Revised Definition of "Waters of the United States"
Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 Navigable Waters
Protection Rule (2020 NWPR)
See the Introduction to this Response to Comments Document for a discussion of the U.S. Environmental
Protection Agency and the U.S. Department of the Army's (hereinafter, the agencies ) comment response
process and organization of the eighteen sections.
3.0 Regulatory Regimes Prior to the 2020 NWPR 2
3.0.1 General Comments on Prior Regulatory Regimes 2
3.1 Pri -2015 Regulatory Regime 3
3.1.1 General 3
3.1.2 Support for the pre-2015 regulatory regime 5
3.1.3 Opposition to the pre-2015 regulatory regime 7
3.1.3.1 Concerns that the pre-2015 regulatory regime was insufficiently protective 7
3.1.3.2 Concerns that the pre-2015 regulatory regime was confusing 8
3.1.3.3 Concerns that the pre-2015 regulatory regime was too broad 10
3.1.3.4 Concerns that the pre-2015 regulations were inconsistent with the Clean Water Act and
Supreme Court precedent 11
3.2 2015 Clean Water Rule 11
3.2.1 Support for the 2015 Clean Water Rule 12
3.2.2 Opposition to the 2015 Clean Water Rule 13
3.3 2019 Repeal Rule 14
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
1
-------
3.0 Regulatory Regimes Prior to the 2020 NWPR
3.0.1 General Comments on Prior Regulatory Regimes
The agencies received multiple comments regarding the regulatory regimes governing the definition of
"waters of the United States" that were in place prior to the 2020 Navigable Waters Protection Rule
(NWPR), including the pre-2015 regulatory regime, the 2015 Clean Water Rule, and the 2019 Repeal
Rule. Many commenters expressed concern that the changes in the definition of "waters of the United
States" over time have contributed to regulatory uncertainty, particularly in the context of jurisdictional
determinations1 and permitting issues. Some of those commenters added that this uncertainty in the
definition of "waters of the United States" does not serve the public interest or promote protection of the
nation's waters. Several commenters stated that litigation over the agencies' recent rulemakings to revise
the definition of "waters of the United States" has resulted in uncertainty and confusion. One commenter
stated that states and tribes have had to repeatedly revisit their laws and programs to align with each new
definition of "waters of the United States" and that this in itself has led to confusion and uncertainty. This
commenter further asserted that the different definitions of "waters of the United States" that have been in
place since 2015 have had varying degrees of clarity. Another commenter stated that they did not support
any of the regulatory regimes prior to the 2020 NWPR.
Agencies' Response: The agencies acknowledge that the definition of "waters of the United
States" has changed multiple times since the Clean Water Act was enacted and that such
changes can contribute to regulatory uncertainty. The agencies also acknowledge that
litigation over rules revising the definition of "waters of the United States" has at times
contributed to regulatory uncertainty as well as confusion, especially where such litigation
has resulted in different regulatory regimes being in effect in different parts of the country.
The agencies took this context into account in exercising their authority to interpret "waters
of the United States" to mean the waters defined by the familiar 1986 regulations, with
amendments to reflect the agencies' construction of limitations on the scope of the "waters
of the United States" informed by the text of the relevant provisions of the Clean Water Act
and the statute as a whole, the scientific record, relevant Supreme Court precedent, and the
agencies' experience and technical expertise after more than 45 years of implementing the
longstanding pre-2015 regulations defining "waters of the United States." Through this
rulemaking process, the agencies have considered all public comments on the proposed rule,
including changes that improve the clarity, implementability, and durability of the
definition. The regulations established in this rule are founded on the familiar framework of
the 1986 regulations and are generally consistent with the pre-2015 regulatory regime. They
are fully consistent with the statute, informed by relevant Supreme Court decisions, and
reflect the record before the agencies, including the best available science, as well as the
agencies' expertise and experience implementing the pre-2015 regulatory regime. In
addition, the agencies find that the final rule increases clarity and implementability by
streamlining and restructuring the 1986 regulations and providing implementation
guidance informed by sound science, implementation tools, and other resources. Further,
1 For convenience. EPA decisions on jurisdiction are referred to as jurisdictional determinations throughout this
document, but such decisions are not "approved jurisdictional determinations" as defined and governed by the Corps
regulations at 33 CFR 331.2.
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
2
-------
because this rule is founded on a longstanding regulatory framework and reflects the
agencies' experience and expertise, as well as updates in implementation tools and
resources, the agencies find that the final rule is generally familiar to the public and
implementable. See Final Rule Preamble Section IV.A.4 for further discussion of the
agencies' finding that the final rule is both familiar and implementable.
The agencies acknowledge the comment indicating lack of support for regulatory regimes
prior to the 2020 NWPR. In developing the final rule, the agencies thoroughly considered
alternatives to this rule, including the 2020 NWPR, and have concluded that the final rule
best accomplishes the agencies' goals to promulgate a rule that advances the objective of the
Clean Water Act, is consistent with Supreme Court decisions, is informed by the best
available science, and promptly and durably restores vital protections to the nation's
waters. See Section IV.B.3 of the Preamble to the Final Rule and the agencies' response to
comments in Section 4 for further discussion of the agencies' grounds for concluding that
the 2020 NWPR is not a suitable alternative to the final rule.
