and carrying only minor water volumes 
towards it--precludes its adoption as the determinative measure of 
whether adjacent wetlands are likely to play an important role in 
the integrity of an aquatic system comprising navigable waters as 
traditionally understood. Indeed, in many cases wetlands adjacent to 
tributaries covered by this standard might appear little more 
related to navigable-in-fact waters than were the isolated ponds 
held to fall beyond the Act's scope in SWANCC.

Id. at 781-82.
    Justice Kennedy stated that, absent development of a more specific 
regulation, the Corps ``must establish a significant nexus on a case-
by-case basis when it seeks to regulate wetlands based on adjacency to 
nonnavigable tributaries. Given the potential overbreadth of the Corps' 
regulations, this showing is necessary to avoid unreasonable 
applications of the statute.'' Id. at 782. Justice Kennedy explained 
that ``wetlands possess the requisite nexus, and thus come within the 
statutory phrase `navigable waters,' if the wetlands, either alone or 
in combination with similarly situated lands in the region, 
significantly affect the chemical, physical, and biological integrity 
of other covered waters more readily understood as `navigable.' '' Id. 
at 780. ``Where an adequate nexus is established for a particular 
wetland, it may be permissible, as a matter of administrative 
convenience or necessity, to presume covered status for other 
comparable wetlands in the region.'' Id. at 782.
    In describing this significant nexus test, Justice Kennedy relied, 
in part, on the overall objective of the CWA to ``restore and maintain 
the chemical, physical, and biological integrity of the Nation's 
waters.'' Id. at 779 (quoting 33 U.S.C. 1251(a)). Justice Kennedy also 
agreed with the plurality that ``environmental concerns provide no 
reason to disregard limits in the statutory text.'' Id. at 778. With 
respect to wetlands adjacent to nonnavigable tributaries, Justice 
Kennedy therefore determined that ``mere adjacency . . . is 
insufficient. A more specific inquiry, based on the significant-nexus 
standard, is . . . necessary.'' Id. at 786. Not requiring adjacent 
wetlands to possess a significant nexus with navigable waters, Justice 
Kennedy noted, would allow a finding of jurisdiction ``whenever 
wetlands lie alongside a ditch or drain, however remote and 
insubstantial, that eventually may flow into traditional navigable 
waters. The deference owed the Corps' interpretation of the statute 
does not extend so far.'' Id. at 778-79.
    Based on the agencies' review of this Supreme Court precedent, 
although the plurality and Justice Kennedy established different 
standards to determine the jurisdictional status of wetlands adjacent 
to nonnavigable tributaries, they both appear to agree in principle 
that the determination must be made using a two-part test that 
considers: (1) The proximity of the wetland to the tributary; and (2) 
the status of the tributary with respect to downstream traditional 
navigable waters. The plurality and Justice Kennedy also agree that the 
proximity between the wetland and the tributary must be close. The 
plurality refers to that proximity as a ``continuous surface 
connection'' or ``continuous physical connection,'' as demonstrated in 
Riverside Bayview. Id. at 742, 751 n.13. Justice Kennedy recognized 
that ``the connection between a nonnavigable water or wetland and a 
navigable water may be so close, or potentially so close, that the 
Corps may deem the water or wetland a `navigable water' under the 
Act.'' Id. at 767. The second part of the two-part tests established by 
the plurality and Justice Kennedy is addressed in the next section.
b. Tributaries
    The definition of tributaries was not addressed in either Riverside 
Bayview or SWANCC. And while the focus of Rapanos was on whether the 
Corps could regulate wetlands adjacent to nonnavigable waters, the 
plurality and concurring opinions provide some guidance on the 
regulatory status of tributaries to navigable-in-fact waters.
    The plurality and Justice Kennedy both recognized that the 
jurisdictional scope of the CWA is not restricted to traditional 
navigable waters. See id. at 731 (plurality) (``[T]he Act's term 
`navigable waters' includes something more than traditional navigable 
waters.''); id. at 767 (Justice Kennedy) (``Congress intended to 
regulate at least some waters that are not navigable in the traditional 
sense.''). Both also agree that federal authority under the Act is not 
without limit. See id. at 731-32 (plurality) (``[T]he waters of the 
United States . . . cannot bear the expansive meaning that the Corps 
would give it.''); id. at 778-79 (Justice Kennedy) (``The deference 
owed to the Corps' interpretation of the statute does not extend'' to 
``wetlands'' which ``lie alongside a ditch or drain, however remote or 
insubstantial, that eventually may flow into traditional navigable 
waters.'').
    With respect to tributaries specifically, both the plurality and 
Justice Kennedy focus in large part on a tributary's contribution of 
flow to, and connection with, traditional navigable waters. The 
plurality would include as waters of the United States ``only 
relatively permanent, standing or flowing bodies of water'' and would 
define such ``waters'' as including streams, rivers, oceans, lakes and 
other bodies of waters that form geographical features, noting that all 
such ``terms connote continuously present, fixed bodies of water . . . 
.'' Id. at 732-33, 739. On the other hand, the plurality would likely 
exclude ephemeral streams

[[Page 32237]]

and related features. Id. at 733-34, 739, 741. Justice Kennedy would 
likely exclude some streams considered jurisdictional under the 
plurality's test. Id. at 769 (noting that under the plurality's test, 
``[t]he merest trickle, if continuous, would count as a `water' subject 
to federal regulation, while torrents thundering at irregular intervals 
through otherwise dry channels would not'').
    In addition, both the plurality and Justice Kennedy would likely 
include some intermittent streams as waters of the United States. See 
id. at 732-33 & n.5 (plurality); id. at 769-70 (Justice Kennedy). The 
plurality noted that its reference to ``relatively permanent'' waters 
did ``not necessarily exclude streams, rivers, or lakes that might dry 
up in extraordinary circumstances, such as drought,'' or ``seasonal 
rivers, which contain continuous flow during some months of the year 
but no flow during dry months . . . .'' Id. at 732 n.5 (emphasis in 
original). However, neither the plurality nor Justice Kennedy defined 
with precision where to draw the line. Nevertheless, the plurality 
provided that ``navigable waters'' must have ``at bare minimum, the 
ordinary presence of water,'' id. at 734, and Justice Kennedy noted 
that the Corps can identify by regulation categories of tributaries 
based on volume of flow, proximity to navigable waters, or other 
factors that ``are significant enough that wetlands adjacent to them 
are likely, in the majority of cases, to perform important functions 
for an aquatic system incorporating navigable waters.'' Id. at 780-81. 
And both the plurality and Justice Kennedy agreed that the Corps' 
assertion of jurisdiction over the wetlands adjacent to the ``drains, 
ditches, and streams remote from any navigable-in-fact water,'' id. at 
781 (Kennedy), at issue in Rapanos raised significant jurisdictional 
questions. Id. at 737-38 (plurality); id. at 781-82 (Kennedy).
3. Principles and Considerations
    From this legal foundation, a few important principles emerge from 
which the agencies can evaluate their authorities. First, the power 
conferred on the agencies to regulate the waters of the United States 
is grounded in Congress' commerce power over navigation. The agencies 
can choose to regulate beyond waters more traditionally understood as 
navigable given the broad purposes of the CWA, including some 
tributaries to those traditional navigable waters, but must provide a 
reasonable basis grounded in the language and structure of the Act for 
determining the extent of jurisdiction. The agencies also can choose to 
regulate wetlands adjacent to the traditional navigable waters and some 
tributaries, if the wetlands are in close proximity to the tributaries, 
such as in the transitional zone between open waters and dry land. In 
the agencies' view, it would not be consistent with Justice Kennedy's 
Rapanos opinion or the Rapanos plurality opinion to regulate wetlands 
adjacent to all tributaries, no matter how small or remote from 
navigable water. The Court's opinion in SWANCC also calls into serious 
question the agencies' authority to regulate nonnavigable, isolated, 
intrastate waters that lack a sufficient connection to traditional 
navigable waters, and suggests that the agencies should avoid 
regulatory interpretations of the CWA that raise constitutional 
questions regarding the scope of their statutory authority. The 
agencies can, however, regulate certain waters by category, which could 
improve regulatory predictability and certainty and ease administrative 
burden while still effectuating the purposes of the Act.
    In developing a clear and predictable regulatory framework, the 
agencies also must respect the primary responsibilities and rights of 
States and Tribes to regulate their land and water resources. See 33 
U.S.C. 1251(b), 1370. The oft-quoted objective of the CWA to ``restore 
and maintain the chemical, physical, and biological integrity of the 
Nation's waters,'' id. at 1251(a), must be implemented in a manner 
consistent with Congress' policy directives to the agencies. The 
Supreme Court long ago recognized the distinction between federal 
waters traditionally understood as navigable and waters ``subject to 
the control of the States.'' The Daniel Ball, 77 U.S. (10 Wall.) 557, 
564-65 (1871). Over a century later, the Supreme Court in SWANCC 
reaffirmed the State's ``traditional and primary power over land and 
water use.'' 531 U.S. at 174; accord Rapanos, 547 U.S. at 738 (Scalia, 
J., plurality opinion). Ensuring that States and Tribes retain 
authority over their land and water resources pursuant to CWA section 
101(b) and section 510 helps carry out the overall objective of the 
CWA, and ensures that the agencies are giving full effect and 
consideration to the entire structure and function of the Act, 
including Congress' intent as reflected in dozens of non-regulatory 
grant, research, nonpoint source, groundwater, and watershed planning 
programs to assist the states in controlling pollution in the nation's 
waters, not just its navigable waters.
    Further, the agencies are cognizant that the ``Clean Water Act 
imposes substantial criminal and civil penalties for discharging any 
pollutant into waters covered by the Act without a permit. . . .'' U.S. 
Army Corps of Eng'rs v. Hawkes Co., 136 S. Ct. 1807, 1812 (2016); see 
also Sackett v. EPA, 566 U.S. 120, 132-33 (2012) (Alito, J., 
concurring) (``[T]he combination of the uncertain reach of the Clean 
Water Act and the draconian penalties imposed for the sort of 
violations alleged in this case still leaves most property owners with 
little practical alternative but to dance to the EPA's tune.''). As the 
Chief Justice observed in Hawkes, ``[i]t is often difficult to 
determine whether a particular piece of property contains waters of the 
United States, but there are important consequences if it does.'' 136 
S. Ct. at 1812; see also id. at 1816-17 (Kennedy, J., concurring) 
(``[T]he reach and systemic consequences of the Clean Water Act remain 
a cause for concern,'' and the Act ``continues to raise troubling 
questions regarding the Government's power to cast doubt on the full 
use and enjoyment of private property throughout the Nation.''). Given 
the significant civil and criminal penalties associated with the CWA, 
it is important for the agencies to promote regulatory certainty while 
striving to provide fair and predictable notice of the limits of 
federal jurisdiction. See, e.g., Sessions v. Dimaya, 138 S. Ct. 1204, 
1223-25 (2018) (Gorsuch, J., concurring in part and concurring in the 
judgment) (characterizing fair notice as possibly the most fundamental 
of the protections provided by the Constitution's guarantee of due 
process, and stating that vague laws are an exercise of ``arbitrary 
power . . . leaving the people in the dark about what the law demands 
and allowing prosecutors and courts to make it up'').

C. Proposed Reasons for Repeal

    The agencies' proposal is based on our view that regulatory 
certainty may be best served by repealing the 2015 Rule and recodifying 
the preexisting scope of CWA jurisdiction. Specifically, the agencies 
are concerned that rather than achieving their stated objectives of 
increasing regulatory predictability and consistency under the CWA, 
retaining the 2015 Rule creates significant uncertainty for agency 
staff, regulated entities, and the public, which is compounded by court 
decisions that have increased litigation risk and cast doubt on the 
legal viability of the rule. To provide for greater regulatory 
certainty, the agencies propose to revert to the pre-2015 regulations, 
a regulatory regime that is more familiar to and better-understood by 
the agencies, States, Tribes, local governments, regulated entities, 
and the public.

