Revised Definition of "Waters of the United States"
Response to Comments Document
Section 5 - Rulemaking Process and Other Statutes' Requirements
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.
5.0 Rulemaking Process 2
5.0.1 General 2
5.0.2 Timing 5
5.0.3 Second Rulemaking 6
5.0.4 Infrastructure and Permitting Timelines 8
5.1 Compliance with the Administrative Procedure Act (APA) 10
5.1.1 Length of Comment Period 10
5.1.2 Rationale for the Proposed Rule 12
5.1.2.1 General comments on the rationale for the proposed rule 12
5.1.2.2 Rationale for replacing the 2020 NWPR due to potential environmental harm 15
5.1.3 Miscellaneous APA Issues 18
5.2 Executive Order 12866: Regulatory Planning and Review 19
5.3 Paperwork Reduction Act 21
5.4 Unfunded Mandates Reform Act 21
5.5 Executive Order 13132: Federalism 21
5.6 Executive Order 13175: Consultation and Coordination with Indian Tribal
Governments 27
5.7 Executive Order 13045: Protection of Children from Environmental Health and
Safety Risks 30
5.8 Executive Order 13211: Actions Concerning Regulations that Significantly
Affect Energy Supply, Distribution or Use 31
5.9 National Technology Transfer and Advancement Act 31
5.10 Executive Order 12898: Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations 31
5.11 Small Business Regulatory Enforcement Fairness Act (SBREFA)/Regulatory
Flexibility Act (RFA) 35
5.12 Stakeholder Engagement 38
5.13 National Environmental Policy Act (NEPA) 42
5.13.1 Proposed Rule's Compliance with NEPA 42
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5.13.2 Relationship between the Proposed Rule and NEPA
44
5.14 Endangered Species Act (ESA)
5.14.1 Proposed Rule's Compliance with the ESA
5.14.2 Relationship between the Proposed Rule and the ESA
45
45
47
5.0 Rulemaking Process
5.0.1
General
Many commenters expressed concerns about the agencies' compliance with requirements that the
commenters asserted are applicable to the proposed rule. These commenters addressed the agencies'
compliance with the Administrative Procedure Act (APA), certain executive orders, and/or other federal
laws in promulgating the proposed rule. Some commenters emphasized the importance of providing
opportunities for continual stakeholder engagement throughout the rulemaking process to ensure
compliance with applicable rulemaking requirements.
Multiple commenters expressed general concerns about how the proposed rule relates to the National
Environmental Policy Act (NEPA), the Endangered Species Act (ESA) (including section 7 consultation),
and other federal statutes. Many of these commenters suggested that a change in the scope of Clean Water
Act jurisdiction under the proposed rule would add to or duplicate regulatory requirements associated
with existing federal, state, and local laws. For example, a commenter raised concerns about section 404
permitting triggering review under the ESA.
Another commenter expressed concern about potential conflicts between the proposed rule and the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This commenter asserted that an expansion
of jurisdiction under the proposed rule could "adversely affect the timely use of EPA-registered
pesticides; expose pesticide users to unwarranted legal uncertainties; and interfere with well-established
state pesticide and water programs and policies" by subjecting operators and applicators of FIFRA-
registered pesticides to Clean Water Act requirements such as section 402 permitting. A few commenters
stated that the proposed rule would create confusing enforcement requirements under FIFRA because it
would blur requirements on pesticide label language and create additional instances in which pesticide
application requires a permit and/or compliance with National Pollutant Discharge Elimination System
(NPDES) performance requirements. One commenter stated that this could occur in areas that do not have
visible water or have shallow subsurface flows and hyporheic zones but are deemed jurisdictional, which
they stated would be burdensome for applicators and program inspectors.
One commenter asserted that the agencies failed to coordinate with the Fish and Wildlife Service (FWS)
under the Fish and Wildlife Coordination Act (FWCA). The commenter claimed that this lack of
coordination would likely result in an inadequately protective final rule for aquatic-dependent wildlife.
Another commenter argued that the agencies must comply with the direction in E.O. 13778 on "Restoring
the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States'
Rule" to develop a definition of "waters of the United States" that "promot[es] economic growth,
minimize [es] regulatory uncertainty, and show[s] due regard for the roles of the Congress and the States
under the Constitution," 82 Fed. Reg. 12,497 (Mar. 3, 2017). This commenter suggested that the agencies
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could satisfy this direction by receiving input from states and the regulated community on a revised
definition.
One commenter asserted that the agencies should incorporate a requirement from E.O. 13956 on
"Modernizing America's Water Resource Management and Water Infrastructure" into the proposed rule,
even though the executive order was revoked by the current administration. Specifically, the commenter
referenced incorporating into the proposed rule a provision in E.O. 13956 related to "developing state-of-
the-art geospatial data tools, including maps, through Federal, State, tribal, and territorial partnerships to
depict the scope of water regulated under the [Clean Water Act]" and asked that such information be
made publicly available as soon as possible to provide regulated entities with "valuable information to
determine regulatory requirements and permitting actions."
One commenter asserted that "to honor" the direction in E.O. 13990, the agencies must use their authority
to "advance environmental justice and climate change mitigation and resilience."