3.1 Pre-2015 Regulatory Regime
3.1.1 General
Some commenters stated that the agencies are currently implementing the pre-2015 regulatory regime
following vacatur of the 2020 NWPR and that the proposed rule would, in essence, codify that regime.
Several commenters questioned the need for amending the pre-2015 regulatory framework in the
proposed rule, with a few commenters asserting that the proposed rule was unnecessary because the pre-
2015 regulatory regime is already being implemented. One of these commenters asserted that the need for
such revisions is unclear particularly because the agencies returned to the pre-2015 regulatory regime—
without making any changes—after repealing the 2015 Clean Water Rule and justified returning to that
regime in part by referencing the agencies' and regulated community's experience with that regulatory
framework.
Other commenters stated that while the agencies purport to be restoring the pre-2015 regulatory regime,
the proposed rule represents an expansion of federal jurisdiction over that regime, including because—as
some commenters allege—the proposed rule's approach to aggregation under the significant nexus
standard is broader than the approach to aggregation under the pre-2015 regulatory regime. Several of
these commenters claimed that the proposed rule is broader than the pre-2015 regulatory regime because,
according to the commenters, the agencies have taken a broader reading of Supreme Court precedent and
relevant agency guidance documents. Further, some commenters suggested that the agencies have failed
to explain how the proposed rule's changes to the pre-2015 regulations reflect developments in case law
or are supported by the agencies' record.
Agencies' Response: Following a federal district court decision vacating the 2020 NWPR on
August 30, 2021, the agencies halted implementation of the 2020 NWPR and began
interpreting "waters of the United States" consistent with the pre-2015 regulatory regime.
See Pascua Yaqui Tribe v. EPA, No. 20-00266 (D. Ariz. Aug. 30, 2021); U.S. EPA, Current
Implementation of Waters of the United States, https://www.epa.gov/wotus/current-
implementation-waters-united-states. While the final rule is founded on, and generally
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
3
-------
returns to, the longstanding and familiar pre-2015 regulatory regime, it does not implement
that regime unchanged. The final rule adds limitations to the scope of the definition of
"waters of the United States," employs a definition of whether waters "significantly affect"
paragraph (a)(1) waters that identifies the functions and factors to be evaluated as part of a
significant nexus analysis, adds exclusions for features that were generally considered non-
jurisdictional under the pre-2015 regulatory regime to the rule text, and, as explained in
Section IV.G of the Preamble to the Final Rule, incorporates advancements in the
implementation data, tools, and methods that have become available since the decision in
Rapanos v. United States, 547 U.S. 715 (2006) ("Rapanos"). These changes are intended to
improve upon the pre-2015 regulatory regime in part by promoting clarity and timely,
consistent jurisdictional determinations. See Final Rule Preamble Section IV.A for further
discussion of the need for revising the pre-2015 regulatory text.
Moreover, contrary to some commenters' assertions, the final rule does not represent an
expansion beyond the text of the pre-2015 regulations and is narrower in some respects
than the pre-2015 regulatory regime. As discussed in Section IV.C of the Preamble to the
Final Rule, the final rule narrows the scope of jurisdiction from the text of the 1986
regulations by replacing the broad Commerce Clause basis for jurisdiction over paragraph
(a)(5) waters with the narrower relatively permanent and significant nexus standards; by
eliminating jurisdiction over tributaries and adjacent wetlands based on their connection to
paragraph (a)(5) waters; and by explicitly excluding waters that were not expressly
excluded in the text of the 1986 regulations. See also Sections IV.A.3, IV.C.l, and IV.C.6.a
of the Preamble to the Final Rule, noting that because the final rule replaces the broad
Commerce Clause basis for jurisdiction under the 1986 regulations with the relatively
permanent and significant nexus standards (both of which require sufficient ties to a
paragraph (a)(1) water, with the significant nexus standard also requiring that waters
significantly affect paragraph (a)(1) waters), paragraph (a)(5) of the final rule is
substantially narrower than the 1986 regulations.
With respect to the scope of aggregation under the significant nexus standard, the agencies
have identified "in the region" for purposes of the significant nexus standard in the final
rule as the catchment of the tributary. This region (i.e., the catchment of the tributary) for
the vast majority of tributaries is smaller, and usually substantially smaller, than the region
identified by the watershed that drains to the nearest point of entry of a paragraph (a)(1)
water, which was the "region" used to implement the 2015 Clean Water Rule. While this
region is generally larger than the region assessed in the Rapanos Guidance2 under which
the agencies assessed the relevant reach of a tributary in combination with its adjacent
wetlands, the catchment is an easily identified and scientifically defensible unit for
identifying the scope of waters that together may have an effect on the chemical, physical,
or biological integrity of a particular traditional navigable water, the territorial seas, or an
interstate water.