[[Page 32238]]

    Further, as a result of the agencies' review and reconsideration of 
their statutory authority and in light of the court rulings against the 
2015 Rule that have suggested that the agencies' interpretation of the 
``significant nexus'' standard as applied in the 2015 Rule was 
expansive and does not comport with and accurately implement the limits 
on jurisdiction reflected in the CWA and decisions of the Supreme 
Court, the agencies are also concerned that the 2015 Rule lacks 
sufficient statutory basis. The agencies are proposing to conclude in 
the alternative that, at a minimum, the interpretation of the statute 
adopted in the 2015 Rule is not compelled, and a different policy 
balance can be appropriate.
    Considering the substantial uncertainty associated with the 2015 
Rule resulting from its legal challenges, and the substantial 
experience the agencies and others possess with the longstanding 
regulatory framework currently being administered by the agencies, the 
agencies conclude that clarity, predictability, and consistency may be 
best served by repealing the 2015 Rule and thus are proposing to do so. 
The agencies may still propose changes to the definition of ``waters of 
the United States'' in a future rulemaking.
    Further, the agencies are concerned that certain findings and 
assumptions supporting adoption of the 2015 Rule were not correct, and 
that these conclusions, if erroneous, may separately justify repeal of 
the 2015 Rule. The agencies are concerned and seek comment on whether 
the 2015 Rule significantly expanded jurisdiction over the preexisting 
regulatory program, as implemented by the agencies, and whether that 
expansion altered State, tribal, and local government relationships in 
implementing CWA programs. The agencies therefore propose to repeal the 
2015 Rule in order to restore those preexisting relationships and 
better serve the balance of authorities envisioned in CWA section 
101(b).
1. The 2015 Rule Fails To Achieve Regulatory Certainty
    The agencies are proposing to repeal the 2015 Rule because it does 
not appear to achieve one of its primary goals of providing regulatory 
certainty and consistency. When promulgating the 2015 Rule, the 
agencies concluded the rule would ``increase CWA program predictability 
and consistency by clarifying the scope of `waters of the United 
States' protected under the Act.'' 80 FR 37054. The agencies stated 
that the 2015 ``rule reflect[ed] the judgment of the agencies in 
balancing the science, the agencies' expertise, and the regulatory 
goals of providing clarity to the public while protecting the 
environment and public health, consistent with the law.'' Id. at 37065. 
Since then, developments in the litigation against the 2015 Rule and 
concerns raised since the rule's promulgation indicate that maintaining 
the 2015 Rule would produce substantial uncertainty and confusion among 
state and federal regulators and enforcement officials, the regulated 
public, and other interested stakeholders. To provide for greater 
regulatory certainty, the agencies propose to repeal the 2015 Rule and 
restore a longstanding regulatory framework that is more familiar to 
and better-understood by the agencies, our co-regulators, and regulated 
entities, until the agencies propose and finalize a replacement 
definition.
a. Litigation to Date
    As noted above, the 2015 Rule has been challenged in legal actions 
across multiple district courts, in which plaintiffs have raised a 
number of substantive and procedural claims against the rule. Petitions 
for review were also filed in multiple courts of appeals and were 
consolidated in the U.S. Court of Appeals for the Sixth Circuit. To 
date, all three of the courts that substantively have considered the 
2015 Rule--the Sixth Circuit, the District of North Dakota, and the 
Southern District of Georgia--have found that petitioners seeking to 
overturn the rule are likely to succeed on the merits of at least some 
of their claims against the rule.
    In the Sixth Circuit, the court granted a nationwide stay of the 
2015 Rule after finding, among other factors, that the petitioners 
showed a ``substantial possibility of success on the merits'' of their 
claims against the 2015 Rule, including claims that the rule was 
inconsistent with Justice Kennedy's opinion in Rapanos and that the 
rule's distance limitations were not substantiated by specific 
scientific support. In re EPA, 803 F.3d 804, 807 (6th Cir. 2015).
    The District of North Dakota made similar findings in issuing a 
preliminary injunction against the 2015 Rule. There, the court found 
that the plaintiff-States are ``likely to succeed on the merits of 
their claim'' that the rule violated the congressional grant of 
authority to the agencies under the CWA because the rule ``likely 
fails'' to meet Justice Kennedy's significant nexus test. North Dakota 
v. EPA, 127 F. Supp. 3d 1047, 1055-56 (D.N.D. 2015). The court also 
found that the plaintiff-States have a fair chance of success on the 
merits of their procedural claims that the agencies failed to comply 
with APA requirements in promulgating the rule. Id. at 1056-57.
    The Southern District of Georgia also preliminarily enjoined the 
2015 Rule, holding that the State plaintiffs had demonstrated ``a 
likelihood of success on their claims that the [2015] WOTUS Rule was 
promulgated in violation of the CWA and the APA.'' Georgia v. Pruitt, 
No. 15-cv-79, 2018 U.S. Dist. LEXIS 97223, at *14 (S.D. Ga. June 8, 
2018) (``Georgia'') (granting preliminary injunction). The court 
determined that the 2015 Rule likely failed to meet the standard 
expounded in SWANCC and Rapanos, and that the rule was likely fatally 
defective because it ``allows the Agencies to regulate waters that do 
not bear any effect on the `chemical, physical, and biological 
integrity' of any navigable-in-fact water.'' Id. at *17-18. The court 
also held that the plaintiffs ``have demonstrated a likelihood of 
success on both of their claims under the APA'' that the 2015 Rule ``is 
arbitrary and capricious'' and ``that the final rule is not a logical 
outgrowth of the proposed rule.'' Id. at *18.
    These rulings indicate that substantive or procedural challenges to 
the 2015 Rule are likely to be successful, particularly claims that the 
rule is not authorized under the CWA and was promulgated in violation 
of the APA. A successful challenge to the 2015 Rule could result in a 
court order vacating the rule in all or part, in all or part of the 
country, and potentially resulting in different regulatory regimes 
being in effect in different parts of the country, which would likely 
lead to substantial regulatory confusion, uncertainty, and 
inconsistency.
    Notably, the agencies face an increasing risk of a court order 
vacating the 2015 Rule. The District of North Dakota is proceeding to 
hear the merits of the plaintiff-States' claims against the 2015 Rule 
in that case, and the plaintiff-States in the Southern District of 
Georgia have requested a similar merits-briefing schedule. See 
Scheduling Order, North Dakota v. EPA, No. 15-cv-59 (D.N.D. May 2, 
2018); Response to Defendants' Updated Response to Plaintiff States' 
Motion for Preliminary Injunction at 11-12, Georgia, No. 15-cv-79 (S.D. 
Ga. May 29, 2018). Although the applicability date rule ensures that 
the 2015 Rule will not go into effect until February 6, 2020, the 
prospect of a court order vacating the 2015 Rule creates additional 
regulatory uncertainty.

[[Page 32239]]

b. Stakeholder Confusion Regarding the Scope of the 2015 Rule and 
Extent of Federal CWA Jurisdiction
    Statements made in the litigation against the 2015 Rule and in 
comments regarding the 2015 Rule indicate that there has been 
substantial disagreement and confusion as to the scope of the 2015 Rule 
and the extent of federal CWA jurisdiction more broadly. In the Sixth 
Circuit, for example, State petitioners asserted that the 2015 Rule 
covers waters outside the scope of the CWA pursuant to SWANCC and 
Rapanos and ``extends jurisdiction to virtually every potentially wet 
area of the country.'' \14\ Industry petitioners contended that the 
rule's ``uncertain standards are impossible for the public to 
understand or the agencies to apply consistently.'' \15\ In contrast, 
environmental petitioners found that SWANCC and Rapanos led to 
widespread confusion over the scope of the CWA and that the pre-2015 
regulatory regime could theoretically apply to ``almost all waters and 
wetlands across the country.'' \16\ These petitioners asserted that the 
2015 Rule violated the CWA by failing to cover certain waters, 
including waters that may possess a ``significant nexus'' to 
traditional navigable waters.\17\ Whether such comments are accurate or 
not, they indicate continued widespread disagreement and confusion over 
the meaning of the 2015 Rule and extent of jurisdiction it entails.
---------------------------------------------------------------------------

    \14\ Opening Brief of State Petitioners at 15, 61, In re EPA, 
No. 15-3751 (6th Cir. Nov. 1, 2016).
    \15\ Opening Brief for the Business & Municipal Petitioners, In 
re EPA, No. 15-3751 (6th Cir. Nov. 1, 2016).
    \16\ Brief of Conservation Groups at 11, In re EPA, No. 15-3751 
(6th Cir. Nov. 1, 2016).
    \17\ See, e.g., id. at 22, 43.
---------------------------------------------------------------------------

    Some comments received on the July 27, 2017 NPRM also demonstrate 
continued confusion over the scope and various provisions of the 2015 
Rule. For example, one commenter found that the rule's definitions of 
``adjacent,'' ``significant nexus'' and other key terms lack clarity 
and thus lead to regulatory uncertainty.\18\ This same commenter 
contended that the rule could raise constitutional concerns related to 
the appropriate scope of federal authority and encouraged the agencies 
to undertake a new rulemaking to more clearly articulate the extent of 
federal CWA authority. Another commenter echoed these concerns, 
alleging that the 2015 Rule resulted in a ``vague and indecipherable 
explanation'' of the definition of ``waters of the United States'' that 
has caused confusion and uncertainty as to the extent of jurisdiction 
that can be asserted by federal, state and local authorities.\19\
---------------------------------------------------------------------------

    \18\ See comments submitted by Oregon Cattlemen's Association 
(July 27, 2017) (Docket ID: EPA-HQ-OW-2017-0203-0039), available at 
https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-0039.
    \19\ See comments submitted by Skagit County Dike, Drainage and 
Irrigation District No. 12 and Skagit County Dike District No. 1 
(Sept. 27, 2017) (Docket ID: EPA-HQ-OW-2017-0203-11709), available 
at https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-11709.
---------------------------------------------------------------------------

    The agencies have received comments from numerous other individuals 
and entities expressing confusion and concern about the extent of 
federal CWA jurisdiction asserted under the 2015 Rule, and the agencies 
are continuing to review and consider these comments.
c. Impact on State Programs
    Like other commenters on the proposal to the 2015 Rule, some States 
expressed confusion regarding the scope of the proposal and, uniquely, 
the potential impacts of that uncertainty on States' ability to 
implement CWA programs. Though some States have stated that the 2015 
Rule ``more clearly identifies what types of waters would be considered 
jurisdictional,'' \20\ others assert that the extent of CWA 
jurisdiction under the rule remained ``fuzzy'' and unclear.\21\ Certain 
States noted that this uncertainty could ``create time delays in 
obtaining permits which previously were not required'' \22\ and 
``result in increased costs to the State and other private and public 
interests, along with decreased regulatory efficiency.'' \23\ One State 
suggested that even if the 2015 Rule established greater regulatory 
clarity, the rule's case-by-case determinations could result in 
permitting delays when a jurisdictional determination is required.\24\
---------------------------------------------------------------------------

    \20\ See, e.g., comments submitted by State of Washington, 
Department of Ecology (Nov. 13, 2014) (Docket ID: EPA-HQ-OW-2011-
0880-13957), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-13957.
    \21\ See, e.g., comments submitted by State of Oklahoma (Nov. 
14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-14625), available at 
https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-14625; 
see also comments submitted by National Association of Counties 
(Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-15081), available at 
https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15081.
    \22\ See comments submitted by State of Utah, Governor's Office 
(Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-16534), available at 
https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-16534.
    \23\ See comments submitted by Wyoming Department of 
Environmental Quality (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-
0880-16393), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-16393.
    \24\ See comments submitted by State of Washington, Department 
of Ecology, supra note 20.
---------------------------------------------------------------------------

    Similar concerns have been raised in the litigation challenging the 
2015 Rule. For example, in the Southern District of Georgia, the State 
of Indiana has asserted that the 2015 Rule's definition of ``waters of 
the United States'' is ``vague'' and that the rule ``imposes . . . 
unclear regulatory requirements that will result in an inefficient use 
of limited regulatory resources.'' \25\ In particular, the State 
asserts concerns that implementing the 2015 Rule will divert resources 
by ``[d]emanding the time and attention of regulators to make the now-
difficult determination of when and whether a feature is a WOTUS'' and 
``[g]enerating unnecessary administrative appeals and lawsuits to 
resolve jurisdictional disputes.'' \26\
---------------------------------------------------------------------------

    \25\ Statement of Bruno L. Pigott, Georgia, No. 15-cv-79 (S.D. 
Ga. July 21, 2015).
    \26\ Id.
---------------------------------------------------------------------------

d. Agency Experience With the 1986 Regulations
    The agencies have been implementing the pre-2015 regulations 
(hereinafter referred to as the ``1986 regulations'') almost 
uninterruptedly since 1986. Corps staff are trained on making 
jurisdictional determinations in the field and through national 
webinars and classroom or field-based trainings. From June 2007 through 
June 2018, the Corps issued 241,857 \27\ approved jurisdictional 
determinations (AJDs) under their 1986 regulations, as informed by 
applicable Supreme Court precedent and the agencies' guidance.
---------------------------------------------------------------------------

    \27\ U.S. Army Corps of Engineers, OMBIL Regulatory Module (June 
5, 2018).
---------------------------------------------------------------------------

    Through over 30 years of experience, the agencies have developed 
significant technical expertise with the 1986 regulations and have had 
the opportunity to refine the application of the rules through guidance 
and the agencies' experience and federal court decisions. Indeed, the 
1986 regulations have been the subject of a wide body of case law, 
including three significant U.S. Supreme Court decisions \28\ and 
dozens of cases in federal district courts and courts of appeals that 
have addressed the scope of analysis required. Since 1986, the agencies 
have issued numerous memoranda, guidance, and question-and-answer 
documents explaining and clarifying these regulations.\29\
---------------------------------------------------------------------------

    \28\ Riverside Bayview, 474 U.S. 121 (1985); SWANCC, 531 U.S. 
159 (2001); Rapanos, 547 U.S. 715 (2006).
    \29\ The Corps maintains many of these documents on its public 
website, available at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Related-Resources/CWA-Guidance/
. The EPA maintains many of these documents as well; see also 
https://www.epa.gov/wotus-rule/about-waters-united-states.
---------------------------------------------------------------------------