See the remainder of Section 5 for a more detailed discussion of comments on the rulemaking process and
related issues.
Agencies' Response: In this action, the agencies are finalizing a definition of "waters of the
United States" that is within the agencies' authority under the Act; that advances the
objective of the Clean Water Act; that establishes limitations that are consistent with the
statutory text, supported by the scientific record, and informed by relevant Supreme Court
decisions; and that is both familiar and implementable. See Final Rule Preamble Section
IV.A. The agencies fully considered the public comments submitted on the proposal and
have complied with all applicable laws, regulations, and other requirements in issuing this
rule.
This rule is largely based on and consistent with the agencies' regulatory structure and
implementation of the definition of "waters of the United States" for several decades. As a
result, the agencies disagree with the suggestion that this rulemaking would establish
requirements duplicative of other federal or state laws. Furthermore, the agencies disagree
with commenters who asserted that this rulemaking would create implementation
challenges under FIFRA. The final rule does not establish any new regulatory
requirements, nor does it affect any existing requirements that apply under other federal
statutes. Rather, this final agency action is a definitional rule that addresses the scope of the
federal Clean Water Act jurisdiction.
The agencies acknowledge that the definition of "waters of the United States" is relevant to
the scope of most federal programs to protect water quality under the Clean Water Act
including the section 404 permitting program, and that a change in the number of projects
that require a section 404 permit could potentially result in a change in the number of
actions subject to certain requirements under federal laws such as the ESA.
Nonetheless, the agencies disagree that the final rule generally represents an expansion
beyond the pre-2015 regulatory regime that the agencies are currently implementing;
rather, the agencies expect that there will be a slight and unquantifiable increase in waters
being found to be jurisdictional under the final rule in comparison to the pre-2015
regulatory regime. Thus, as discussed in Section V.A of the Preamble to the Final Rule, the
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final rule will establish a regime that is generally comparable to current practice and is
expected to generate de minimis costs and benefits as compared to the pre-2015 regulatory
regime.
The agencies also disagree with the commenter who suggested that this rulemaking is
subject to coordination or consultation requirements under the FWCA. The FWCA
requires that "whenever the waters of any stream or other body of water are proposed or
authorized to be impounded, diverted, the channel deepened, or the stream or other body of
water otherwise controlled or modified for any purpose whatever, including navigation and
drainage, by any department or agency of the United States, or by any public or private
agency under Federal permit or license, such department or agency first shall consult with
the United States Fish and Wildlife Service, Department of the Interior, and with the head
of the agency exercising administration over the wildlife resources of the particular State
wherein the impoundment, diversion, or other control facility is to be constructed.'1'1 16 U.S.C.
662(a) (emphasis added). The final rule does not propose or authorize the control or
modification of the waters of any stream or other body of water or the construction of an
impoundment, diversion, or other control facility. The final rule is thus not subject to the
consultation requirement under FWCA section 662. Moreover, for the reasons discussed
throughout Final Rule Preamble Section IV, the agencies disagree that the final rule will be
inadequately protective for aquatic-dependent species.
Further, the agencies disagree that this rulemaking must comply with Executive Order
13778, as that executive order was expressly rescinded pursuant to section 7 of Executive
Order 13990. See 86 FR 7037 (published January 25, 2021, signed January 20, 2021). As
discussed in Final Rule Preamble Section III.C, the agencies conducted substantial co-
regulator engagement and stakeholder outreach prior to developing the final rule, and these
activities included opportunities to receive input directly from states and the regulated
community.
Finally, the agencies acknowledge the request that the revised definition of "waters of the
United States" advance environmental justice and contribute to climate change mitigation
and resilience. While the agencies did not consider climate change in interpreting the scope
of the statutory term "waters of the United States," there are ways the agencies can consider
a changing climate under the significant nexus standard, but only to the extent it is relevant
to the evaluation of whether the subject waters significantly affect the chemical, physical, or
biological integrity of paragraph (a)(1) waters. See Final Rule Preamble Section IV.C.9.c.ii
for further discussion of how the agencies can consider a changing climate under the
significant nexus standard consistent with the best available science. Additionally, while
impacts on communities with environmental justice concerns are not a basis for
determining the scope of the definition of "waters of the United States," the agencies
recognize that the burdens of environmental pollution and climate change often fall
disproportionately on communities with environmental justice concerns (e.g., minority
(Indigenous peoples and/or people of color), and low-income populations, as specified in
Executive Order 12898.) The agencies believe that this action does not have
disproportionately high and adverse human health or environmental effects on Indigenous
peoples, people of color, and/or low-income populations The documentation for this decision
is contained in the Economic Analysis for the Final Rule.
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For the agencies' response to comments on specific rulemaking issues related to the
proposed rule, see the remainder of Section 5, including Section 5.1 (regarding compliance
with the APA), Section 5.12 (regarding stakeholder engagement), Section 5.13 (regarding
NEPA), and Section 5.14 (regarding the ESA). See also the agencies' response to comments
in Section 18.1 for a discussion of mapping resources.