2 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 and Carabell v. United States (June 5, 2007)
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
4
-------
3.1.2 Support for the pre-2015 regulatory regime
Many commenters expressed general support for the proposed rule on the grounds that it restores the
longstanding pre-2015 regulatory regime and is therefore familiar and provides clarity. One of these
commenters suggested that returning to the pre-2015 regulatory regime would reduce confusion that the
commenter claimed arose from implementing certain aspects of the 2020 NWPR, such as its "typical
year" analysis.
Many commenters also asserted that returning to the pre-2015 regulatory regime would protect the
nation's waters, including headwaters, headwater wetlands, and other unique wetland features, as well as
aquatic and wildlife habitat.
Some commenters who wrote in support of returning to the pre-2015 regulatory regime asserted that the
agencies should restore the pre-2015 regulations and guidance without any revisions to the regulatory
text, with some of these commenters suggesting that such revisions would impermissibly expand the
agencies' jurisdiction or lead to regulatory uncertainty. One of these commenters suggested that the pre-
2015 regulatory regime provided sufficient water quality protections and argued that the pre-2015
regulations should not be revised to require that waters meet the significant nexus standard or relatively
permanent standard because this would leave important waters unprotected. Another commenter
contended that the agencies should update the definition of "waters of the United States" only to reflect
current, longstanding practice under the SWANCC3 and Rapanos Guidance documents to ensure clarity,
particularly for water infrastructure construction and maintenance activities. In contrast, a commenter
expressing support for the pre-2015 regulatory regime argued that implementation of the agencies'
SWANCC Guidance and Rapanos Guidance nonetheless left categories of historically protected waters
unprotected due to the agencies' allegedly inconsistent application of the guidance over the years.
A few commenters stated that they supported returning to the pre-2015 regulatory regime as an interim
step prior to the agencies developing a subsequent rule, such as a rule based in science, to protect the
nation's waters. One commenter stated that while they support a return to the pre-2015 regulatory regime,
they do not view it as protective as the "science-based" 2015 Clean Water Rule, which they asserted
should be the basis for a subsequent rule.
Agencies' Response: The agencies agree with commenters' statements that the final rule is
familiar, provides clarity, and advances the objective of the Clean Water Act, in part
because it is founded on the 1986 regulations that underpin the longstanding pre-2015
regulatory regime and it builds on and is generally consistent with that regulatory regime.
Indeed, as discussed in Section IV.A.2.b of the Preamble to the Final Rule, the best available
science confirms that the 1986 regulations remain a reasonable foundation for a definition
of "waters of the United States" that furthers the water quality objective of the Clean Water
Act.
The agencies disagree, however, with the suggestion that the agencies adopt the pre-2015
regulations or pre-2015 regulatory regime unchanged. As discussed in the preamble to the
final rule, the agencies have revised the 1986 regulations to reflect the agencies'
determination of the statutory limits on the scope of "waters of the United States" informed
3 68 FR 1991, 1995 (January 15, 2003) ("SWANCC Guidance")
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
5
-------
by the text of the relevant provisions of the Clean Water Act and the statute as a whole, the
scientific record, relevant Supreme Court precedent, and the agencies' experience and
technical expertise after more than 45 years of implementing the longstanding pre-2015
regulations defining "waters of the United States." Additionally, as compared to the pre-
2015 regulations or the pre-2015 regulatory regime, the final rule reflects updates and
advances in implementation tools, resources, and scientific support, adds exclusions for
features that were generally considered non-jurisdictional under the pre-2015 regulatory
regime, and is streamlined and restructured for clarity. For further discussion of the
agencies' revisions to the pre-2015 regulatory text, see Final Rule Preamble Sections IV.A
and IV.C.
The agencies also disagree that updating the definition of "waters of the United States" to
reflect longstanding practice under the SWANCC and Rapanos Guidance documents is a
sufficient alternative to the final rule. In this rule, the agencies are exercising their authority
to interpret "waters of the United States" to mean the waters defined by the familiar 1986
regulations, with amendments to reflect the agencies' determination of the statutory limits
on the scope of the "waters of the United States" informed by the text of the relevant
provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant
Supreme Court precedent, and the agencies' experience and technical expertise after more
than 45 years of implementing the longstanding pre-2015 regulations defining "waters of
the United States." Further, the SWANCC Guidance (otherwise referred to as a
coordination memorandum) is outdated, and the agencies have entered into a new joint
agency coordination memorandum to ensure the consistency and thoroughness of the
agencies' implementation of the final rule. See Final Rule Preamble Sections IV.C.l and
IV.C.6. The Rapanos Guidance is likewise no longer in effect. Thus, revising the definition
to reflect only the SWANCC and Rapanos Guidance documents is not a suitable or durable
alternative to the final rule. The agencies thoroughly considered these alternatives in
developing the final rule and have concluded that the final rule best accomplishes the
agencies' goals to promulgate a rule that advances the objective of the Clean Water Act, is
consistent with Supreme Court decisions, is informed by the best available science, and
promptly and durably restores vital protections to the nation's waters. See also the
agencies' response to comments in Section 12.3.2.4 (discussing the relationship between the
final rule and the Rapanos Guidance).