    Given the longstanding nature and history of the 1986 regulations, 
this

[[Page 32240]]

regulatory regime is more familiar to the agencies, co-regulators, and 
regulated entities. For this reason, as between the 2015 Rule and the 
1986 regulations, the 1986 regulations (as informed by applicable 
Supreme Court precedent and the agencies' guidance) would appear to 
provide for greater regulatory predictability, consistency, and 
certainty, and the agencies seek public comment on this issue. Though 
the agencies acknowledge that the 1986 regulations have posed certain 
implementation difficulties and were the subject of court decisions 
that had the effect of narrowing their scope, the longstanding nature 
of the regulatory regime--coupled with the agencies' and others' 
extensive experience with the regulatory scheme--make it preferable to 
the regulatory uncertainty posed by the 2015 Rule.
2. The 2015 Rule May Exceed the Agencies' Authority Under the CWA
    The agencies are concerned that the 2015 Rule exceeded EPA's 
authority under the CWA by adopting an expansive interpretation of the 
``significant nexus'' standard that covers waters outside the scope of 
the Act and stretches the significant nexus standard so far as to be 
inconsistent with important aspects of Justice Kennedy's opinion in 
Rapanos, even though this opinion was identified as the basis for the 
significant nexus standard articulated in the 2015 Rule. In particular, 
the agencies are concerned that the 2015 Rule took an expansive reading 
of Justice Kennedy's significant nexus test and exceeds the agencies' 
authority under the Act.
    As expounded in Rapanos, Justice Kennedy's significant nexus 
standard is a test intended to limit federal jurisdiction due to the 
breadth of the Corps' then-existing standard for tributaries and in 
order to ``prevent[ ] problematic applications of the statute.'' 547 
U.S. at 783. ``Given the potential overbreadth of the Corps' [1986] 
regulations,'' Justice Kennedy found that the showing of a significant 
nexus ``is necessary to avoid unreasonable applications of the 
statute.'' Id. at 782. The agencies are concerned, upon further 
consideration of the 2015 Rule, that the significant nexus standard 
articulated in that rule could lead to similar unreasonable 
applications of the CWA.
    Justice Kennedy wrote that adjacent ``wetlands possess the 
requisite nexus, and thus come within the statutory phrase `navigable 
waters,' if the wetlands, either alone or in combination with similarly 
situated lands in the region, significantly affect the chemical, 
physical, and biological integrity of other covered waters more readily 
understood as `navigable.' '' 547 U.S. at 780. The opinion did not 
expressly define the relevant ``region'' or what was meant by 
``similarly situated,'' but it is reasonable to presume that that the 
Justice did not mean ``similarly situated'' to be synonymous with 
``all'' waters in a region. The agencies' Rapanos Guidance, for 
example, had interpreted the term ``similarly situated'' more narrowly 
to ``include all wetlands adjacent to the same tributary.'' \30\ ``A 
tributary . . . is the entire reach of the stream that is of the same 
order (i.e., from the point of confluence, where two lower order 
streams meet to form the tributary, downstream to the point such 
tributary enters a higher order stream).'' \31\ Thus, under the 
agencies' 2008 guidance, ``where evaluating significant nexus for an 
adjacent wetland, the agencies will consider the flow characteristics 
and functions performed by the tributary to which the wetland is 
adjacent along with the functions performed by the wetland and all 
other wetlands adjacent to that tributary. This approach reflects the 
agencies' interpretation of Justice Kennedy's term `similarly situated' 
to include all wetlands adjacent to the same tributary. . . . 
Interpreting the phrase `similarly situated' to include all wetlands 
adjacent to the same tributary is reasonable because such wetlands are 
physically located in a like manner (i.e., lying adjacent to the same 
tributary).'' \32\
---------------------------------------------------------------------------

    \30\ Rapanos Guidance at 8.
    \31\ Id. at 10.
    \32\ Id.
---------------------------------------------------------------------------

    The 2015 Rule departed from this interpretation of ``similarly 
situated'' wetlands in a ``region,'' including applying it to other 
waters, not only wetlands, that were not already categorically 
jurisdictional as tributaries or adjacent waters. The proposed rule, 
for example, stated that ``[o]ther waters, including wetlands, are 
similarly situated when they perform similar functions and are located 
sufficiently close together or sufficiently close to a `water of the 
United States' so that they can be evaluated as a single landscape unit 
with regard to their effect on the chemical, physical, or biological 
integrity of a [primary] water.'' 79 FR 22263 (April 21, 2014). The 
2015 Rule took it a step further and stated that ``the downstream 
health of larger downstream waters is directly related to the aggregate 
health of waters located upstream, including waters such as wetlands 
that may not be hydrologically connected but function together to 
ameliorate the potential impacts of flooding and pollutant 
contamination from affecting downstream waters.'' 80 FR 37063. The 2015 
Rule thus concluded that ``[a] water has a significant nexus when any 
single function or combination of functions performed by the water, 
alone or together with similarly situated waters in the region, 
contributes significantly to the chemical, physical, or biological 
integrity of the nearest [primary] water.'' Id. at 37106. The ``term 
`in the region' means the watershed that drains to the nearest 
[primary] water.'' Id.
    An examination of all of the waters in ``the watershed'' of ``the 
nearest [primary] water'' under the 2015 Rule therefore may have 
materially broadened the scope of aggregation that determines 
jurisdiction in a ``significant nexus'' inquiry for waters not 
categorically jurisdictional from the focus in the proposed rule on 
waters ``located sufficiently close together or sufficiently close to a 
`water of the United States' so that they can be evaluated as a single 
landscape unit.'' 79 FR 22263. The agencies in finalizing the rule 
viewed the scientific literature through a broader lens as ``the effect 
of landscape position on the strength of the connection to the nearest 
`water of the United States,' '' and that ``relevant factors 
influencing chemical connectivity include hydrologic connectivity . . . 
, surrounding land use and land cover, the landscape setting, and 
deposition of chemical constituents (e.g., acidic deposition).'' 80 FR 
37094. The agencies are concerned that this important change in the 
interpretation of ``similarly situated waters'' from the proposed 2015 
Rule and the 2008 Rapanos Guidance may not be explainable by the 
scientific literature, including the Connectivity Report \33\ cited 
throughout the preamble to the 2015 Rule, in light of the agencies' 
view at the time that ``[t]he scientific literature does not use the 
term `significant' as it is defined in a legal context.'' 80 FR 37062. 
The agencies solicit comment on whether the agencies' justification for 
the 2015 Rule's interpretation of ``similarly situated'' with reference 
to an entire watershed for purposes of waters not categorically 
jurisdictional relied on the scientific literature without due regard 
for the restraints imposed by the statute and case law, and whether 
this interpretation of Justice Kennedy's significant nexus standard is 
a reason, at a minimum because of the legal risk it

[[Page 32241]]

creates, to repeal the 2015 Rule. As discussed, the 2015 Rule included 
distance-based limitations that were not specified in the proposal. In 
light of this, the agencies also solicit comment on whether these 
distance-based limitations mitigated or affected the agencies' change 
in interpretation of similarly situated waters in the 2015 Rule.
---------------------------------------------------------------------------

    \33\ U.S. EPA. Connectivity of Streams and Wetlands to 
Downstream Waters: A Review and Synthesis of the Scientific Evidence 
(Jan. 2015) (EPA/600/R-14/475F).
---------------------------------------------------------------------------

    The agencies are also concerned that the 2015 Rule does not give 
sufficient effect to the term ``navigable'' in the CWA. See South 
Carolina v. Catawba Indian Tribe, 476 U.S. 498, 510 n.22 (1986) (``It 
is our duty to give effect, if possible, to every clause and word of a 
statute[.]'' (quoting United States v. Menasche, 348 U.S. 528, 538-39 
(1955)) (internal quotation marks omitted)). Justice Kennedy's 
concurring opinion in Rapanos, on which the 2015 Rule relied heavily 
for its basis, recognized the term ``navigable'' must have ``some 
importance'' and, if that word has any meaning, the CWA cannot be 
interpreted to ``permit federal regulation whenever wetlands lie along 
a ditch or drain, however remote and insubstantial, that eventually may 
flow into traditional navigable waters.'' Rapanos, 547 U.S. at 778-79 
(Kennedy, J., concurring in judgment). When interpreting the Rapanos 
decision and its application for determining the scope of CWA 
jurisdiction in 2008, the agencies wrote ``[p]rincipal considerations 
when evaluating significant nexus include the volume, duration, and 
frequency of the flow of water in the tributary and the proximity of 
the tributary to a traditional navigable water.'' \34\ The agencies are 
considering whether the 2015 Rule's definitions of ``tributary'' and 
``adjacent'' were so broad as to eliminate consideration of these 
factors in a manner consistent with Justice Kennedy's opinion and the 
CWA.
---------------------------------------------------------------------------

    \34\ Rapanos Guidance at 10.
---------------------------------------------------------------------------

    The 2015 Rule stated that the agencies assessed ``the significance 
of the nexus'' to navigable water ``in terms of the CWA's objective to 
`restore and maintain the chemical, physical, and biological integrity 
of the Nation's waters.' '' 80 FR 37056 (quoting 33 U.S.C. 1251(a)). 
Under the 2015 Rule, a significant nexus may be established by an 
individual water or by collectively considering ``similarly situated'' 
waters across a ``region,'' defined as ``the watershed that drains to 
the nearest [primary] water identified.'' Id. at 37106. The agencies 
are now concerned that this broad reliance on biological functions, 
such as the provision of life cycle dependent aquatic habitat, may not 
comport with the CWA and Justice Kennedy's statement in Rapanos that 
``environmental concerns provide no reason to disregard limits in the 
statutory text.'' See 547 U.S. at 778. In particular, the agencies are 
mindful that the Southern District of Georgia's preliminary injunction 
of the 2015 Rule was based in part on the court's holding that the 2015 
Rule likely is flawed for the same reason as the Migratory Bird Rule: 
``the WOTUS Rule asserts that, standing alone, a significant 
`biological effect'--including an effect on `life cycle dependent 
aquatic habitat[s]'--would place a water within the CWA's jurisdiction. 
Thus, this WOTUS Rule will likely fail for the same reason that the 
rule in SWANCC failed.'' Georgia, 2018 U.S. Dist. LEXIS 97223, at *18 
(quoting 33 CFR 328.3(c)(5)). The agencies solicit comment on whether 
the 2015 Rule is flawed in the same manner as the Migratory Bird Rule, 
including whether the 2015 Rule raises significant constitutional 
questions similar to the questions raised by the Migratory Bird Rule as 
discussed by the Supreme Court in SWANCC.
    Moreover, the 2015 Rule relied on a scientific literature review--
the Connectivity Report--to support exerting federal jurisdiction over 
certain waters based on nine enumerated functions. See 80 FR 37065 
(``the agencies interpret the scope of `waters of the United States' 
protected under the CWA based on the information and conclusions in the 
[Connectivity] Report''). The report notes that connectivity ``occur[s] 
on a continuum or gradient from highly connected to highly isolated,'' 
and ``[t]hese variations in the degree of connectivity are a critical 
consideration to the ecological integrity and sustainability of 
downstream waters.'' Id. at 37057. In its review of a draft version of 
the Connectivity Report, EPA's Science Advisory Board (``SAB'') noted, 
``[s]patial proximity is one important determinant of the magnitude, 
frequency and duration of connections between wetlands and streams that 
will ultimately influence the fluxes of water, materials and biota 
between wetlands and downstream waters.'' \35\ ``Wetlands that are 
situated alongside rivers and their tributaries are likely to be 
connected to those waters through the exchange of water, biota and 
chemicals. As the distance between a wetland and a flowing water system 
increases, these connections become less obvious.'' \36\ The 
Connectivity Report also recognizes that ``areas that are closer to 
rivers and streams have a higher probability of being connected than 
areas farther away.'' Connectivity Report at ES-4.
---------------------------------------------------------------------------

    \35\ Science Advisory Board, U.S. EPA. Review of the EPA Water 
Body Connectivity Report at 60 (Oct. 17, 2014).
    \36\ Id. at 55.
---------------------------------------------------------------------------

    Yet, the SAB observed that ``[t]he Report is a science, not policy, 
document that was written to summarize the current understanding of 
connectivity or isolation of streams and wetlands relative to large 
water bodies such as rivers, lakes, estuaries, and oceans.'' \37\ ``The 
SAB also recommended that the agencies clarify in the preamble to the 
final rule that `significant nexus' is a legal term, not a scientific 
one.'' 80 FR 37065. And in issuing the 2015 Rule, the agencies stated, 
``the science does not provide a precise point along the continuum at 
which waters provide only speculative or insubstantial functions to 
downstream waters.'' Id. at 37090.
---------------------------------------------------------------------------

    \37\ Id. at 2.
---------------------------------------------------------------------------

    The agencies now believe that they previously placed too much 
emphasis on the information and conclusions of the Connectivity Report 
when setting jurisdictional lines in the 2015 Rule, relying on its 
environmental conclusions in place of interpreting the statutory text 
and other indicia of Congressional intent to ensure that the agencies' 
regulations comport with their statutory authority to regulate. This is 
of particular concern to the agencies today with respect to the 
agencies' broad application of Justice Kennedy's phrase ``similarly 
situated lands. '' As discussed previously, the agencies took an 
expansive reading of this phrase, in part based on ``one of the main 
conclusions of the [Connectivity Report] . . . that the incremental 
contributions of individual streams and wetlands are cumulative across 
entire watersheds, and their effects on downstream waters should be 
evaluated within the context of other streams and wetlands in that 
watershed,'' see 80 FR 37066. Yet, Justice Kennedy observed in Rapanos 
that what constitutes a ``significant nexus'' to the waters of the 
United States is not a solely scientific question and that it cannot be 
determined by environmental effects alone. See, e.g., 547 U.S. at 777-
78 (noting that although ``[s]cientific evidence indicates that 
wetlands play a critical role in controlling and filtering runoff . . . 
environmental concerns provide no reason to disregard limits in the 
statutory text'' (citations omitted)). This includes how Congress' use 
of the term ``navigable'' in the CWA and how the policies embodied in 
section 101(b) should inform this analysis. Justice Kennedy wrote that 
``the Corps deems a