5.0.2 Timing
Many commenters provided input regarding timing for the adoption of a final rule. Several commenters
asserted that the agencies should act quickly to adopt a final rule. In contrast, one commenter urged the
agencies to take their time in finalizing the rulemaking. Specifically, this commenter recommended that
the agencies take time to define categories of waters that would be jurisdictional by rule (i.e.. waters that
would be categorically jurisdictional under the final rule) to address concerns regarding timeliness and
consistency with jurisdictional determinations in this rulemaking, rather than waiting to address those
concerns in a second rulemaking. Another commenter asserted that although the agencies have claimed
that the 2020 Navigable Waters Protection Rule (2020 NWPR) was threatening widespread
environmental harm, the commenter believes there is no urgency to justify proceeding along what the
commenter described as an "abbreviated rulemaking timeframe." A few commenters suggested that there
is no urgency to finalize the rule because the 2020 NWPR is no longer in effect following the Arizona and
New Mexico district court vacatur orders.
Agencies' Response: The agencies acknowledge commenters' recommendations regarding
the timing of promulgating the final rule and recognize that the 2020 NWPR has been
vacated. The agencies note, however, that although the 2020 NWPR has been vacated, it is
the text currently in the Code of Federal Regulations. The agencies disagree that the
rulemaking timeframe has been abbreviated, as all rulemaking requirements—including
full consideration of extensive public comment on the proposal—have been met. Rather,
the agencies conclude that issuing the final rule at this time 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 Final Rule Preamble
Section IV.B.3 for discussion of the agencies' finding that substantially fewer waters were
protected by the Clean Water Act under the 2020 NWPR compared to under previous rules
and practices.
The agencies also acknowledge the request that the agencies develop a rule at this time that
identifies certain types of waters as categorically jurisdictional rather than waiting to do so
in a second rulemaking. As an initial matter, the agencies note that, while they may consider
further refinements to the definition of "waters of the United States" in a later rule, a
potential second rulemaking would not necessarily identify more types of categorically
jurisdictional (or non-jurisdictional) waters. Rather, as discussed in Final Rule Preamble
Section IV.A.3.a.iii, the agencies have the discretion to consider defining waters as
jurisdictional on a categorical basis where scientifically and legally justified (for example in
this rule, paragraph (a)(1) waters and their adjacent wetlands) or on a case-specific, fact-
based approach (for example, in this rule, tributaries and their adjacent wetlands that meet
the relatively permanent standard or significant nexus standard). Although the need for
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case-specific analyses will continue under the final rule for certain jurisdictional
determinations, the agencies find that the clarifications in this rule, including the addition of
exclusions that codify longstanding practice, and review of the advancements in
implementation resources, tools, and scientific support address many of the concerns raised
in the past about timeliness and consistency of jurisdictional determinations under the
Clean Water Act. See also the agencies' response to comments on a potential second
rulemaking in Section 5.0.3.
5.0.3 Second Rulemaking
The agencies received many comments regarding a potential second rulemaking to revise the definition of
"waters of the United States."
Multiple commenters expressed general support for the agencies to develop a second rule that builds upon
the regulatory framework of the proposed rule and/or requested that the agencies proceed quickly to a
second rulemaking. With respect to a second rulemaking, several commenters suggested that the agencies
consider developing a rule that is rooted in science, more broadly protects the nation's waters, is more
durable than previous rules, provides for engagement with various stakeholders, and/or considers
environmental justice and climate change.
A few commenters contended that the proposed rule does not go far enough to protect waters, asserting
that a second rulemaking should establish a definition of "waters of the United States" that is more
protective of water resources than the proposed rule. One commenter suggested that a second rulemaking
would not be necessary if the agencies include clear direction on their interpretation of relevant Supreme
Court cases in the current rulemaking.
Several commenters asserted that the agencies should not proceed with a second rulemaking and provided
their reasoning.
• A few commenters claimed that it was unclear why a second rulemaking was needed.
• A commenter recommended that instead of proceeding with a second rulemaking, the agencies
should withdraw the proposed rule until the Supreme Court issues a ruling in Sackett v.
Environmental Protection Agency, 21-454 (''Sackett").1 The commenter further recommended
that the agencies focus on providing technical assistance and issuing timely permit decisions
under the 2020 NWPR.
• A commenter expressed opposition to the notion of the agencies conducting two rulemakings.
This commenter voiced their preference for a single rulemaking that includes the agencies' full
views on jurisdiction. The commenter claimed that this would provide certainty to the regulated
community and reduce costs of promulgating a rule.
• A commenter asserted that the agencies should reconsider the second rulemaking and instead
focus on improving engagement with the public and co-regulators to ensure the current
rulemaking "effectively accomplishes the goals of the [Act]."
• A commenter asserted that the agencies should prioritize working with states to develop a more
durable and flexible final rule before proceeding to a potential second rulemaking. The
1 Sackett v. Environmental Protection Agency, 8 F.4th 1075 (9th Cir. 2021), cert, granted, 142 S. Ct. 896 (Jan. 24,
2022) (No. 21-454)
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commenter recommended that during this time, the agencies could work on addressing the
distinct differences in hydrologic regimes across the country.