Additionally, the agencies acknowledge the commenter's concerns about consistent
implementation of the SWANCC Guidance and Rapanos Guidance in the pre-2015
regulatory regime. As explained in Section IV of the Preamble to the Final Rule, the final
rule includes clarifications meant to address concerns about timeliness and consistency of
jurisdictional determinations. For instance, the final rule includes a definition of
"significantly affect," provides additional guidance on applying the significant nexus
standard, and identifies improved and new implementation tools and resources.
Finally, in the preamble to the proposed rule, the agencies stated that they would consider
changes through a second rulemaking that they anticipated proposing in the future, which
would build upon the foundation of this rule. The agencies have concluded that this rule is
durable and implementable because it is founded on the familiar framework of the 1986
regulations, fully consistent with the statute, informed by relevant Supreme Court
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
6
-------
decisions, and reflects the record before the agencies, including consideration of the best
available science, as well as the agencies' expertise and experience implementing the pre-
2015 regulatory regime. The agencies may consider further refinements in a future rule to
address implementation or other issues that may arise.
3.1.3 Opposition to the pre-2015 regulatory regime
3.1.3.1 Concerns that the pre-2015 regulatory regime was insufficiently protective
Some commenters did not support returning to the pre-2015 regulatory regime because they contended it
was not protective of water resources. Some of these commenters suggested that the pre-2015 regulatory
regime is not protective because they do not view it as based in science. One commenter asserted that the
SWANCC Guidance did not provide adequate protection of "isolated" waterbodies important to wildlife
habitat and other benefits, and that the Rapanos Guidance did not provide adequate protection of
ephemeral and intermittent streams and adjacent wetlands. Another commenter stated that the agencies
should clarify that under the pre-2015 regulatory regime, a significant portion of ephemeral features in the
arid West were not jurisdictional and would continue not to be jurisdictional under the proposed rule.
Agencies' Response: As noted in the agencies' response to comments in Section 3.1.1,
though the final rule is generally comparable to the pre-2015 regulatory regime, the rule
also differs from the pre-2015 regulatory regime in several respects. To the extent the
commenters' criticism of the pre-2015 regulatory regime is applicable to the final rule, the
agencies disagree that the final rule is insufficiently protective and not based in science. As
discussed in Section IV.A.2 of the Preamble to the Final Rule, the agencies have concluded
that this rule is grounded in the Clean Water Act's objective to "restore and maintain the
chemical, physical, and biological integrity of the Nation's waters," and is informed by the
best available science on the functions provided by upstream waters, including wetlands, to
restore and maintain the integrity of paragraph (a)(1) waters. In particular, the final rule's
use of both the relatively permanent standard and the significant nexus standard gives
effect to the Act's text and environmentally protective objective as well as its limitations.
The significant nexus standard, as codified in the final rule, is protective precisely because it
is informed by the best available science: it is consistent with foundational scientific
understanding about aquatic ecosystems, acknowledging that upstream waters can
significantly affect the chemical, physical, and biological integrity of downstream
traditional navigable waters, the territorial seas, and interstate waters. Indeed, the Science
Report4 presents evidence of connections for various categories of waters, evaluated singly
or in combination, which affect downstream waters and the strength of those effects. The
connections and mechanisms discussed in the Science Report include transport of physical
materials and chemicals such as water, wood, sediment, nutrients, pesticides, and metals
(e.g., mercury); functions that streams, wetlands, and open waters perform, such as storing
and cleansing water; and movement of organisms. The agencies considered these
connections in developing the final rule. For these reasons, among others, the agencies find
that the significant nexus standard, under which waters are assessed alone or in
4 U.S. Environmental Protection Agency. 2015. Connectivity of Streams and Wetlands to Downstream Waters: A
Review and Synthesis of the Scientific Evidence (Final Report). EPA/600/R-14/475F. U.S. Environmental Protection
Agency, Washington, D.C. ("Science Report").
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
7
-------
combination for the functions they provide to paragraph (a)(1) waters, is consistent with the
foundational scientific framework and concepts of hydrology. For further discussion of how
the final rule implements a science-based framework to protect waterbodies, see Section
IV.A.3 of the Preamble to the Final Rule.
With respect to the SWANCC Guidance and Rapanos Guidance, and as explained in Final
Rule Preamble Section IV.C, the agencies are not using those documents for purposes of
implementing the final rule. The SWANCC Guidance will no longer be in effect in light of
the revised definition of "waters of the United States" in the final rule, and the coordination
aspects of that guidance are being replaced with a new coordination memorandum, as
described in Final Rule Preamble Section IV.C.6. The Rapanos Guidance is also no longer
in effect.