[[Page 32242]]

water a tributary if it feeds into a traditional navigable water (or a 
tributary thereof) and possesses an ordinary high-water mark,'' defined 
as a ``line on the shore established by the fluctuations of water and 
indicated by [certain] physical characteristics.'' Id. at 781. This 
``may well provide a reasonable measure of whether specific minor 
tributaries bear a sufficient nexus with other regulated waters to 
constitute `navigable waters' under the Act. Yet the breadth of this 
standard--which seems to leave wide room for regulation of drains, 
ditches, and streams remote from any navigable-in-fact water and 
carrying only minor volumes toward it--precludes its adoption as the 
determinative measure of whether adjacent wetlands are likely to play 
an important role in the integrity of an aquatic system comprising 
navigable waters as traditionally understood.'' Id. (emphasis added).
    The 2015 Rule, by contrast, asserts jurisdiction categorically over 
any tributary, including all ephemeral and intermittent streams that 
meet the rule's tributary definition, as well as all wetlands and other 
waters that are within certain specified distances from a broadly 
defined category of tributaries (e.g., all waters located within the 
100-year floodplain of a category (1) through (5) ``jurisdictional by 
rule'' water and not more than 1,500 feet from the ordinary high water 
mark of such water). According to the rule, tributaries are 
characterized by the presence of the physical indicators of a bed and 
banks and an ordinary high water mark and eventually contribute flow 
(directly or indirectly) to a traditional navigable water, interstate 
water, or territorial sea that may be a considerable distance away. See 
80 FR 37105. The 2015 Rule defined ``ordinary high water mark'' as 
``that line on the shore established by the fluctuations of water and 
indicated by physical characteristics such as a clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.'' Id. at 37106. The 2015 Rule did not require 
any assessment of flow, including volume, duration, or frequency, when 
defining the ``waters of the United States.'' Instead, the 2015 Rule 
concluded that it was reasonable to presume that ``[t]hese physical 
indicators demonstrate there is volume, frequency, and duration of flow 
sufficient to create a bed and banks and an ordinary high water mark, 
and thus to qualify as a tributary.'' Id. at 37105. The 2015 Rule thus 
covers ephemeral washes that flow only in response to infrequent 
precipitation events if they meet the definition of tributary. These 
results, particularly that adjacent waters, broadly defined, are 
categorically jurisdictional no matter how small or frequently flowing 
the tributary to which they are adjacent, is, at a minimum, in 
significant tension with Justice Kennedy's understanding of the term 
significant nexus as explained in Rapanos. See id. at 781-82 (``[I]n 
many cases wetlands adjacent to tributaries covered by [the Corps' 1986 
tributary] standard might appear little more related to navigable-in-
fact waters than were the isolated ponds held to fall beyond the Act's 
scope in SWANCC.'').
    The agencies are mindful that courts that have considered the 
merits of challenges to the 2015 Rule have similarly observed that the 
rule may conflict with Justice Kennedy's opinion in Rapanos, 
particularly the rule's definition of ``tributary.'' The District of 
North Dakota found that the definitions in the 2015 Rule raise 
``precisely the concern Justice Kennedy had in Rapanos, and indeed the 
general definition of tributary [in the 2015 Rule] is strikingly 
similar'' to the standard for tributaries that concerned Justice 
Kennedy in Rapanos. North Dakota, 127 F. Supp. 3d at 1056. The Southern 
District of Georgia also found that the 2015 Rule's definition of 
``tributary'' ``is similar to the one'' at issue in Rapanos, and that 
``it carries with it the same concern that Justice Kennedy had there.'' 
Georgia, 2018 U.S. Dist. LEXIS 97223, at *17. Likewise, the Sixth 
Circuit stated in response to petitioners' ``claim that the Rule's 
treatment of tributaries, `adjacent waters,' and waters having a 
`significant nexus' to navigable waters is at odds with the Supreme 
Court's ruling in Rapanos'' that ``[e]ven assuming, for present 
purposes, as the parties do, that Justice Kennedy's opinion in Rapanos 
represents the best instruction on the permissible parameters of 
`waters of the United States' as used in the Clean Water Act, it is far 
from clear that the new Rule's distance limitations are harmonious with 
the instruction.'' In re EPA, 803 F.3d at 807 & n.3 (noting that 
``[t]here are real questions regarding the collective meaning of the 
[Supreme] Court's fragmented opinions in Rapanos'').
    One example that illustrates this point is the ``seasonally ponded, 
abandoned gravel mining depressions'' specifically at issue in SWANCC, 
531 U.S. at 164, which the Supreme Court determined were 
``nonnavigable, isolated, intrastate waters,'' id. at 166-72, and not 
jurisdictional. These depressions are located within 4,000 feet of 
Poplar Creek, a tributary to the Fox River, and may have the ability to 
store runoff or contribute other ecological functions in the watershed. 
Thus, they would be subject to, and might satisfy, a significant nexus 
determination under the 2015 Rule's case-specific analysis. However, 
Justice Kennedy himself stated in Rapanos, which informed the 
significant nexus standard articulated in the rule, that, ``[b]ecause 
such a [significant] nexus was lacking with respect to isolated ponds, 
the [SWANCC] Court held the plain text of the statute did not permit'' 
the Corps to assert jurisdiction over them. 547 U.S. at 767. Other 
potential examples of the breadth of the significant nexus standard 
articulated in the 2015 Rule are provided below in the next section.
3. Concerns Regarding the 2015 Rule's Effect on the Scope of CWA 
Jurisdiction
    The agencies asserted in the preamble to the 2015 Rule that 
``State, tribal, and local governments have well-defined and 
longstanding relationships with the Federal government in implementing 
CWA programs and these relationships are not altered by the final 
rule.'' 80 FR 37054. The agencies further noted that ``[c]ompared to 
the current regulations and historic practice of making jurisdictional 
determinations, the scope of jurisdictional waters will decrease'' 
under the 2015 Rule. Id. at 37101. When compared to more recent 
practice, however, the agencies determined that the 2015 Rule would 
result ``in an estimated increase between 2.84 and 4.65 percent in 
positive jurisdictional determinations annually.'' Id. The agencies 
thus concluded that the 2015 Rule would ``result in a small overall 
increase in positive jurisdiction determinations compared to those made 
under the Rapanos Guidance'' and that the ``net effect'' of the 
regulatory changes would ``be marginal at most.'' Brief for Respondents 
at 32-33 & n.6, In re EPA, No. 15-3571 (6th Cir. Jan. 13, 2017). Since 
publication of the final rule, the agencies have received information 
about the impact of these changes, including through filings in 
litigation against the 2015 Rule and comments received in response to 
the July 27, 2017 NPRM. After further analysis and reconsideration of 
how the 2015 Rule is likely to impact jurisdictional determinations, 
including how the data on those impacts relate to the specific 
regulatory changes made in the 2015 Rule, the agencies are now 
considering whether the definitional changes in the 2015 Rule would 
have a more substantial impact on the scope of

[[Page 32243]]

jurisdictional determinations made pursuant to the CWA than 
acknowledged in the analysis for the rule and would thus impact the 
balance between federal, state, tribal, and local government in a way 
that gives inadequate consideration to the overarching Congressional 
policy to ``recognize, preserve, and protect the primary 
responsibilities and rights of States to prevent, reduce, and eliminate 
pollution'' and ``to plan the development and use . . . of land and 
water resources. . . .'' 33 U.S.C. 1251(b).
    Between the agencies' ``historic'' (i.e., 1986 regulations) and 
``recent'' practices of making jurisdictional determinations under the 
Rapanos Guidance, the Supreme Court held that the agencies' application 
of the 1986 regulation was overbroad in some important respects. See 
SWANCC, 531 U.S. at 174 (reversing and remanding the assertion of 
jurisdiction); Rapanos, 547 U.S. at 715 (vacating and remanding, for 
further analysis, the assertion of CWA jurisdiction). Throughout the 
rulemaking process for the 2015 Rule, the agencies stressed in public 
statements,\38\ fact sheets,\39\ blog posts,\40\ and before Congress 
\41\ that the rule would not significantly expand the jurisdictional 
reach of the CWA. Some commenters questioned the accuracy of these 
statements during the rulemaking process for the 2015 Rule and in 
response to the July 27, 2017 NPRM. The court in North Dakota 
questioned the scope of waters subject to the 2015 Rule, and based its 
preliminary injunction in principal part on those doubts, stating, for 
example, that ``the definition of tributary'' in the 2015 Rule 
``includes vast numbers of waters that are unlikely to have a nexus to 
navigable waters within any reasonable understanding of the term.'' 127 
F. Supp. 3d at 1056; see also In re EPA, 803 F.3d at 807 (finding that 
``it is far from clear that the new Rule's distance limitations are 
harmonious'' with Justice Kennedy's significant nexus test in Rapanos); 
Georgia, 2018 U.S. Dist. LEXIS 97223, at *17 (holding that the 2015 
Rule's ``tributary'' definition ``is similar to the one invalidated in 
Rapanos, and it carries with it the same concern that Justice Kennedy 
had there'').
---------------------------------------------------------------------------

    \38\ Addressing farmers in Missouri in July 2014, then-EPA 
Administrator Gina McCarthy stated that no additional CWA permits 
would be required under the proposed 2015 Rule. See: http://www.farmfutures.com/story-epas-mccarthy-ditch-myths-waters-rule-8-114845 (``The bottom line with this proposal is that if you weren't 
supposed to get a permit before, you don't need to get one now.'').
    \39\ U.S. EPA. Facts About the Waters of the U.S. Proposal at 4 
(July 1, 2014), available at https://www.regulations.gov/contentStreamer?documentId=EPA-HQ-OW-2011-0880-16357&attachmentNumber=38&contentType=pdf (``The proposed rule does 
not expand jurisdiction.'').
    \40\ U.S. EPA blog post entitled ``Setting the Record Straight 
on Waters of the US'' (June 30, 2014), available at https://blog.epa.gov/blog/2014/06/setting-the-record-straight-on-wous/ 
(``The proposed rule does not expand jurisdiction.'').
    \41\ In a hearing before the House Committee on Science, Space, 
and Technology entitled ``Navigating the Clean Water Act: Is Water 
Wet?'' (July 9, 2014), then-Deputy EPA Administrator Bob Perciasepe 
told the Committee that the agencies are not expanding the 
jurisdiction of the CWA. See https://science.house.gov/legislation/hearings/full-committee-hearing-navigating-clean-water-act-water-wet.
---------------------------------------------------------------------------

    Given the concerns raised by some commenters and the federal 
courts, the agencies have reviewed data previously relied upon to 
conclude that the 2015 Rule would have no or ``marginal at most'' 
impacts on jurisdictional determinations, Brief for Respondents at 32 
n.6, In re EPA, No. 15-3571 (6th Cir. Jan. 13, 2017), and are 
reconsidering the validity of this conclusion. The agencies solicit 
comment on whether the agencies appropriately characterized or 
estimated the potential scope of CWA jurisdiction that could change 
under the 2015 Rule, including whether the documents supporting the 
2015 Rule appropriately considered the data relevant to and were clear 
in that assessment.
    For example, the agencies relied upon an examination of the 
documents supporting the estimated 2.84 to 4.65 percent annual increase 
in positive approved jurisdictional determinations (AJDs) to conclude 
that the 2015 Rule would only ``result in a small overall increase in 
positive jurisdictional determinations compared to those made under the 
Rapanos Guidance.'' See Brief for Respondents at 32, In re EPA, No. 15-
3571 (6th Cir. Jan. 13, 2017). However, others have raised concerns 
that this information and other data show the 2015 Rule may have 
expanded jurisdiction more significantly, particularly with respect to 
so-called ``other waters'' that are not adjacent to navigable waters 
and their tributaries.
    In developing the 2015 Rule, the agencies examined records in the 
Corps' Operation and Maintenance Business Information Link, Regulatory 
Module (ORM2) database that documents jurisdictional determinations 
associated with various aquatic resource types, including an isolated 
waters category. ``The isolated waters category is used in the Corps' 
ORM2 database to represent intrastate, non-navigable waters; including 
wetlands, lakes, ponds, streams, and ditches, that lack a direct 
surface connection to other waterways. These waters are hereafter 
referred to as `ORM2 other waters.' '' \42\ To examine how assertion of 
jurisdiction could change under the 2015 Rule, the agencies reviewed 
ORM2 aquatic resource records from Fiscal Year (FY)13 and FY14 and 
placed them into three groups: Streams (ORM2 categories of 
traditionally navigable waters, relatively permanent waters, and non-
relatively permanent waters), wetlands adjacent to the stream category 
group, and other waters. Of the 160,087 records for FY13 and FY14, 
streams represented 65 percent of the total records available, wetlands 
represented 29 percent, and other waters represented 6 percent.
---------------------------------------------------------------------------

    \42\ 2015 Rule Economic Analysis at 7.
---------------------------------------------------------------------------

    From this baseline, the agencies assumed that 100 percent of the 
records classified as streams would meet the jurisdictional tests 
established in the final rule, and 100 percent of the records 
classified as adjacent wetlands would meet the definition of adjacent 
in the final rule. These assumptions resulted in a relatively minor 
projected increase in positive jurisdictional determinations under the 
final rule for these categories: 99.3 to 100 percent for the streams 
category, and 98.9 to 100 percent for the wetlands category.
    The agencies also performed a detailed analysis of the other waters 
category to determine whether jurisdiction might change for those 
waters under the final rule. In total, ``these files represented over 
782 individual waters in 32 states.'' \43\
---------------------------------------------------------------------------

    \43\ 2015 Rule Economic Analysis at 9.
---------------------------------------------------------------------------

    Of the existing negative determinations for other waters, the 
agencies made the following estimates:
    <bullet> 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).
    <bullet> 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.
    <bullet> 1.7 percent of the other waters could become 
jurisdictional under category (8) of the 2015 Rule following a 
significant nexus analysis. See id. at 37105.
    In total, the agencies estimated that 34.5 percent of the other 
waters represented in the FY13 and FY14 ORM2 database could become 
jurisdictional under the 2015 Rule after