• A commenter asserted that a second rulemaking would cast doubt on the durability and stability
of the proposed "waters of the United States" definition.
Additionally, several commenters provided general input regarding a potential second rulemaking. A few
commenters asserted that the agencies should clarify what would be included in a second rulemaking,
including any potential limitations or expansions of federal jurisdiction, because they asserted that federal
jurisdiction is unclear and is creating regulatory uncertainty at this time. A commenter asserted that the
agencies should develop a second rulemaking that would not need to be revised given the effort required
for the first rulemaking. Another commenter recommended that if the agencies go forward with the
second rulemaking, the agencies should include a thorough explanation of specific goals they hope to
achieve when they issue the final rule. Another commenter asserted that the second rulemaking, rather
than the first rulemaking, should contain significant adjustments and regional guidance. A commenter
asserted that the fact that the agencies were considering a second rulemaking created uncertainty
regarding the value of the proposed rule. A commenter asserted that the agencies should not develop a
second rulemaking that introduces new concepts, standards, or requirements that go beyond the case law.
The commenter asserted that doing so would increase the probability of confusion, lawsuits, and changes
in the future and thereby harm the commenter's ability to plan for future projects.
Several commenters provided more specific recommendations regarding the scope of and process for a
second rulemaking.
• A few commenters provided input regarding how the second rulemaking should incorporate
relevant Supreme Court decisions. These commenters asserted that the second rulemaking should
incorporate relevant interpretations of Supreme Court decisions, but that the proposed rule should
not include any additional interpretation of those decisions.
• A commenter expressed concern that the proposed rule would leave wetlands, particularly in the
Southeast, unprotected and recommended that subsequent rulemaking include additional wetlands
and water types that satisfy the significant nexus standard as categorically jurisdictional.
• A commenter asserted that a subsequent rule should avoid determining jurisdiction of waters that
have a minimal impact on downstream foundational waters2, suggesting that doing so would
create additional regulatory burdens on the regulated community.
• A commenter indicated that the agencies would benefit from wider stakeholder consultation in
subsequent rulemaking efforts. This commenter also suggested that the agencies consider
alternative options in subsequent rulemaking.
• A commenter urged the agencies to more thoroughly consider how to fully respect the
sovereignty of tribes, fully meet their trust responsibilities to tribes, and ensure that tribal waters
are not at disproportionate risk of water pollution if they proceed with a second rulemaking.
2 In the proposed rule, the term "foundational waters" was used to refer to traditional navigable waters, the territorial
seas, and interstate waters. In this response to comments, the agencies will preserve the use of the term
"foundational waters" as used by commenters; however, responses will use "traditional navigable waters, the
territorial seas, and interstate waters" or "paragraph (a)(1) waters," as the final rule does not use the term
"foundational waters."
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• A few commenters suggested that if the agencies do move forward with the second rulemaking,
they should consider all case law, not just SWANCC3 and Rapanos,4 but also Riverside Bayview 5
and other relevant Clean Water Act cases.
• A commenter recommended that the agencies use the time between the first and second
rulemaking to work with states on an effective regional approach to develop a more durable and
flexible proposed rule. The commenter asserted that they believe substantial changes from one
administration to the next create uncertainty, inconsistencies, and indecision for states and the
regulated community.
• Another commenter requested that the agencies provide pre-rulemaking engagement before
issuing the second rulemaking so that states and regulatory agencies can provide input and work
with federal authorities on a lasting definition of "waters of the United States."
Additionally, multiple commenters provided input regarding timing for the development of a potential
second rulemaking after finalization of the proposed rule. Many of these commenters recommended that
the agencies move quickly to develop a second rulemaking, with some stating that a second rulemaking
should provide greater or more robust environmental protection and be based on the best available
science. A few commenters asserted that the agencies should then quickly proceed to developing a more
protective secondary rulemaking that is consistent with science and the law. A commenter urged the
agencies to promptly move to a second rulemaking and to define "waters of the United States" in a way
that would provide strong protections not only for the nation's waters, but also for its most vulnerable
communities. Another commenter expressed concern that the public comment period for and stakeholder
engagement around a potential second rulemaking would be rushed.
Agencies' Response: 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 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. See Final Rule Preamble Section IV.A. The agencies may
consider further refinements in a future rule to address implementation or other issues that
may arise. Comments on the content of any such future rule are outside the scope of this
rule.