As to ephemeral streams, the final rule does not categorically include or exclude streams as
jurisdictional based on their flow regime. Streams that are tributaries, regardless of their
flow regime, will be assessed under the relatively permanent or significant nexus standard
per paragraph (a)(3) of this rule, and streams that are not tributaries will be assessed under
the relatively permanent or significant nexus standard per paragraph (a)(5) of this rule. See
Section III.A of the Technical Support Document and Section IV.C.4.b.i of the Preamble to
the Final Rule for more information on the agencies' rationale for the scope of tributaries
covered by this rule.
3.1.3.2 Concerns that the pre-2015 regulatory regime was confusing
Many commenters expressed concern that the pre-2015 regulatory regime, while familiar, is confusing
and inconsistent. Some of these commenters emphasized that the agencies acknowledged that the 2015
Clean Water Rule was promulgated in part because of uncertainty and inconsistent jurisdictional
determinations under the pre-2015 regulatory regime. Specific comments on the lack of clarity of the pre-
2015 regulatory regime included the following:
• One commenter stated they support the repeal of the 2020 NWPR but did not support the
proposed rule because they thought the pre-2015 regulatory regime was confusing. This
commenter claimed that even under the Rapanos Guidance, there was not enough clarity around
which waters were "waters of the United States," which, they contended, resulted in a decline in
inspections, investigations, and enforcement activities under the Clean Water Act.
• One commenter asserted that the SWANCC and Rapanos Guidance documents did not provide the
needed information and direction to agency staff or the public to facilitate consistent and timely
jurisdictional determinations. This commenter expressed concern that without appropriate
implementation guidance, nearly all waters and wetlands could be subject to case-by-case
determinations, making the need for such determinations unclear and unpredictable.
• One commenter stated that the pre-2015 regulatory regime was too much of a "one-size-fits-all"
for their state, and that it created uncertainty and delayed development without protecting the
environment.
Some commenters contended that the pre-2015 regulatory regime was problematic and unclear for the
agricultural community. One of these commenters asserted that the proposed rule would expand upon this
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
8
-------
regime in a manner that would create further uncertainty around land management practices such as
maintaining irrigation structures.
Agencies' Response: The agencies find that the clarifications in this rule, including the
addition of exclusions for features that were generally considered non-jurisdictional under
the pre-2015 regulatory regime, and the intervening advancements in implementation
resources, tools, and scientific support, address many of the concerns raised in the past
about consistency and timeliness of jurisdictional determinations under the Clean Water
Act. See Final Rule Preamble Sections IV.C.7 and IV.G. Indeed, as described in Final Rule
Preamble Section IV.A.4 and in Section 3.1 of the agencies' response to comments, the
agencies used their experience implementing the familiar pre-2015 regulatory regime to
clarify and refine how jurisdiction is determined in the final rule. For instance, the agencies
have added a definition of "significantly affect" for purposes of applying the significant
nexus standard. See Final Rule Preamble Section IV.C. Additionally, the agencies are
codifying the two familiar and longstanding exclusions from the definition of "waters of the
United States" for prior converted cropland and waste treatment systems, and adding
exclusions for features that were generally considered non-jurisdictional in practice under
the pre-2015 regulatory regime and each of the subsequent rules defining "waters of the
United States." Further, the scientific and technical information available to inform the
significant nexus analysis and identify waters that meet the relatively permanent standard
has also markedly improved over time and become more readily available since the agencies
first started implementing both standards. Section IV.G of the Preamble to the Final Rule
describes the improved and new resources and tools available to aid in jurisdictional
determinations.
The agencies acknowledge commenters' concerns that the SWANCC and Rapanos Guidance
documents were insufficiently clear or did not provide for consistent implementation of the
definition of "waters of the United States." As discussed in Final Rule Preamble Section IV,
the agencies have identified a variety of implementation guidance, tools, and methods
available for use. The agencies are not mandating specific data or tools to implement the
final rule. The agencies will assess jurisdiction based on the most applicable methods and
best available sources of information for the specific site under evaluation. As with any final
regulation, the agencies will consider developing additional tools to promote consistent
implementation of the final rule's approach. Nevertheless, the agencies conclude that the
final rule, together with the preamble and existing tools, provides sufficient clarity to allow
consistent implementation of the final rule.
The agencies also acknowledge that the final rule, like the pre-2015 regulatory regime, will
require case-specific analyses for certain jurisdictional decisions. Yet, as discussed in Final
Rule Preamble Section IV.A.3, the agencies find that fact-based standards for determining
Clean Water Act jurisdiction are appropriate and not unique to the definition of "waters of
the United States." The agencies have provided more clarity in this rule by adding
limitations to the scope of the definition to the rule text, adding a definition of "significantly
affect" that identifies the functions and factors to be evaluated as part of a significant nexus
analysis, adding exclusions to the rule, restructuring and streamlining the 1986 regulations,
and drawing on more than a decade of post -Rapanos implementation experience to provide
additional implementation guidance and resources. These improvements, taken together,
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
9
-------
substantially reduce any inefficiencies that may be presented by the final rule's case-specific
approach.
See also agencies' response to comments Section 3.1.1 (explaining that the final rule is
narrower than the pre-2015 regulatory regime in several respects) and Section 4 (regarding
the 2020 NWPR).