[[Page 32244]]

having been declared not jurisdictional under the existing regulations 
and agency guidance. Thus, while the agencies acknowledged in the 2015 
Rule Economic Analysis that ``[f]ollowing the Supreme Court decisions 
in SWANCC (2001) and Rapanos (2006), the agencies no longer asserted 
CWA jurisdiction over isolated waters,'' the agencies estimated in the 
2015 Rule Economic Analysis that 34.5 percent of the other waters 
category could become jurisdictional under the 2015 Rule.\44\ By way of 
comparison, a similar analysis of this category of other waters 
performed in support of the proposed rule in 2014 (using FY09 and FY10 
data from the ORM2 database) estimated that 17 percent of the negative 
jurisdictional for other waters would become positive.\45\
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    \44\ 2015 Rule Economic Analysis at 5, 12.
    \45\ U.S. EPA and U.S. Army Corps of Engineers. Economic 
Analysis of Proposed Revised Definition of Waters of the United 
States at 12, Exhibit 3 (Mar. 2014) (Docket ID: EPA-HQ-OW-2011-0880-
0003), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-0003.
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    While the Economic Analysis for the 2015 Rule estimated that 34.5 
percent of negative jurisdictional determinations for other waters 
would become positive,\46\ the agencies nevertheless premised the 2015 
Rule on assertions that the ``scope of jurisdiction in this rule is 
narrower than that under the existing regulation,'' the scope of 
jurisdiction in the rule would result ``in an estimated increase 
between 2.84 and 4.65 percent in positive jurisdictional determinations 
annually'' based on existing practice, and that such impacts would be 
``small overall'' and ``marginal at most.'' See 80 FR 37054, 37101; 
Brief for Respondents at 32-33 & n.6, In re EPA, No. 15-3571 (6th Cir. 
Jan. 13, 2017). The agencies are examining these statements and how 
this data relates specifically to the regulatory changes made in the 
2015 Rule (as opposed to those provisions which already subjected many 
streams and wetlands to CWA jurisdiction). The agencies request comment 
on whether the projected increase for this category is most relevant to 
measuring the impacts of the 2015 Rule, whether the public had ample 
notice of the doubling of projected positive jurisdiction over the 
other waters category from the proposed to final rule, and whether the 
final rule could expand overall CWA positive jurisdictional 
determinations by a material amount inconsistent with the findings and 
conclusions that justified the 2015 Rule.
---------------------------------------------------------------------------

    \46\ 2015 Rule Economic Analysis at 13, Figure 2.
---------------------------------------------------------------------------

    In particular, the agencies seek comment on the conclusions that 
were based on the method that estimated a 2.84 to 4.65 percent increase 
in overall jurisdiction, including the use of a method whereby the 
increase in assertion of jurisdiction in a particular category of 
waters (e.g., streams, wetlands, and other waters) was proportionally 
applied based on the raw number of records in a category relative to 
the total number of records across all categories in the ORM2 database, 
notwithstanding whether the regulatory changes in the 2015 Rule did not 
materially impact those other categories. For example, of the 160,087 
records in the ORM2 database for FY13 and FY14, 103,591 were associated 
with the streams category, 46,781 were associated with the wetlands 
category, and 9,715 were related to the other waters category. Thus, 
although 34.5 percent of previously non-jurisdictional ``other waters'' 
would become jurisdictional under the 2015 Rule, the proportional 
method used in the 2015 Rule Economic Analysis resulted in only an 
estimated 2.09 percent increase in positive jurisdictional 
determinations for ``other waters'' relative to the total number of 
jurisdictional determinations considered.\47\
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    \47\ The following summarizes the methodology used to derive the 
low-end estimated increase in jurisdiction of 2.84 percent: Streams 
account for 103,591 of the 160,087 total records (64.709 percent of 
the total ORM2 records) and 100 percent of streams are assumed to be 
jurisdictional under the final rule compared to 99.3 percent under 
previous practice (100 percent minus 99.3 percent = 0.7 percent). 
The relative contribution of streams to the overall change in 
jurisdictional determinations is thus 64.709 percent multiplied by 
0.7 percent for a total of 0.45 percent. Wetlands account for 46,781 
of the 160,087 total records (29.222 percent of the total ORM2 
records) and 100 percent of wetlands are assumed to be 
jurisdictional under the final rule compared to 98.9 percent under 
previous practice (100 percent minus 98.9 percent = 1.1 percent). 
The relative contribution of wetlands to the overall estimated 
change in jurisdictional determinations is thus 29.222 percent 
multiplied by 1.1 percent for a total of 0.32 percent. Other waters 
account for 9,715 of the 160,087 total records (6.069 percent of the 
total ORM2 records) and 34.5 percent of other waters are assumed to 
be jurisdictional under the final rule compared to 0.0 percent under 
previous practice (34.5 percent minus 0.0 percent = 34.5 percent). 
The relative contribution of other waters to the overall estimated 
change in jurisdictional determinations is thus 6.069 percent 
multiplied by 34.5 percent for a total of 2.09 percent. The agencies 
then added the relative contribution to the overall estimated change 
in jurisdictional determinations for each category of waters (i.e., 
0.45 percent for streams, 0.32 percent for wetlands, and 2.09 
percent for other waters) to get a total projected change in 
positive jurisdictional determinations of 2.86 percent. The 
differences between this calculation and the reported 2.84 percent 
in the 2015 Rule Economic Analysis may be the result of rounding 
error.
---------------------------------------------------------------------------

    In addition, the record for the 2015 Rule includes a 57-page 
document entitled ``Supporting Documentation: Analysis of 
Jurisdictional Determinations for Economic Analysis and Rule,'' \48\ 
along with an accompanying 3,695 page document of approved 
jurisdictional determination (AJD) forms.\49\ This contains the 
agencies' assessment conducted in April 2015 of almost two hundred 
previously performed AJDs to help the agencies better understand how 
waters might change jurisdictional status based on the distance 
limitations included in the final 2015 Rule for adjacent and case-
specific waters (see 80 FR 37105), including where they might no longer 
be jurisdictional under the final rule. Certain examples included in 
the assessment suggest that the 2015 Rule could modify CWA jurisdiction 
over waters that were deemed not jurisdictional under the 1986 
regulatory framework and Supreme Court precedent. The agencies request 
comment on whether the examples illustrate the concerns expressed by 
the recent court decisions discussed above that the 2015 Rule may have 
exceeded the significant nexus standard articulated by Justice Kennedy 
in the Rapanos opinion and concerns expressed by certain commenters 
that the 2015 Rule may have created additional regulatory uncertainty 
over waters that were previously thought beyond the scope of CWA 
jurisdiction. The examples are intended to be illustrative, and are not 
intended to attempt to quantify or reassess previous estimates of CWA 
jurisdiction, as the agencies are not aware of any map or dataset that 
accurately or with any precision portrays CWA jurisdiction at any point 
in the history of this complex regulatory program.
---------------------------------------------------------------------------

    \48\ U.S. EPA. Supporting Documentation: Analysis of 
Jurisdictional Determinations for Economic Analysis and Rule (Docket 
ID: EPA-HQ-OW-2011-0880-20877), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20877.
    \49\ U.S. EPA and U.S. Army Corps of Engineers. Supporting 
Documentation: Jurisdictional Determinations (Docket ID: EPA-HQ-OW-
2011-0880-20876), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20876.
---------------------------------------------------------------------------

    In the first example, a property in Chesapeake, Virginia, was 
reviewed by the Corps' Norfolk District in early January 2014 and again 
in March 2015 and was determined not to contain jurisdictional wetlands 
because the wetlands on the property lacked a hydrological surface 
connection of any duration, frequency, or volume of flow to other 
jurisdictional waters. The Corps noted that the wetlands ``appear to be 
dependent upon groundwater for hydrology, and have no surface 
connections'' to nearby tributaries, the closest one of which was 
approximately 80 feet from the wetland. The agencies

[[Page 32245]]

later stated that the wetland features ``would be jurisdictional under 
the new rule'' because they are ``within 100-feet of a tributary'' and 
would thus meet the rule's definition of ``neighboring'' and, in turn, 
``adjacent.'' Further information regarding this AJD and property has 
been added to the docket for the NPRM and is identified as ``Case Study 
A--AJD Number NAO-2014-2269'' (see Support Document).
    In another example, the Corps' Buffalo District reviewed a small 
wetland approximately 583 feet away from the Johlin Ditch near Toledo, 
Ohio, which eventually leads north to Lake Erie. After conducting a 
field investigation in September 2014, the Corps determined that the 
wetlands were not jurisdictional because the ``wetlands are isolated 
and there is no surface water connections [sic] and the only potential 
jurisdiction would be the [Migratory Bird Rule],'' noting that the area 
previously would have been regulated under the Migratory Bird Rule 
prior to the Supreme Court's SWANCC decision. The agencies later stated 
that the wetlands would be jurisdictional under the 2015 Rule. Further 
information regarding this AJD and property has been added to the 
docket for the NPRM and is identified as ``Case Study B--AJD Number 
2004-001914'' (see Support Document).
    In another example, the Corps' Memphis District reviewed a borrow 
pit on a property in Mississippi County, Missouri, and concluded that 
the borrow pit did not contain jurisdictional wetlands. The project 
area was described in the AJD as follows:

    The borrow pit has been abandoned for some time. Vegetation 
consists mainly of black willow (Salix nigra) and poison ivy 
(Toxicodendron radicans). A site visit was conducted on 8 December 
2014. The borrow pit is bordered by agricultural land on three sides 
and County Road K on the western border. There are no surface water 
connections to other waters of the U.S. A sample was taken within 
the site and all three parameters for a wetland are present. The 
Soil Survey book for Cape Girardeau, Mississippi and Scott Counties 
Missouri, compiled in 1974 and 1975 from aerial photography 
indicates no drainage into or out of the project site. The area is 
an isolated wetland approximately 7.6 acres in size.

    The abandoned pit in this example was 2,184 feet from the nearest 
``tributary,'' a feature that itself appears to be a ditch in an 
agricultural field. The wetlands in the borrow pit were determined by 
the Corps to be isolated and non-jurisdictional ``with no substantial 
nexus to interstate (or foreign) commerce'' and on the basis that 
``prior to . . .`'SWANCC,' the review area would have been regulated 
based solely on the `Migratory Bird Rule.' '' A later review by the 
agencies, however, stated that these wetlands would be jurisdictional 
under the 2015 Rule. Further information regarding this property and 
associated AJD has been added to the docket for the NPRM and is 
identified as ``Case Study C--AJD Number MVM-2014-460'' (see Support 
Document).
    In another example, the Corps' New England District reviewed a 
``mowed wet meadow within a mowed hayfield'' in Greensboro, Vermont, in 
August 2012 and concluded the site did not contain jurisdictional 
wetlands. The AJD described the wetlands as ``surrounded on all sides 
by similar upland,'' ``500'-985' away'' from the nearest jurisdictional 
waters, and ``isolated intrastate waters with no outlet, no 
hydrological connection to the Lamoille River, no nexus to interstate 
commerce, and no significant nexus to the Lamoille River (located about 
1.7-1.8 miles southeast of the site).'' A later review by the agencies, 
however, stated the wetlands would be jurisdictional under the 2015 
Rule. Further information regarding this property and associated AJD 
has been added to the docket for the NPRM and is identified as ``Case 
Study D--AJD Number NAE-2012-1813'' (see Support Document).
    In another example, the Corps' Chicago District completed AJD 
number LRC-2015-31 for wetlands in agricultural fields in Kane County, 
Illinois, in January 2015. AJD Number LRC-2015-31 was completed using 
two separate AJD forms: One form for the features at the project site 
that were determined to be jurisdictional according to the Rapanos 
Guidance (``positive AJD form'') and a second form for the features at 
the site that the Corps determined were not jurisdictional under the 
Rapanos Guidance (``negative AJD form''). Only the positive AJD form 
was included in the docket in Supporting Documentation entitled, 
``Jurisdictional Determinations--Redacted.'' \50\ The negative AJD form 
is available on the Chicago District website.\51\
---------------------------------------------------------------------------

    \50\ Id. at 2082-83.
    \51\ Available at: http://www.lrc.usace.army.mil/Portals/36/docs/regulatory/jd/lrcnjd02-2015.pdf (page 1 and 2).
---------------------------------------------------------------------------

    Using a field determination and desk determinations, the Corps 
found on the AJD form that there were ``no `waters of the U.S.' within 
Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in 
the review area.'' The Corps described the project area in the AJD form 
as follows: ``Wetland A is a 1.37 acre high quality closed depressional 
isolated wetland. Wetlands B and C (0.08 ac and 0.15 ac) are isolated 
wetlands that formed over a failed drain tile and are over 1,200 feet 
away from the closest jurisdictional waterway.'' The AJD also notes, 
``Weland [sic] A and the area around Wetlands B and C were previously 
determined to be isolated in 2008. Wetland C is mapped as Prior 
Converted in a NRCS certified farmed wetland determination--other areas 
are mapped as not inventoried.'' Upon later reviewing the negative AJD, 
however, the agencies determined the wetlands would be ``now Yes JD'' 
under the 2015 Rule. Further information regarding this property and 
associated positive and negative AJDs has been added to the docket for 
the NPRM and is identified as ``Case Study E--AJD Number LRC-2015-31'' 
(see Support Document).
    In another example, the Corps' Pittsburgh District visited a 
property in Butler, Pennsylvania, in October 2014 and determined the 
site did not contain waters of the United States because the wetland 
was ``completely isolated and has no nexus to a TNW or interstate or 
foreign commerce.'' The Corps noted that the wetland would have been 
regulated based solely on the Migratory Bird Rule prior to the decision 
in SWANCC. Upon reviewing the AJD, the agencies later stated the 
wetland is ``[i]solated but would have flood storage function.'' The 
agencies' review notes that the wetland is 1,270 feet from the nearest 
relatively permanent water (RPW) or traditional navigable water (TNW). 
Given the wetland is within 4,000 feet of a tributary and the agencies 
have stated it possesses at least one of the nine functions relevant to 
the significant nexus evaluation, see 80 FR 37106 (i.e., retention and 
attenuation of flood waters), the wetland would be subject to a 
significant nexus evaluation under the 2015 Rule. It is unclear, 
however, whether the wetland and its flood storage function would 
contribute significantly to the chemical, physical, or biological 
integrity of the nearest category (1) through (3) water as required by 
the 2015 Rule to satisfy the significant nexus test. Further 
information regarding this property and associated AJD has been added 
to the docket for the NPRM and is identified as ``Case Study F--AJD 
Number LRP 2014-855'' (see Support Document).
    In addition to the projected increase in positive jurisdictional 
determinations and the above examples of expected JD changes, an 
examination of the documents supporting the estimated 2.84 to 4.65 
percent annual increase in positive AJDs raises concerns that the 2015 
Rule may have significantly expanded jurisdiction over tributaries in