For the agencies' response to comments on tribal consultation and coordination, see Section
5.6. For the agencies' response to comments on stakeholder engagement, see Section 5.12.
5.0.4 Infrastructure and Permitting Timelines
Many commenters addressed the potential effects of the proposed rule on infrastructure efforts. Some
commenters argued that the proposed rule could threaten infrastructure projects and/or investments, with
many of these commenters specifically mentioning the Biden Administration's goals, "Build Back
3 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC')
4 Rapanos v. United States, 547 U.S. 715 (2006) ("Rapanos")
5 United States v. Riverside Bayview Homes, 474 U.S. 121, 131-35 (1985)
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Better," and/or the Infrastructure Investment and Jobs Act (IIJA). These commenters generally expressed
support for the IJIA and other infrastructure efforts. Some of the commenters generally mentioned other
Biden Administration priorities, for example infrastructure priorities related to energy, climate, water, and
the environment. Many commenters asserted that unclear regulatory definitions that depend on case-by-
case analyses or overly expansive definitions would increase costs and make it more difficult to build
badly needed housing and infrastructure. The commenters asserted that this could undermine the
President's goal to improve resiliency of infrastructure and improve access to clean water, transportation,
and electricity for low-income communities. Some commenters stated that the proposed rule would make
it difficult for companies to meet the needs of their customers who depend on a supply of aggregate for
essential public works projects. Another commenter stated that the proposed rule would make it more
difficult to obtain permit coverage for mining projects essential to the Biden Administration's goals. A
few commenters stated that the agencies should develop a rule that provides for timely and cost-effective
investment in infrastructure, such as infrastructure needed to meet local water supply and treatment needs.
A commenter cited a 2002 study to support their argument that project delays can be substantial and may
be even larger if an influx of new projects is not offset by additional staff and processing infrastructure.
The commenter also stated that delays may be exacerbated by the subjectivity of the proposed rule in
jurisdictional determinations relative to the 2020 NWPR. The commenter stated that these impacts hinder
economic output and prevent businesses from operating at their full potential.
A commenter asserted that by codifying the One Federal Decision policy, the IIJA seeks to complete the
project review and approval process within two years (citing IIJA, Sec. 11301). The commenter stated
that the proposed rule would create a competing policy objective, ultimately triggering additional
permitting requirements, increasing time, and increasing costs. The commenter also stated that an increase
in individual permit applications could overwhelm federal agency staff and further exacerbate the delays
in permitting. The commenter asserted that these delays would be largely avoidable by leaving the 2020
NWPR in place.
In the context of the IIJA, another commenter argued that "returning to the longstanding definition of
'waters of the United States,' updated to reflect Supreme Court precedent, and then moving swiftly to
adopt a new rule that is rooted in science and more broadly protects the country's waterways, as Congress
intended, reinforces these historic investments in clean water."
A commenter expressed concern that the proposed rule would lead to more activities requiring individual
Clean Water Act permits. The commenter stated that aggregating features under the proposed rule's
significant nexus standard would result in some projects exceeding the maximum acreage limit to qualify
for use of a nationwide permit. The commenter further asserted that the need for more individual permits
would result in higher permitting costs and longer processing times, which the commenter suggested
could deter parties from obtaining permits, and thus lead to unlawful discharges and an accompanying
rise in enforcement actions and citizen suits. The commenter anticipated the need for additional
regulatory compliance under NEPA, the National Historic Preservation Act, ESA, and the Coastal Zone
Management Act. The commenter also argued that the apparent expanded jurisdiction could interfere with
development of green infrastructure because of an increased need for section 404 permits.
Agencies' Response: In this action, the agencies are finalizing a definition of "waters of the
United States" that is within the agencies' authority under the Act; that advances the
objective of the Clean Water Act; that establishes limitations that are consistent with the
statutory text, supported by the scientific record, and informed by relevant Supreme Court
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decisions; and that is both familiar and implementable. See Final Rule Preamble Section
IV.A. The agencies disagree that the final rule generally represents an expansion beyond the
pre-2015 regulatory regime; rather, the agencies expect that there will be a slight and
unquantifiable increase in waters being found to be jurisdictional under the final rule in
comparison to the pre-2015 regulatory regime. Indeed, as discussed in Section V.A of the
Preamble to the Final Rule, this final rule is generally comparable in scope to the pre-2015
regulatory regime that the agencies are currently implementing. As such, the agencies
disagree with commenters who asserted that the "broadened scope of jurisdiction" in the
proposed rule would lead to increased requirements under other federal or state laws.
The agencies disagree with commenters who asserted that the proposed rule would lead to
delays in infrastructure projects. 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 timeliness and consistency of jurisdictional determinations under the
Clean Water Act. See Final Rule Preamble Section IV.C.7 and IV.G.
The agencies further disagree with commenters who stated that the proposed rule would
result in an increase in individual permits due to the agencies' approach to aggregation
under the significant nexus standard. The agencies' approach to aggregation does not affect
the eligibility of subject water(s) for a nationwide permit. This is because the determination
of jurisdiction applies only to the subject waters located in the area of interest. The
determination does not apply to all of the waters that are aggregated as part of the
significant nexus analysis. See Final Rule Preamble Section IV.C.9 for additional discussion.
The agencies acknowledge commenters who expressed concern that the proposed rule
would result in increased permitting costs. The agencies acknowledge that there are indirect
costs—both monetary and temporal—associated with implementation of the final rule.
Indeed, there are indirect costs associated with implementation of all prior rules defining
"waters of the United States." As the final rule is very similar in scope to that of pre-2015
practice, there will be de minimis new indirect costs associated with the implementation of
the final rule. See also the agencies' response to comments in Section 17.
For the agencies' response to comments on NEPA and ESA, see Sections 5.13 and 5.14,
respectively.