3.1.3.3 Concerns that the pre-2015 regulatory regime was too broad
Multiple commenters asserted that they did not support a return to the pre-2015 regulatory regime
because they claimed that it expanded federal jurisdiction. One commenter argued that the pre-2015
regulatory regime did not take into account the "human environment," and, in their opinion, resulted in
federal overreach that limited public access to waterways that "promote safety, health, welfare, and
economic viability." Another commenter argued that the agencies should revoke the SWANCC and
Rapanos Guidance documents and claimed that the Rapanos Guidance has led to the agencies asserting
jurisdiction over waters "that are not navigable-in-fact and not even remotely related to such waters, such
as Prairie Potholes and certain floodplains." This commenter asserted that the agencies should codify only
Justice Scalia's Rapanos plurality opinion in the final rule because the commenter believes that opinion
provides a test that could be consistently applied by federal and state regulators.
Agencies' Response: As discussed in the agencies' response to comments in Section 3.1.1,
although the final rule is generally comparable to the pre-2015 regulatory regime, the rule
also differs from and is narrower than the pre-2015 regulatory regime in several respects.
Additionally, as compared to the pre-2015 regulatory regime, the final rule reflects updates
and advances in implementation tools, resources, and scientific support, codifies exclusions
for features that were generally considered non-jurisdictional under the pre-2015
regulatory regime, and is streamlined and restructured for clarity.
With respect to the SWANCC Guidance and Rapanos Guidance, and as explained in Final
Rule Preamble Section IV.C, the agencies are not using those documents for purposes of
implementing the final rule. Upon the final rule's effective date, the coordination
procedures in the SWANCC Guidance will be replaced, as described in Final Rule Preamble
Section IV.C.6, and the Rapanos Guidance will no longer be in effect, as noted in Final Rule
Preamble Section IV.C.2.b.i.2.
Finally, the agencies disagree with commenters who stated that the pre-2015 regulatory
regime was an expansion of federal jurisdiction or that it resulted in federal overreach. The
pre-2015 regulatory regime represents a reduction in jurisdiction compared to the 1986
regulations, and similarly fewer waters will be subject to the Clean Water Act under this
rule than fall within the scope of the text of the 1986 regulations. See also the agencies'
response to comments in Section 3.1.3.4. The agencies also disagree with the suggestion that
the rule codify only the Rapanos plurality's opinion, which sets forth the relatively
permanent standard. As discussed in Final Rule Preamble Section IV.A.3, the agencies find
that the relatively permanent standard—while administratively useful—is insufficient on its
own to meet the objective of the Clean Water Act. To give effect to the Clean Water Act's
terms and environmentally protective objective, as well as its limitations, the final rule thus
provides for utilization of the relatively permanent standard and the significant nexus
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
10
-------
standard. Moreover, as explained in Section IV of the Preamble to the Final Rule, the final
rule includes clarifications meant to address concerns about timeliness and consistency of
jurisdictional determinations.
3.1.3.4 Concerns that the pre-2015 regulations were inconsistent with the Clean Water Act
and Supreme Court precedent
Finally, a few commenters contended that the pre-2015 regulations were inconsistent with the Clean
Water Act and the limits established by the Supreme Court.
Agencies' Response: The agencies' historic regulations, eventually promulgated and
referred to as the 1986 regulations, were based on the agencies' construction of the scope
of the Clean Water Act and their scientific and technical judgment about which waters
needed to be protected to restore and maintain the chemical, physical, and biological
integrity of traditional navigable waters, the territorial seas, and interstate waters. For
more information on the considerations behind the 1986 regulations, see Final Rule
Preamble Section IV.A.2.b. Though the final rule is founded on those regulations, the rule
differs from and is narrower than the pre-2015 regulations in several respects, as explained
in the agencies' response to comments in Section 3.1.1.
In addition, the agencies note that although the final rule is not based on an application of
the Marks test for interpreting Supreme Court decisions, the final rule has been updated to
reflect the agencies' interpretation of the limits on the scope of "waters of the United
States," which is informed by, among other things, relevant Supreme Court precedent. See
Section IV.A.5.b of the Preamble to the Final Rule.
3.2 2015 Clean Water Rule
Some commenters argued that the agencies are, in essence, repromulgating the 2015 Clean Water Rule
with the proposed rule. For instance, the commenters note, the proposed rule relies on the same scientific
support that formed the basis of the 2015 Clean Water Rule. Another commenter critiqued the proposed
rule for allegedly expanding Clean Water Act jurisdiction beyond the 2015 Clean Water Rule.
One commenter expressed support for Administrator Michael Regan's statements indicating that the
agencies would not be repromulgating the 2015 Clean Water Rule in the proposed rule. A different
commenter wrote in support of the agencies' decision not to repromulgate the 2015 Clean Water Rule
because—even though the commenter had supported the 2015 Clean Water Rule—they were concerned
about the significant amount of litigation surrounding it. Another commenter asserted that the 2015 Clean
Water Rule and 2020 NWPR provided more certainty as to which waters were jurisdictional than the
framework laid out in the proposed rule.