[[Page 32246]]

certain States, particularly those in more arid parts of the country.
    As described previously, to assess how assertion of jurisdiction 
may change under the 2015 Rule, the agencies reviewed ORM2 aquatic 
resource records from FY13 and FY14 and placed the aquatic resources 
into three groups: Streams, wetlands adjacent to the stream category 
group, and other waters. With respect to the streams category, the 
agencies assumed that ``100 percent of the records classified as 
streams will meet the definition of tributary in the final rule,'' \52\ 
resulting in a relatively minor projected increase in positive 
jurisdictional determinations under the final rule for streams: 99.3 
percent to 100 percent, or a 0.7 percent increase.
---------------------------------------------------------------------------

    \52\ 2015 Rule Economic Analysis at 8.
---------------------------------------------------------------------------

    However, the agencies have reexamined the 57-page ``Supporting 
Documentation: Analysis of Jurisdictional Determinations for Economic 
Analysis and Rule'' and have questions regarding the minor projected 
increase in positive jurisdictional determinations over streams in some 
states. An untitled table on page 46 of the supporting document lists 
an analysis of a subset of streams and the number of those streams 
estimated to be non-jurisdictional by State in the FY13-FY14 ORM2 
records for the purpose of estimating stream mitigation costs 
associated with the 2015 Rule.\53\
---------------------------------------------------------------------------

    \53\ The table includes all states except Hawaii.
---------------------------------------------------------------------------

    Investigating the percent of streams estimated to be non-
jurisdictional on a State-by-State basis coupled with the 2015 Rule 
Economic Analysis's assumption that 100 percent of the stream 
jurisdictional determinations will be positive under the 2015 Rule 
could indicate that there may be a significant expansion of 
jurisdiction over tributaries in some States beyond current practice. 
For example, in the FY13-FY14 ORM2 records for Arizona, the table 
identifies 709 of 1,070 total streams (66.3 percent) were non-
jurisdictional. For Arkansas, the table identifies 116 of 213 total 
streams (54.5 percent) as non-jurisdictional. In South Dakota, North 
Dakota, Nevada, New Mexico, and Wyoming, 8.5 percent, 9.2 percent, 13.2 
percent, 16.7 percent, and 57.1 percent of streams in the FY13-FY14 
ORM2 database, respectively, were identified in the table as non-
jurisdictional. The agencies are concerned that because the 2015 Rule 
may assert jurisdiction over 100 percent of streams as the agencies 
assumed in the 2015 Rule Economic Analysis, certain States, 
particularly those in the arid West, would see significant expansions 
of federal jurisdiction over streams. The agencies solicit comment on 
whether such expansions conflict with the assumptions underlying and 
statements justifying the 2015 Rule, and if such expansions were 
consistent with the policy goals of section 101(b) of the CWA.
    Several questions were raised by commenters regarding whether the 
2015 Rule expanded CWA jurisdiction over intermittent and ephemeral 
streams, and whether the agencies accurately identified that potential 
expansion in the development of the 2015 Rule. Several commenters, for 
example, suggested that the amount of jurisdictional river and stream 
miles in the United States may increase from approximately 3.5 million 
miles to more than 8 million miles in response to the per se 
jurisdictional treatment of millions of miles of ephemeral and 
intermittent streams under the tributary definition.\54\ To frame their 
analysis, those commenters compared river and stream miles reported in 
recent CWA section 305(b) reports submitted by States to EPA, and 
transmitted by EPA to Congress, to the river and stream miles depicted 
in maps developed by the agencies and the USGS prior to the 2015 Rule's 
proposal.
---------------------------------------------------------------------------

    \54\ See comments submitted by Arizona Department of 
Environmental Quality et al. (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-
2011-0880-15096), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15096; comments submitted by CropLife 
America (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-14630), 
available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-14630; comments submitted by American Foundry Society (Nov. 14, 
2014) (Docket ID: EPA-HQ-OW-2011-0880-15148), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15148; comments 
submitted by U.S. Chamber of Commerce et al. (Nov. 12, 2014) (Docket 
ID: EPA-HQ-OW-2011-0880-14115), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-14115.
---------------------------------------------------------------------------

    Section 305(b)(1)(A) of the CWA directs each state to ``prepare and 
submit to the Administrator . . . biennially . . . a report which shall 
include . . . a description of the water quality of all navigable 
waters in such State during the preceding year. . . .'' 33 U.S.C. 
1315(b)(1)(A). Section 305(b)(2) additionally directs the Administrator 
to ``transmit such State reports, together with an analysis thereof, to 
Congress . . . .'' Id. at 1315(b)(2). Over the years, those reports to 
Congress have identified between 3.5 and 3.7 million river and stream 
miles nationwide (see Support Document). The agencies previously 
observed that this analysis may not be precise, because of concerns 
regarding the baseline for comparison and assumptions regarding which 
intermittent and ephemeral streams may be covered under the 2015 
Rule.\55\
---------------------------------------------------------------------------

    \55\ See U.S. EPA and U.S. Army Corps of Engineers. Clean Water 
Rule Response to Comments--Topic 8: Tributaries at 88-89, available 
at https://www.epa.gov/sites/production/files/2015-06/documents/cwr_response_to_comments_8_tributaries.pdf.
---------------------------------------------------------------------------

    The agencies are not aware of any national, regional, or state-
level map that identifies all ``waters of the United States'' and 
acknowledge that there are limitations associated with existing 
datasets. The agencies, however, developed a series of draft maps using 
the NHD identifying ``rivers and streams and tributaries and other 
water bodies'' in each State, which then-EPA Administrator Gina 
McCarthy mentioned at a March 27, 2014 hearing before the U.S. House of 
Representatives Appropriations Committee Subcommittee on Interior, 
Environment, and Related Agencies.\56\ The EPA provided a copy of those 
draft maps to Congress on July 28, 2014,\57\ and they remain available 
to the public on the U.S. House of Representatives Committee on 
Science, Space and Technology website.\58\ The draft maps identify a 
total of 8,086,742 river and stream miles across the 50 States (see 
Support Document).
---------------------------------------------------------------------------

    \56\ EPA Administrator Gina McCarthy testimony before the U.S. 
House of Representatives Appropriations Committee Subcommittee on 
Interior, Environment, and Related Agencies (March 27, 2014), 
available at https://www.c-span.org/video/?318438-1/fy2015-epa-budget.
    \57\ Letter from Nancy Stoner, Acting Asst. Administrator, U.S. 
EPA Office of Water, to Rep. Lamar Smith, Chairman, U.S. House of 
Representatives Committee on Science, Space, and Technology (July 
28, 2014), available at https://science.house.gov/sites/republicans.science.house.gov/files/documents/epa_releases_maps_letter.pdf.
    \58\ EPA State and National Maps of Waters and Wetlands, 
available at https://science.house.gov/epa-state-and-national-maps-waters-and-wetlands.
---------------------------------------------------------------------------

    Given the significant differences between the CWA section 305(b) 
reports and the draft NHD maps submitted to Congress, and the 
possibility that each may represent potential estimates for the 
relative jurisdictional scope of the 1986 regulations and practice 
compared to the 2015 Rule, several States have questioned whether the 
proposed definition of ``tributary'' for the 2015 Rule would expand 
federal jurisdiction over State water resources. Eight State 
departments of environmental quality, for example, stated in joint 
comments that ``comparing the `waters of the United States' reported by 
States to recent USGS maps released by the EPA shows a 131% increase in 
federal waters.'' \59\ Comments filed by the State

[[Page 32247]]

of Kansas on the proposed rule raised similar concerns and focused on 
the inclusion of ephemeral streams in the proposed definition of 
tributary: ``In Kansas we have identified approximately 31,000 miles of 
perennial and intermittent waters that have been treated as WOTUS for 
several decades. . . . As per the preamble to the Rule and EPA/ACOE 
statements, the additional 133,000 miles [of ephemeral streams] would 
result in a 460% increase in the number of Kansas waters presumed to be 
jurisdictional under the Rule.'' \60\ Kansas added that the State does 
``not believe ephemeral waters have always been considered de facto 
tributaries for CWA jurisdictional purposes.'' \61\ Referencing a 
statement made by then-EPA Administrator McCarthy in which she stated, 
``[u]nfortunately, 60 percent of our nation's streams and millions of 
acres of wetlands currently lack clear protection from pollution under 
the Clean Water Act,'' \62\ Kansas noted that ``if those 60 percent 
that `lack clear protection' are brought under the umbrella of the CWA, 
[there will be] a significantly larger expansion than estimated in the 
economic analysis for the Rule.'' \63\
---------------------------------------------------------------------------

    \59\ See comments submitted by Alabama Dept. of Environ. Mgmt., 
Arizona Dept. of Environ. Quality, Indiana Dept. of Environ. Mgmt., 
Kansas Dept. of Health and Environ., Louisiana Dept. of Environ. 
Quality, Mississippi Dept. of Environ. Quality, Oklahoma Dept. of 
Environ. Quality, and Wyoming Dept. of Environ. Quality (Nov. 14, 
2014) (Docket ID: EPA-HQ-OW-2011-0880-15096), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15096.
    \60\ See comments submitted by the State of Kansas at Appendix A 
(Oct. 23, 2014) (Docket ID: EPA-HQ-OW-2011-0880-16636), available at 
https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-16636.
    \61\ Id. (emphasis in original).
    \62\ See ``Clean Water Drives Economic Growth'' by Gina McCarthy 
(Sept. 29, 2014), available at http://www.huffingtonpost.com/gina-mccarthy/clean-water-act_b_5900734.html.
    \63\ See supra note 60.
---------------------------------------------------------------------------

    The agencies in 2015 suggested that a feature that flows very 
infrequently would not form the physical indicators required to meet 
the 2015 Rule's definitions of ``ordinary high water mark'' and 
``tributary.'' \64\ In response to comments questioning the agencies' 
characterization of the change in scope of jurisdiction under the 2015 
Rule, the agencies stated that the 2015 Rule was narrower in scope than 
the existing regulations and historical practice, and reiterated that 
an increase of approximately 3 percent represented the agencies' 
estimate of the increased positive jurisdictional determinations 
compared to recent practice.\65\ In the administrative record for the 
2015 Rule and in a brief filed with the Sixth Circuit (based on that 
record), the agencies asserted that the definition of ``waters of the 
United States'' historically has included ephemeral streams and that 
some federal court decisions after SWANCC upheld assertions of CWA 
jurisdiction over surface waters that have a hydrologic connection to 
and that form part of the tributary system of a traditional navigable 
water, including intermittent or ephemeral streams. 80 FR 37079; Brief 
for Respondents at 11, 62-64, In re EPA, No. 15-3571 (6th Cir. Jan. 13, 
2017).\66\ The agencies are requesting comment on whether these 
responses to these issues are adequate. While some ephemeral streams 
may have been jurisdictional after a case-specific analysis pursuant to 
the Rapanos Guidance,\67\ and while challenges to some of those 
determinations have been rejected by courts, the agencies are 
requesting public comment on whether these prior conclusions and 
assertions were correct.
---------------------------------------------------------------------------

    \64\ See, e.g., U.S. EPA and U.S. Army Corps of Engineers. Clean 
Water Rule Response to Comments--Topic 11: Cost/Benefits (Volume 2) 
at 223, available at https://www.epa.gov/sites/production/files/2015-06/documents/cwr_response_to_comments_11_econ_vol2.pdf.
    \65\ See, e.g., id. at 10-13, 17.
    \66\ See also U.S. EPA and Department of the Army. Technical 
Support Document for the Clean Water Rule: Definition of Waters of 
the United States at 28 (May 27, 2015), available at https://www.epa.gov/sites/production/files/2015-05/documents/technical_support_document_for_the_clean_water_rule_1.pdf.
    \67\ See Rapanos Guidance at 7 (`` `[R]elatively permanent' 
waters do not include ephemeral tributaries which flow only in 
response to precipitation and intermittent streams which do not 
typically flow year-round or have continuous flow at least 
seasonally. However, CWA jurisdiction over these waters will be 
evaluated under the significant nexus standard.'').
---------------------------------------------------------------------------

    Given the concerns expressed by three federal courts regarding the 
potential scope of the 2015 Rule and comments raised during the 2015 
rulemaking and submitted in response to the July 27, 2017 NPRM, the 
agencies are re-evaluating the 2015 Rule and the potential change in 
jurisdiction. While the agencies are not aware of any data that 
estimates with any reasonable certainty or predictability the exact 
baseline miles and area of waters covered by the 1986 regulations and 
preexisting agency practice or data that accurately forecasts of the 
additional waters subject to jurisdiction under the 2015 Rule, the 
agencies are examining whether the data and estimates used to support 
the 2015 Rule's conclusions that the rule would be narrower than 
preexisting regulations may not have supported those conclusions, and 
instead the 2015 Rule may have had more than a marginal impact on CWA 
jurisdictional determinations and may impact well-defined and 
longstanding relationships between the federal and State governments in 
implementing CWA programs. The agencies seek comment on this and other 
data that may be relevant to a proposed finding, and whether such a 
change in finding would, either independently or in conjunction with 
other factors, support the agencies' proposal to repeal the 2015 Rule.
4. Potential Impact on Federal-State Balance
    When promulgating the 2015 Rule, the agencies concluded and 
prominently stated that ``State, tribal, and local governments have 
well-defined and longstanding relationships with the Federal government 
in implementing CWA programs and these relationships are not altered by 
the final rule,'' 80 FR 37054. Indeed, it was ``the policy of the 
Congress to recognize, preserve, and protect the primary 
responsibilities and rights of States to prevent, reduce, and eliminate 
pollution, to plan the development and use (including restoration, 
preservation, and enhancement) of land and water resources, and to 
consult with the Administrator in the exercise of his authority under 
this Act.'' 33 U.S.C. 1251(b).
    In response to the agencies' July 27, 2017 NPRM, some commenters 
have suggested that the 2015 Rule--including, inter alia, elements of 
the final rule that commenters were not able to address during the 
comment period--may not effectively reflect the specific policy that 
Congress articulated in CWA section 101(b). The agencies are 
considering whether and are proposing to conclude that the 2015 Rule 
did not draw the appropriate line, for purposes of CWA jurisdiction, 
between waters subject to federal and State regulation, on the one 
hand, and waters subject to state regulation only, on the other. In 
comments submitted to the agencies in response to the July 27, 2017 
NPRM, many States, representatives of entities within many sectors of 
the regulated community, and numerous other commenters expressed 
concerns that the 2015 Rule permits federal encroachment upon the 
States' traditional and primary authority over land and water 
resources. Such commenters cite the Supreme Court's recognition that 
``Congress chose to `recognize, preserve, and protect the primary 
responsibilities and rights of states . . . to plan the development and 
use' '' of those resources in enacting the CWA rather than ``readjust 
the federal-state balance,'' SWANCC, 531 U.S. at 174 (quoting CWA 
section 101(b), 33 U.S.C. 1251(b)).