5.1 Compliance with the Administrative Procedure Act (APA)
5.1.1 Length of Comment Period
Many commenters requested an extension to the public comment period. Multiple commenters asserted
that the agencies violated the APA by failing to provide the public with a meaningful opportunity to
comment on the proposed rule—including the economic analysis and technical support document for the
proposed rule—due to the length of time of the public comment period. Several of these commenters
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emphasized that the 2015 Clean Water Rule's comment period spanned more than 200 days. Further,
some commenters asserted that the COVID-19 pandemic necessitated an extension of the comment
period; that additional time to review the proposed rule would lead to improvements and significant
changes; and that the proposed rule is complex and would make substantial changes to the pre-2015
regulatory regime, thereby warranting additional time to review.
One commenter suggested that the agencies could not refuse to extend the proposed rule's comment
period on the grounds that it would "delay their ability to issue a temporary replacement rule" because the
2020 NWPR is no longer in effect. Another commenter suggested that the overlap between the proposed
rule's comment period and the timing of the regional roundtables limited commenters' ability to provide
meaningful input on the proposed rule. A different commenter asserted that the agencies should either
significantly extend the comment period or halt the comment period altogether until after the Supreme
Court issues a decision in the Sackett case.
Agencies' Response: The APA requires agencies to "give interested persons an opportunity
to participate in the rule making through submission of written data, views, or arguments
with or without opportunity for oral presentation." 5 U.S.C. § 553(c). The APA does not
specify a minimum number of days for accepting comments on a proposed rule. Agencies
must, however, provide the public with a "meaningful opportunity" to comment on a
proposed rule. Rural Cellular Ass'n v. FCC, 588 F.3d 1095,1101 (D.C. Cir. 2009). For the
reasons described below, the agencies satisfied the APA requirement to provide the public
with a meaningful opportunity to comment on the proposed rule.
As an initial matter, the agencies note that though the length of the comment period may be
a factor in determining whether the public was afforded a meaningful opportunity to
comment, it is not determinative. Nonetheless, the agencies provided a reasonable length of
time for interested parties to comment on the proposed rule. On December 7, 2021, the
agencies published the proposed rule in the Federal Register, 86 FR 69372, which initiated a
62-day public comment period that lasted through February 7, 2022. The proposed rule's
approximately 60-day public comment period is consistent with the 60-day public comment
period recommended in Executive Order 12866. Further, courts have routinely found that
comment periods of less than 60 days provide a meaningful opportunity to comment; as
such, the agencies find that this rulemaking's 60-day public comment period satisfies the
APA's requirements. See, e.g., Conn. Light & Power Co. v. Nuclear Reg. Comm'n, 673 F.2d
525, 534 (D.C. Cir. 1983); Nat'lLifeline Ass'n v. FCC, 915 F.3d 19, 34 (D.C. Cir. 2019)
("When substantial rule changes are proposed, a 30-day comment period is generally the
shortest time period sufficient for interested persons to meaningfully review a proposed rule
and provide informed comment.").
Additionally, contrary to some commenters' assertions that the proposed rule was complex,
the proposed rule did not warrant a longer public comment period. Although the agencies
requested comment on numerous aspects of the proposed rule, these requests for comment
did not necessitate a longer comment period. Indeed, during the time allotted, numerous
individuals and entities submitted comments discussing the agencies' legal rationale and
myriad aspects of the proposed rule. Ultimately, the agencies received approximately
114,000 comments on the proposed rule, many of which analyzed a host of issues relevant to
the proposed rule, including: the legal basis for the proposed rule; the proposed rule's
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approach to categories of jurisdictional and non-jurisdictional features; the economic
analysis and technical support document for the proposed rule; and the need for a clear and
implementable rule that is easy for the public to understand.
The agencies also disagree that the proposed rule reflected substantial changes to the pre-
2015 regulatory regime. At this time, although the agencies expect that there will be a slight
and unquantifiable increase in waters found to be jurisdictional under the final rule in
comparison to the pre-2015 regulatory regime, the agencies have determined that this rule
will establish a regime that is generally comparable to current practice and is expected to
generate de minimis costs and benefits as compared to the pre-2015 regulatory regime.
With respect to the Supreme Court's review of the Sackett case, and how that case relates to
the timing of this rulemaking, see the agencies' response to comments in Section 2.6.1.
5.1.2 Rationale for the Proposed Rule
5.1.2.1 General comments on the rationale for the proposed rule
Some commenters stated that the agencies have failed to provide a reasoned explanation in support of the
proposed rule consistent with the Supreme Court's holding in FCC v. Fox Television Stations, Inc., 556
U.S. 502, 516 (2009) that agencies must engage in reasoned decisionmaking to satisfy the APA's
substantive requirements. In particular, many of these commenters asserted that the agencies failed to
provide a reasoned explanation in support of their decision to replace the 2020 NWPR, with a few
commenters objecting to the agencies' statements in the preamble to the proposed rule that the 2020
NWPR does not advance the Clean Water Act's objective and was difficult to implement. Additionally,
several commenters stated that the agencies' interpretation of the Clean Water Act and relevant Supreme
Court case law set forth in the proposed rule is flawed and so does not constitute a reasoned explanation
in support of the rule.