Agencies' Response: As discussed in Section IV.B.l of the Final Rule Preamble, the agencies
are not repromulgating the 2015 Clean Water Rule. For instance, the final rule, unlike the
2015 Clean Water Rule, is not based on categorical significant nexus determinations.
Instead, the final rule is founded on the longstanding and familiar 1986 regulations and
includes a framework for applying the relatively permanent and significant nexus standards
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
11
-------
to certain categories of waters in the rule. See Final Rule Preamble Section IV.B.l for a
discussion of the agencies' conclusion that the 2015 Clean Water Rule, while designed to
advance the objective of the Clean Water Act, is not the best alternative to meet the policy
goals of the agencies; see also Final Rule Preamble Section IV.B for the agencies'
consideration of alternatives to the final rule.
The agencies acknowledge concerns that litigation surrounding the 2015 Clean Water Rule
weighs against repromulgating that rule. In considering alternatives to the final rule, the
agencies assessed the procedural posture of the 2015 Clean Water Rule, which remains
subject to preliminary injunctions barring its implementation in roughly half the states.
After taking that litigation into account, the agencies concluded that re-adopting the 2015
Clean Water Rule would not meet the agencies' policy goal of providing durable protections
for the nation's waters. Accordingly, while the agencies recognize that aspects of the 2015
Clean Water Rule would provide greater certainty than the final rule, re-adopting the 2015
Clean Water Rule would not provide the regulatory certainty necessary to further the
objective of the Clean Water Act.
The agencies disagree that the 2020 NWPR provides more certainty than the final rule for
the reasons set forth in Section 4.2 of the agencies' response to comments and Final Rule
Preamble Section IV.B.3.
3.2.1 Support for the 2015 Clean Water Rule
Many commenters expressed support for the 2015 Clean Water Rule because they viewed it as informed
by science, specifically by the Science Report. One of these commenters noted that under the 2015 Clean
Water Rule, certain types of waters were categorically jurisdictional, which eliminated the need for
extensive case-specific jurisdictional determinations. This commenter suggested that the agencies
likewise consider including certain types of waters as categorically jurisdictional in the current
rulemaking, which the commenter believed would facilitate a "smooth and equitable application" of
Clean Water Act jurisdiction.
A tribal commenter stated that they supported the 2015 Clean Water Rule because, unlike the 2020
NWPR it provided federal jurisdiction over many of the tribe's waters, thereby allowing the tribe to
implement water quality standards, establish permit requirements, and receive funding to implement
water quality programs for those waters.
Agencies' Response: The agencies agree that the 2015 Clean Water Rule was informed by
science and designed to advance the objective of the Clean Water Act. However, the
agencies have determined that the 2015 Clean Water Rule is not the best alternative to meet
the goals of the agencies to promptly restore the protections of the longstanding regulations
and avoid current and future harm to aquatic resources, as informed by the best available
science and the agencies' determination of the statutory limits on the scope of the "waters of
the United States." While the final rule does contain some categories of waters that are
categorically jurisdictional (traditional navigable waters, the territorial seas, and interstate
waters; wetlands adjacent to the previous three categories of waters; and impoundments of
jurisdictional waters), unlike the 2015 Clean Water Rule, it does not determine that all
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
12
-------
tributaries and all adjacent waters are categorically jurisdictional for this and the
additional reasons stated in Final Rule Preamble Section IV.B.l.
The agencies acknowledge tribes' concerns about the jurisdictional effects of the 2020
NWPR, as noted in Section 4.1.5.6 of the agencies' response to comments and Final Rule
Preamble Section III.B.5, as well as tribes' comments around having insufficient resources
to develop or implement regulations more protective than the Clean Water Act.
3.2.2 Opposition to the 2015 Clean Water Rule
Many commenters asserted that they did not support the 2015 Clean Water Rule, including the
commenters' view that the rule expanded federal jurisdiction over waters they thought should not be
jurisdictional. Multiple commenters argued specifically that the 2015 Clean Water Rule expanded federal
jurisdiction in a manner that impacted land used for farming activities and claimed that the rule was
implemented inconsistently and thereby created uncertainty for and imposed a financial burden on the
agricultural community. A tribal commenter suggested that the 2015 Clean Water Rule impermissibly
expanded federal jurisdiction over tribal land and waters, created uncertainty and unpredictability
regarding the jurisdictional status of such waters, and "subject[ed] Tribal waters to state standards for
interstate waters," which led to "delays and increased costs for economic and industrial development."
Another commenter alleged that the 2015 Clean Water Rule "would have exposed nearly 97 percent of
Iowa land under expensive, cumbersome, and unworkable rules."