[[Page 32248]]

    Under the 2015 Rule, commenters have observed that the agencies 
asserted categorical jurisdiction over water features that may be 
wholly intrastate and physically remote from navigable-in-fact waters. 
Such waters ``adjacent'' to jurisdictional waters are deemed to meet 
the definition of ``waters of the United States'' under the 2015 Rule, 
so long as any portion of the water is located within 100 feet of the 
ordinary high water mark of a category (1) through (5) ``jurisdictional 
by rule'' water; within the 100-year floodplain of a category (1) 
through (5) ``jurisdictional by rule'' water but not more than 1,500 
feet from the ordinary high water mark of such water; or within 1,500 
feet of the high tide line of a primary water or the ordinary high 
water mark of the Great Lakes. 80 FR 37085-86, 37105. The agencies also 
established case-specific jurisdiction over water features generally at 
a greater distance, including waters (including seasonal or ephemeral 
waters) located within 4,000 feet of the high tide line or ordinary 
high water mark of a category (1) through (5) water. See 80 FR 37105. 
For such waters, ``the entire water is a water of the United States if 
a portion is located within the 100-year floodplain of a water 
identified in paragraphs (a)(1) through (3) . . . or within 4,000 feet 
of the high tide line or ordinary high water mark'' of a category (1) 
through (5) water.'' Id.
    The agencies are considering whether the 2015 Rule's coverage of 
waters based, in part, on their location within the 100-year floodplain 
of a jurisdictional water is consistent with the policy articulated in 
CWA section 101(b) that States should maintain primary responsibility 
over land and water resources. The agencies received many comments on 
the proposal to the 2015 Rule indicating that the potential breadth of 
this standard could conflict with other federal, State or local laws 
that regulate development within floodplains.\68\ In particular, 
certain local governments expressed concern that the floodplain element 
of the rule could conflict with local floodplain ordinances or 
otherwise complicate local land use planning and development.\69\ 
Though the agencies added a distance-based threshold to limit the use 
of the 100-year floodplain as a basis for categorical CWA jurisdiction 
with respect to adjacent waters, the agencies are concerned that the 
Rule's use of this standard, including its use as a basis for requiring 
a case-specific significant nexus determination, could nonetheless 
interfere with traditional state and local police power, as suggested 
by some of the comments received in 2014.\70\ Comments received in 
response to the July 27, 2017 NPRM also raise concerns about the use of 
the 100-year floodplain. Specifically, commenters expressed concern 
about the absence of suitable maps and about the accuracy of existing 
maps. Given these concerns, the agencies request comment on whether the 
2015 Rule's use of the 100-year floodplain as a factor to establish 
jurisdiction over adjacent waters and case-specific waters interferes 
with States' primary responsibilities over the planning and development 
of land and water resources in conflict with CWA section 101(b). The 
agencies also seek comment on to what extent the 100-year floodplain 
component of the 2015 Rule conflicts with other federal regulatory 
programs, and whether such a conflict impacts State and local 
governments.
---------------------------------------------------------------------------

    \68\ See, e.g., comments submitted by City of Chesapeake (Sept. 
9, 2014) (Docket ID: EPA-HQ-OW-2011-0880-9615), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-9615.
    \69\ See, e.g., comments submitted by National Association of 
Counties (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-15081), 
available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15081.
    \70\ See, e.g., comments submitted by Georgia Municipal 
Association (Nov. 13, 2014) (Docket ID: EPA-HQ-OW-2011-0880-14527), 
available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-14527; comments submitted by City of St. Petersburg (Nov. 13, 
2014) (Docket ID: EPA-HQ-OW-2011-0880-18897), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-18897.
---------------------------------------------------------------------------

    The agencies noted in 2015 ``that the vast majority of the nation's 
water features are located within 4,000 feet of a covered tributary, 
traditional navigable water, interstate water, or territorial sea.'' 
\71\ The agencies' broadening of certain key concepts and terms 
relative to the prior regulatory regime means that the agencies can 
potentially review the ``vast majority'' of water features in the 
country under the 2015 Rule, unless those features have been excluded 
from the definition. Similar concern was raised in response to the July 
27, 2017 NPRM, for example, by the Missouri Department of Natural 
Resources and Department of Agriculture.\72\ The agencies seek comment 
on that analysis and whether the 2015 Rule readjusts the federal-state 
balance in a manner contrary to the congressionally determined policy 
in CWA section 101(b). Indeed, when issuing a preliminary injunction of 
the 2015 Rule, the Southern District of Georgia held that ``The [2015] 
WOTUS Rule asserts jurisdiction over remote and intermittent waters 
without evidence that they have a nexus with any navigable-in-fact 
waters.'' Georgia, 2018 U.S. Dist. LEXIS 97223, at *19. The agencies 
thus solicit comment on whether the definitions in the 2015 Rule would 
subject wholly intrastate or physically remote waters or wetlands to 
CWA jurisdiction, either categorically or on a case-by-case basis, and 
request information about the number and scope of such waters of which 
commenters may be aware.\73\
---------------------------------------------------------------------------

    \71\ 2015 Rule Economic Analysis at 11.
    \72\ See comments submitted by the Missouri Department of 
Natural Resources and Department of Agriculture (Sept. 26, 2017) 
(Docket ID: EPA-HQ-OW-2017-0203-13869), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-13869 (``The 
broad definition of tributary and the inclusion of a three-quarter 
mile buffer around every tributary and impoundment, would have cast 
a very broad jurisdictional umbrella over the state; requiring 
significant nexus determinations on all but a very few number of 
waters.'').
    \73\ This includes whether the 2015 Rule is supported by a 
``clear and manifest'' statement under the CWA to change the scope 
of traditional state regulatory authority. See BFP v. Resolution 
Trust Corp., 511 U.S. 531, 544 (1994); see also Bond v. United 
States, 134 S. Ct. 2077, 2089-90 (2014); SWANCC, 531 U.S. at 172-74.
---------------------------------------------------------------------------

    Further, the agencies solicit comment about whether these, or any 
other, aspects of the 2015 Rule as finalized would, as either a de 
facto or de jure matter, alter federal-state relationships in the 
implementation of CWA programs and State regulation of State waters, 
and whether the 2015 Rule appropriately implements the Congressional 
policy of recognizing, preserving, and protecting the primary rights of 
states to plan the development and use of land and water resources. 
Because such findings would, if adopted by the agencies, negate a key 
finding underpinning the 2015 Rule, the agencies request comment on 
whether to repeal the 2015 Rule on this basis.
5. Additional Bases for Repealing the 2015 Rule That the Agencies Are 
Considering
    In addition to our proposed conclusions that the 2015 Rule failed 
to provide regulatory certainty and that it exceeded the agencies' 
authority under the CWA, the agencies are also considering several 
other supplemental bases for repealing the 2015 Rule. These are 
discussed below along with requests for public comment.
    Some commenters have suggested that the 2015 Rule may exceed 
Congress' power under the Commerce Clause. The Supreme Court in SWANCC 
found that, in enacting the CWA, Congress had in mind as its authority 
``its traditional jurisdiction over waters that were or had been 
navigable in fact or which could reasonably be so made.'' 531 U.S. at 
172. The Court went on to construe the CWA to avoid the significant 
constitutional

[[Page 32249]]

questions raised by the agencies' assertion that the `` `Migratory Bird 
Rule' falls within Congress' power to regulate intrastate activities 
that `substantially affect' interstate commerce.'' Id. at 173. The 
agencies are evaluating the concerns, reflected in certain comments 
received by the agencies, that many features that are categorically 
jurisdictional under the 2015 Rule, such as wetlands that fall within 
the distance thresholds of the definition of ``neighboring,'' test the 
limits of the scope of the Commerce Clause because they may not have 
the requisite effect on the channels of interstate commerce.\74\
---------------------------------------------------------------------------

    \74\ Though the agencies have previously said that the 2015 Rule 
is consistent with the Commerce Clause and the CWA, the agencies are 
in the process of considering whether it is more appropriate to draw 
a jurisdictional line that ensures that the agencies regulate well 
within our constitutional and statutory bounds.
---------------------------------------------------------------------------

    For example, according to certain litigants challenging the 2015 
Rule, the ``seasonally ponded, abandoned gravel mining depressions'' 
specifically at issue in SWANCC, 531 U.S. at 164, which the Supreme 
Court determined were ``nonnavigable, isolated, intrastate waters,'' 
id. at 166-72, might be subject to case-specific jurisdiction under the 
2015 Rule. The depressions appear to be located within 4,000 feet of 
Poplar Creek, a tributary to the Fox River, and may have the ability to 
store runoff or contribute other ecological functions in the watershed.
    The agencies request comment, including additional information, on 
whether the water features at issue in SWANCC or other similar water 
features could be deemed jurisdictional under the 2015 Rule, and 
whether such a determination is consistent with or otherwise well-
within the agencies' statutory authority, would be unreasonable or go 
beyond the scope of the CWA, and is consistent with Justice Kennedy's 
significant nexus test expounded in Rapanos wherein he stated, 
``[b]ecause such a [significant] nexus was lacking with respect to 
isolated ponds, the [SWANCC] Court held that the plain text of the 
statute did not permit'' the Corps to assert jurisdiction over them. 
See 547 U.S. at 767.
    The examples identified in Section II.C.3 above raise similar 
issues. The abandoned borrow pit, for example, discussed in Case Study 
C--AJD Number MVM-2014-460, was determined by the Corps in December 
2014 to be an isolated water located 2,184 feet from a relatively 
permanent body of water ``with no substantial nexus to interstate (or 
foreign) commerce'' (see Support Document), yet the agencies later 
stated the feature would be jurisdictional under the 2015 Rule. In 
addition, the wetlands at issue in Case Study B--AJD Number 2004-001914 
(see Support Document) described above in Section II.C.3 were located 
583 feet from the Johlin Ditch outside Toledo, Ohio, situated east of 
an existing medical building and west of an agricultural area. The 
wetlands were determined by the Corps to be isolated, lacking a surface 
connection to a water of the United States and a substantial nexus to 
interstate commerce. Those wetlands, however, were later stated by the 
agencies to be subject to CWA jurisdiction under the 2015 Rule. The 
agencies therefore solicit comment on whether the 2015 Rule would cover 
such wetlands and, if so, whether that would exceed the CWA's statutory 
limits. See, e.g., SWANCC, 531 U.S. at 171-72, 174 (``[W]e find nothing 
approaching a clear statement from Congress that it intended Sec.  
404(a) to reach an abandoned sand and gravel pit'' that is 
``isolated.'').
    Interested parties are encouraged to provide comment on whether the 
2015 Rule is consistent with the statutory text of the CWA and relevant 
Supreme Court precedent, the limits of federal power under the Commerce 
Clause as specifically exercised by Congress in enacting the CWA, and 
any applicable legal requirements that pertain to the scope of the 
agencies' authority to define the term ``waters of the United States.'' 
The agencies also solicit comment on any other issues that may be 
relevant to the agencies' consideration of whether to repeal the 2015 
Rule, such as whether any potential procedural deficiencies limited 
effective public participation in the development of the 2015 Rule.\75\
---------------------------------------------------------------------------

    \75\ See, e.g., Small Refiner Lead Phase-Down Task Force v. EPA, 
705 F.2d 506, 549 (DC Cir. 1983).
---------------------------------------------------------------------------

D. The Agencies' Next Steps

    In defining the term ``waters of the United States'' under the CWA, 
Congress gave the agencies broad discretion to articulate reasonable 
limits on the meaning of that term, consistent with the Act's text and 
its policies as set forth in CWA section 101. In light of the 
substantial litigation risk regarding waters covered under the 2015 
Rule, and based on the agencies' experience and expertise in applying 
the CWA, the agencies propose to repeal the 2015 Rule and put in place 
the prior regulation. This is based on the concerns articulated above 
and the agencies' concern that there may be significant disruption to 
the implementation of the Act and to the public, including regulated 
entities, if the 2015 Rule were vacated in part. The agencies therefore 
propose to exercise their discretion and policy judgment by repealing 
the 2015 Rule permanently and in its entirety because the agencies 
believe that this approach is the most appropriate means to remedy the 
deficiencies of the 2015 Rule identified above, address the litigation 
risk surrounding the 2015 Rule, and restore a regulatory process that 
has been in place for years.
    The agencies have considered other alternatives that could have the 
effect of addressing some of the potential deficiencies identified, 
including proposing revisions to specific elements of the 2015 Rule, 
issuing revised implementation guidance and implementation manuals, and 
proposing a further change to the February 6, 2020 applicability date 
of the 2015 Rule. The agencies are soliciting comments on whether any 
of these alternative approaches would fully address and ameliorate 
potential deficiencies in and litigation risk associated with the 2015 
Rule. Consistent with the President's Executive Order, the agencies are 
also evaluating options for revising the definition of ``waters of the 
United States.''
    The agencies are proposing to permanently repeal the 2015 Rule at 
this time, and are taking comment on whether this proposal is the best 
and most efficient approach to address the potential deficiencies 
identified in this notice and to provide the predictability and 
regulatory certainty that alternative approaches may not provide.