Several commenters asserted that the proposed rulemaking violated the APA as arbitrary and capricious
because, according to the commenters, the agencies failed in the proposed rule to adequately
acknowledge, characterize, or address the proposed rule's revisions to the previous regulations and
practice for various categories of aquatic resources and features, as well as the costs associated with those
proposed changes.
Another commenter criticized as flawed the agencies' finding in the proposed rule preamble that the 2020
NWPR did not adequately consider or address effects of degredation of upstream waters on downstream
waters because, per the commenter, the agencies "actually broadened the approach to jurisdiction between
proposal and final" for the 2020 NWPR and did so "specifically with an eye toward protecting
downstream waters." As support, the commenter referenced certain differences between the proposed and
final 2020 NWPR, including the agencies' decision in the final 2020 NWPR not to sever jurisdiction for
waters upstream of ephemeral features, which were categorically excluded under the 2020 NWPR.
The same commenter suggested that the agencies' finding that the 2020 NWPR is inconsistent with the
best available science does not provide a "sufficient ground for repealing the rule" because "[s]cience
does not establish where the constitutional or statutory line is between federal and state authority." This
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commenter also asserted that the agencies' concerns about implementation issues under the 2020 NWPR
are unfounded and expressed the view that "EPA staff objected to the [2020] NWPR because it required a
higher burden of proof to establish jurisdiction, which resulted in fewer water resources being considered
jurisdictional"—not because there was "uncertainty over what the [2020] NWPR meant."
Agencies' Response: Consistent with the APA and applicable case law, the agencies have
provided a reasoned explanation for this rulemaking, including a rational basis for
replacing the 2020 NWPR. The Supreme Court has found that "agencies are free to change
their existing policies as long as they provide a reasoned explanation for the change." See
Encino Motorcars v. Navarro, 579 U.S. 211, 221 (2016) (citations omitted). As reflected in the
preamble to the final rule and this response to comments document, the agencies have
carefully analyzed their statutory and constitutional authority—along with relevant case
law, legislative history, and the best available science—and have provided a detailed and
reasoned explanation in support of their decision to promulgate the final rule. This
reasoned explanation is reflected in but not limited to Final Rule Preamble Section IV,
which provides a thorough discussion of how the final rule is informed by the agencies'
consideration of the text of the relevant provisions of the Clean Water Act and the statute as
a whole, the scientific record, relevant Supreme Court decisions, and the agencies'
experience and technical expertise after more than 45 years of implementing the
longstanding pre-2015 regulatory regulations defining "waters of the United States."
The agencies also provided a reasoned explanation in support of the proposed rule and
disagree that the proposed rule's legal analysis was flawed. The agencies thoroughly
explained their interpretation of the Clean Water Act and the additional considerations that
informed the basis of the proposed rule. See, e.g., 86 FR 69385-69433. The agencies also
described each category of waters that would or would not be jurisdictional as "waters of
the United States" under the proposed rule, including supporting legal rationale, potential
approaches to implementation, and specific issues upon which the agencies sought
comment. See id. at 69385-69445. For each category of waters that would or would not be
jurisdictional, the agencies also explained how the proposed rule's approach compared to
the approach taken under prior rules and practice, including the 2020 NWPR. See id. The
agencies thus disagree that they failed to adequately acknowledge, characterize, or address
the proposed rule's revisions to the previous regulations and practice for various categories
of aquatic resources and features. Indeed, in response to the proposed rule, the agencies
received and considered many comments addressing these issues, including but not limited
to comments related to the legal basis for the proposed rule and the proposed rule's
approach to categories of jurisdictional and non-jurisdictional features. With respect to the
costs associated with the proposed rule's changes, see the Economic Analysis for the
Proposed Rule. See also the agencies' response to comments in Section 2, addressing specific
legal arguments raised in comments on the proposed rule.
The agencies disagree with the position that the proposed rule did not provide a rational
basis for replacing the 2020 NWPR. The preamble to the proposed rule clearly identified
and thoroughly explained the agencies' specific concerns with the 2020 NWPR and
provided a comprehensive discussion of the agencies' bases for finding that the 2020 NWPR
was not a suitable alternative to the proposed rule. See 86 FR 69407-69416. Specifically, the
agencies concluded that the 2020 NWPR was not a suitable alternative to the proposed rule
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"because it failed to advance the objective of the Act, including through its elimination of
the significant nexus standard and the absence of any alternative standard that would
protect the chemical, physical, and biological integrity of the nation's waters; it is
inconsistent with scientific information about protecting water quality; its implementation
proved confusing, difficult, and often infeasible; and it drastically reduced the numbers of
waters protected by the Clean Water Act, including waters that affect the integrity of
downstream traditional navigable waters, interstate waters, and the territorial seas." Id. at
69416. The agencies' statements in the preamble to the proposed rule regarding the 2020
NWPR were further supported by the information in the proposed rule's technical support
document. See, e.g., Technical Support Document for the Proposed Rule at Section II.B.