Some commenters contended that the purported jurisdictional overreach of the 2015 Clean Water Rule
was a result of the agencies' interpretation of the significant nexus standard. A number of these
commenters argued that the significant nexus standard, as expressed in the 2015 Clean Water Rule, used
vague and ambiguous terms and definitions that resulted in this expansion; these include the 2015 Clean
Water Rule's definitions of "tributary" and "neighboring," as well as new terms like "similarly situated"
that some commenters asserted subjected non-navigable, isolated wetlands to federal jurisdiction. Several
commenters expressed concern that these terms and definitions made the 2015 Clean Water Rule
complex, led to inconsistent application of the rule in the field, and sparked litigation over the rule across
the country. A few commenters suggested that the 2015 Clean Water Rule's approach to aggregation
under the significant nexus standard made it such that practically all waters could be subject to federal
jurisdiction.
Additionally, several commenters argued that the 2015 Clean Water Rule exceeded Congress's
Commerce Clause authority and was thus unconstitutional. One of these commenters asserted specifically
that the 2015 Clean Water Rule violated the limits of the Commerce Clause by subjecting waters that do
not have a substantial effect on interstate commerce to federal jurisdiction, citing United States v. Darby,
312 U.S. 100, 119-20 (1941) for the holding that Congress may regulate intrastate activity only where the
activity has a substantial effect on interstate commerce. In contrast, a different commenter asserted that
the 2015 Clean Water Rule wrongly excluded waters that had been historically protected and were within
the limits of Congress's Commerce Clause authority.
One commenter criticized the agencies' economic analysis of the 2015 Clean Water Rule, stating that it
did not include any discussion of potential "takings" of private property or the costs to the public and
industry when a permit is denied within areas newly determined to be jurisdictional under the rule. The
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
13
-------
commenter also expressed concerns that the 2015 Clean Water Rule did not provide sufficient deference
to state water protection laws or adequately consider the costs the rule could impose on state programs.
One commenter asserted that the agencies should incentivize and promote more "environmentally-
conscientious practices" to achieve the goals of the Clean Water Act, rather than develop "expansive"
regulations such as the 2015 Clean Water Rule, which "contained a number of new terms, which were
imprecise, broad, and largely left up to agency discretion," and so resulted in "a host of confusing
situations," and subjective determinations and "an unnecessary patchwork" of enforcement.
Agencies' Response: In developing the final rule, the agencies thoroughly considered
alternatives to this rule, including the 2015 Clean Water Rule, and have concluded that this
final rule best accomplishes the agencies' goals to promulgate a rule that advances the
objective of the Clean Water Act, is consistent with Supreme Court decisions, is informed
by the best available science, and promptly and durably restores vital protections to the
nation's waters. See Section IV.B.l of the Preamble to the Final Rule for further discussion
of the agencies' grounds for concluding that the 2015 Clean Water Rule is not a suitable
alternative to the final rule. See also the agencies' response to comments in Section 3.2.1.
Comments on the economic analysis for the 2015 Clean Water Rule are outside the scope of
this rulemaking. In addition, this rule concerns the definition of "waters of the United
States" for purposes of the Clean Water Act, so the promotion of "environmentally-
conscientious practices" to generally further the aims of the Act is outside the scope of this
rulemaking. The agencies find that promoting "environmentally-conscientious practices" is
not an appropriate or acceptable alternative to issuing a rule defining "waters of the United
States" given the significance of this term to the agencies' implementation and enforcement
of the Clean Water Act.
3.3 2019 Repeal Rule
The agencies received relatively few comments on the 2019 Repeal Rule. A few commenters expressed
support for the 2019 Repeal Rule, with one commenter specifically agreeing with the legal analysis in the
2019 Repeal Rule, particularly the agencies' statements around Clean Water Act section 101(b). One
commenter stated that the 2019 Repeal Rule "largely accomplished" what the agencies proposed in the
current rulemaking and is "now operative" after the vacatur of the 2020 NWPR. The commenter
suggested that the agencies thus need not proceed with the ongoing rulemaking and can instead wait until
after the Supreme Court issues a decision in the Sackett v. EPA matter.
Agencies' Response: In developing the final rule, the agencies thoroughly considered
alternatives to the proposed rule, including the 2019 Repeal Rule. Notably, the agencies'
reading of the Clean Water Act in the 2019 Repeal Rule is inconsistent with the agencies'
considered interpretation, at this time, of the Act. For this reason, among others, the
agencies have concluded that this final rule best accomplishes the agencies' goals to
promulgate a rule that advances the objective of the Clean Water Act, is consistent with
Supreme Court decisions, is informed by the best available science, and promptly and
durably restores vital protections to the nation's waters. See Section IV.B.2 of the Preamble
to the Final Rule for further discussion of the agencies' grounds for concluding that the
2019 Repeal Rule is not a suitable alternative to the final rule.
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
14
-------
As noted in Section 3.1.1 of the agencies' response to comments, after the 2020 NWPR was
vacated, the agencies began implementing the pre-2015 regulatory regime. Although the
2020 NWPR has been vacated, it is the text currently in the Code of Federal Regulations.
With respect to the Supreme Court's review of the Sackett v. EPA case, see the agencies'
response to comments in Section 2.6.
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 3 - Regulatory Regimes Prior to the 2020 NWPR
15
------- |