E. Effect of Repeal

    The 2015 Rule amended longstanding regulations contained in 
portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122, 
230, 232, 300, 302, and 401 by revising, removing, and re-designating 
certain paragraphs and definitions in those regulations. In this 
action, the agencies would repeal the 2015 Rule and restore the 
regulations in existence immediately prior to the 2015 Rule. As such, 
if the agencies finalize this proposal and repeal the 2015 Rule and 
thus repeal those amendments, the regulatory definitions of ``waters of 
the United States'' in effect would be those portions of 33 CFR part 
328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 
401 as they existed immediately prior to the 2015 Rule's amendments. 
See, e.g., API v. EPA, 883 F.3d 918, 923 (DC Cir. 2018) (regulatory 
criterion in effect immediately before enactment of criterion that was 
vacated by the court ``replaces the now-vacated'' criterion). Thus, if 
the agencies

[[Page 32250]]

determine that repeal of the 2015 Rule is appropriate, the agencies 
concurrently would recodify the prior regulation in the CFR, which 
would not have the effect of creating a regulatory vacuum, and the 
agencies need not consider the potential consequences of such a 
regulatory vacuum in light of this. If this proposed rule is finalized, 
the agencies propose to apply the prior definition until a new 
definition of CWA jurisdiction is finalized.
    The current regulatory scheme for determining CWA jurisdiction is 
``familiar, if imperfect,'' In re EPA, 803 F.3d at 808, and the 
agencies and regulated public have significant experience operating 
under the longstanding regulations that were replaced by the 2015 Rule. 
The agencies would continue to implement those regulations, as they 
have for many years, consistent with Supreme Court decisions and 
practice, other case law interpreting the rule, and informed by agency 
guidance documents. Apart from a roughly six-week period when the 2015 
Rule was in effect in 37 States, the agencies have continued to 
implement the preexisting regulatory definitions as a result of the 
court orders discussed in Section I.B. above, as well as the final rule 
adding an applicability date to the 2015 Rule (83 FR 5200, Feb. 6, 
2018). While the agencies acknowledge that the 1986 and 1988 
regulations have been criticized and their application has been 
narrowed by various legal decisions, including SWANCC and Rapanos, the 
longstanding nature of the regulatory framework and its track record of 
implementation makes it preferable until the agencies propose and 
finalize a replacement definition. The agencies believe that, until a 
new definition is completed, it is important to retain the status quo 
that has been implemented for many years rather than the 2015 Rule, 
which has been and continues to be mired in litigation.
    In other words, restoration of the prior regulatory text in the 
CFR, interpreted in a manner consistent with Supreme Court decisions, 
and informed by applicable agency guidance documents and longstanding 
practice, will ensure that the scope of CWA jurisdiction will be 
administered in the same manner as it is now; as it was during the 
Sixth Circuit's lengthy, nationwide stay of the 2015 Rule; and as it 
was for many years prior to the promulgation of the 2015 Rule. To be 
clear, the agencies are not proposing a new definition of ``waters of 
the United States'' in this specific rulemaking separate from the 
definition that existed immediately prior to the 2015 Rule. The 
agencies also are not proposing to take this action in order to fill a 
regulatory gap because no such gap exists today. See 83 FR 5200, 5204. 
Rather, the agencies are solely proposing to repeal the 2015 amendments 
to the above-referenced portions of the CFR and recodify the prior 
regulatory text as it existed immediately prior to the 2015 Rule's 
amendments.

III. Minimal Reliance Interests Implicated by a Repeal of the 2015 Rule

    More than 30,000 AJDs of individual aquatic resources and other 
features have been issued since August 28, 2015, the effective date of 
the 2015 Rule. However, less than two percent of the AJDs of individual 
aquatic resources were issued under the 2015 Rule provisions in the six 
weeks the rule was in effect in a portion of the country.\76\ The 2015 
Rule was in effect in only 37 States for about six weeks between the 
2015 Rule's effective date and the Sixth Circuit's October 9, 2015 
nationwide stay order, see In re EPA, 803 F.3d 804 (6th Cir. 2015), and 
only 540 AJDs for aquatic resources and other features were issued 
during that short window of time. The remainder of the AJDs issued 
since August 28, 2015, were issued under the regulations defining the 
term ``waters of the United States'' that were in effect immediately 
before the effective date of the 2015 Rule.
---------------------------------------------------------------------------

    \76\ See Clean Water Act Approved Jurisdictional Determinations, 
available at https://watersgeo.epa.gov/cwa/CWA-JDs, as of May 9, 
2018. The 2015 Rule was enjoined in 13 States by the U.S. District 
Court for the District of North Dakota and has never gone into 
effect in those States.
---------------------------------------------------------------------------

    ``Sudden and unexplained change, . . . or change that does not take 
account of legitimate reliance on prior [agency] interpretation, . . . 
may be arbitrary, capricious [or] an abuse of discretion[,] [b]ut if 
these pitfalls are avoided, change is not invalidating[.]'' Smiley v. 
Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996) (internal 
quotation marks and citations omitted). Therefore, in proposing to 
repeal the 2015 Rule, the agencies are considering any interests that 
may have developed in reliance on the 2015 Rule, as well as the 
potential harm to such reliance interests from repealing the Rule 
against the benefits. The agencies solicit comment on whether the AJDs 
that were issued under the 2015 Rule's brief tenure (and any ensuing 
reliance interests that were developed) would be adversely affected by 
the Rule's repeal. If the potential for such harm exists, the agencies 
also solicit comment on whether those harms outweigh the potential 
benefits of repealing the 2015 Rule.
    In staying the 2015 Rule nationwide, the Sixth Circuit found no 
indication ``that the integrity of the nation's waters will suffer 
imminent injury if the [2015 Rule] is not immediately implemented and 
enforced.'' In re EPA, 803 F.3d at 808. The Sixth Circuit wrote that 
the ``burden--potentially visited nationwide on governmental bodies, 
state and federal, as well as private parties--and the impact on the 
public in general, implicated by the Rule's effective redrawing of 
jurisdictional lines over certain of the nation's waters'' was of 
``greater concern.'' Id. As a result, the Sixth Circuit held that ``the 
sheer breadth of the ripple effects caused by the Rule's definitional 
changes counsels strongly in favor of maintaining the status quo for 
the time being.'' Id. For the reasons expounded in this notice and the 
NPRM, the agencies believe that any potential adverse reliance 
interests are outweighed by the benefits of the agencies' proposed 
action. The agencies therefore propose to repeal the 2015 Rule and 
request comment on that proposal.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review; Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review prior to the 
NPRM and again prior to issuance of the SNPRM. Any changes made in 
response to OMB recommendations have been documented in the docket.
    While economic analyses are informative in the rulemaking context, 
the agencies are not relying on the economic analysis performed 
pursuant to Executive Orders 12866 and 13563 and related procedural 
requirements as a basis for this proposed action. See, e.g., NAHB, 682 
F.3d at 1039-40 (noting that the quality of an agency's economic 
analysis can be tested under the APA if the ``agency decides to rely on 
a cost-benefit analysis as part of its rulemaking'').

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Cost

    This rule is expected to be an Executive Order 13771 deregulatory 
action. Details on the estimated cost savings of this proposed rule can 
be found in the economic analysis that was published together with the 
NPRM.

[[Page 32251]]

C. Paperwork Reduction Act

    This proposed rule does not impose any new information collection 
burdens under the Paperwork Reduction Act.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions.
    The proposed repeal of the 2015 Rule is a deregulatory action that 
would effectively maintain the status quo as the agencies are currently 
implementing it, and avoid the imposition of potentially significant 
adverse economic impacts on small entities in the future. Details on 
the estimated cost savings of this proposed rule can be found in the 
economic analysis that was published together with the NPRM. 
Accordingly, after considering the potential economic impacts of the 
proposed repeal action on small entities, we certify that this proposed 
action will not have a significant economic impact on a substantial 
number of small entities.

E. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), signed into law on March 22, 1995, an agency must prepare a 
budgetary impact statement to accompany any proposed or final rule that 
includes a federal mandate that may result in estimated cost to state, 
local, or tribal governments in the aggregate, or to the private 
sector, of $100 million or more. Under section 205 of the UMRA, the 
agency must select the most cost-effective and least burdensome 
alternative that achieves the objectives of the rule and is consistent 
with statutory requirements. Section 203 requires the agency to 
establish a plan for informing and advising any small governments that 
may be significantly or uniquely impacted by the rule. This proposed 
action does not contain any unfunded mandate as described in the UMRA, 
and does not significantly or uniquely affect small governments. The 
definition of ``waters of the United States'' applies broadly to CWA 
programs. The proposed action imposes no enforceable duty on any state, 
local, or tribal governments, or the private sector, and does not 
contain regulatory requirements that significantly or uniquely affect 
small governments.

F. Executive Order 13132: Federalism

    Executive Order 13132 requires the agencies to develop an 
accountable process to ensure ``meaningful and timely input by state 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implication'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, the agencies may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local government, or the 
agencies consult with state and local officials early in the process of 
developing the proposed regulation. The agencies also may not issue a 
regulation that has federalism implications and that preempts state law 
unless the agencies consult with state and local officials early in the 
process of developing the proposed regulation.
    This proposed rule will not have substantial direct effects on the 
states, on the relationship between the national government and states, 
or on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely proposes to repeal a rule that was in effect in only a portion 
of the country for a short period of time, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the CWA. The agencies are proposing to repeal the 2015 
Rule in part because the 2015 Rule may have impermissibly and 
materially affected the states and the distribution of power and 
responsibilities among the various levels of government and therefore 
likely should have been characterized as having federalism implications 
when promulgated in 2015. Thus, the requirements of section 6 of the 
Executive Order do not apply to this proposed rule because it returns 
the federal-state relationship to the status quo.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, Nov. 9, 2000), requires 
the agencies to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. This 
proposed rule will not have substantial direct effects on tribal 
governments, on the relationship between the federal government and 
Indian tribes, or on the distribution of power and responsibilities 
between the federal government and Indian tribes, because it merely 
preserves the status quo currently in effect today and in effect 
immediately before promulgation of the 2015 Rule. Thus, Executive Order 
13175 does not apply to this proposed rule. Consistent with E.O. 13175, 
however, the agencies have and will continue to consult with tribal 
officials, as appropriate, as part of any future rulemaking to define 
``waters of the United States.''

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, Apr. 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that an agency has reason to 
believe may have a disproportionate effect on children. If the 
regulatory action meets both criteria, the agency must evaluate the 
environmental health or safety effects of the planned rule on children, 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the agency. This proposed rule is not subject to Executive Order 
13045 because it does not involve decisions intended to mitigate 
environmental health or safety risks.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

[[Page 32252]]

J. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
of 1995 requires federal agencies to evaluate existing technical 
standards when developing a new regulation. The proposed rule does not 
involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This proposed rule maintains the legal status quo. The agencies 
therefore believe that this action does not have disproportionately 
high and adverse human health or environmental effects on minority, 
low-income populations, and/or indigenous peoples, as specified in 
Executive Order 12898 (59 FR 7629, Feb. 16, 1994).

List of Subjects

33 CFR Part 328

    Environmental protection, Administrative practice and procedure, 
Navigation (water), Water pollution control, Waterways.

40 CFR Part 110

    Environmental protection, Oil pollution, Reporting and 
recordkeeping requirements.

40 CFR Part 112

    Environmental protection, Oil pollution, Penalties, Reporting and 
recordkeeping requirements.

40 CFR Part 116

    Environmental protection, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

40 CFR Part 117

    Environmental protection, Hazardous substances, Penalties, 
Reporting and recordkeeping requirements, Water pollution control.

40 CFR Part 122

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

40 CFR Part 230

    Environmental protection, Water pollution control.

40 CFR Part 232

    Environmental protection, Intergovernmental relations, Water 
pollution control.

40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, 
Hazardous substances, Hazardous waste, Intergovernmental relations, 
Natural resources, Occupational safety and health, Oil pollution, 
Penalties, Reporting and recordkeeping requirements, Superfund, Water 
pollution control, Water supply.

40 CFR Part 302

    Environmental protection, Air pollution control, Chemicals, 
Hazardous substances, Hazardous waste, Intergovernmental relations, 
Natural resources, Reporting and recordkeeping requirements, Superfund, 
Water pollution control, Water supply.

40 CFR Part 401

    Environmental protection, Waste treatment and disposal, Water 
pollution control.

0
For the reasons stated herein, the agencies propose to amend 33 CFR 
part 328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232, 300, 302, 
and 401 of the Code of Federal Regulations to repeal the amendments 
that were promulgated in the 2015 Rule and reestablish the regulatory 
text that was in place immediately prior to promulgation of the 2015 
Rule.

    Dated: June 29, 2018.
E. Scott Pruitt,
Administrator, Environmental Protection Agency.
    Dated: June 29, 2018.
R.D. James,
Assistant Secretary of the Army (Civil Works).
[FR Doc. 2018-14679 Filed 7-11-18; 8:45 am]
 BILLING CODE 6560-50-P


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