The agencies have also provided a reasoned explanation in support of replacing the 2020
NWPR in the final rule. As discussed in Section IV.B.3 of the Preamble to the Final Rule,
the agencies considered many factors and conducted their own evaluation of the 2020
NWPR through which they identified numerous deficiencies. Thus, contrary to some
commenters' contentions, the agencies' conclusion that the 2020 NWPR is not a suitable
alternative to the final rule is based on the collective reasons articulated in Final Rule
Preamble Section IV.B.3 and does not hinge on any one individual consideration discussed
therein.
The agencies acknowledge that the jurisdictional scope of the 2020 NWPR changed in some
ways between the proposed and final rule, including in ways that expanded the scope of the
2020 NWPR to cover certain upstream waters. Nonetheless, as explained in both the
proposed and final rule preambles for this rulemaking, the agencies find that the 2020
NWPR's rejection of the significant nexus standard while failing to adopt any alternative
standard for jurisdiction that adequately addresses the effects of degradation of upstream
waters on downstream waters, including paragraph (a)(1) waters, fails to advance the Clean
Water Act's objective. See 86 FR 69407-09; Final Rule Preamble Section IV.B.3.
The agencies also recognize that science alone cannot dictate where to draw the line defining
"waters of the United States," but science is critical to determining how to attain Congress's
plainly stated objective to restore and maintain the chemical, physical, and biological
integrity of the nation's waters and properly evaluating which waters are the subject of
federal jurisdiction due to their effects on paragraph (a)(1) waters. Only by relying upon
scientific principles to understand the way waters affect one another can the agencies know
whether they are achieving that objective. As discussed in the proposed and final rule
preambles, the 2020 NWPR's exclusion of major categories of waters from the protections
of the Clean Water Act, specifically in the definitions of "tributary" and "adjacent
wetlands," runs counter to the scientific record demonstrating how such waters can affect
the integrity of downstream waters, including paragraph (a)(1) waters. See 86 FR 69408-09;
Final Rule Preamble Section IV.B.3.b. The agencies find that the 2020 NWPR is thus not a
suitable alternative to the final rule because, among other reasons, it cannot advance the
objective of the Act given its lack of scientific support.
The agencies disagree that the concerns discussed in the proposed rule preamble regarding
implementation of the 2020 NWPR are unfounded. In the proposed rule preamble, the
agencies provided a thorough and clear explanation, informed by the agencies' experience
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implementing the 2020 NWPR for over a year, of specific implementation challenges
imposed by the 2020 NWPR. See 86 FR 69409-12. The agencies also received comments on
the proposed rule identifying similar concerns and challenges regarding implementation of
the 2020 NWPR. See Final Rule Preamble Section IV.B.3.C. Further, the agencies disagree
that there was no confusion or uncertainty regarding implementation of certain aspects of
the 2020 NWPR. For example, the 2020 NWPR's standard of inundation by flooding in a
typical year was not tied to any commonly calculated flood interval, such as flood
recurrence intervals, and the agencies are not aware of a tool capable of collecting the type
of inundation data the 2020 NWPR required. See also Final Rule Preamble Section IV.B.3.C
and the agencies' response to comments in Section 4.2 for additional discussion of these
implementation issues.
In sum, after carefully considering the 2020 NWPR in light of the text, objective, and
legislative history of the Clean Water Act, Supreme Court case law, the best available
scientific information, and the agencies' experience in implementing it for over a year, the
agencies do not find that the 2020 NWPR is a suitable alternative to this rule. See also
Technical Support Document Section II.B.iv and the agencies' response to comments in
Section 4 for additional discussion of the agencies' evaluation of the 2020 NWPR.
5.1.2.2 Rationale for replacing the 2020 NWPR due to potential environmental harm
One commenter argued that the agencies' decision to replace the 2020 NWPR based on data indicating
that the 2020 NWPR substantially reduced the scope of waters protected under the Clean Water Act and
thus posed a risk of environmental harm is inconsistent with the Supreme Court's holding in FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009) that agencies must provide a more detailed
justification when a change in policy "rests upon factual findings that contradict those which underlay its
prior policy." This commenter also argued that the agencies failed to provide a reasoned explanation
"supported by facts, rather than specious conjecture and supposition," to replace the 2020 NWPR.
The same commenter asserted that the agencies' claims of potential environmental harm from the 2020
NWPR are not supported by the record for the proposed rule. Referencing the agencies' assessment of
projects that would have required a Clean Water Act section 404 permit before the 2020 NWPR but no
longer did after the 2020 NWPR, the commenter stated that the agencies did not explain why the projects
would have required a section 404 permit but no longer did under the 2020 NWPR. The commenter also
stated that the agencies failed to "account for the status of individual projects," including whether projects
on sites involving aquatic resources that would have been jurisdictional prior to the 2020 NWPR "would
actually have been subject to any mitigation or permit restrictions." This commenter further asserted that
the agencies failed to prove that "any activities moved forward that otherwise would not have" while the
2020 NWPR was in effect, "much less that any concrete environmental harms or impacts on water quality
resulted."
Additionally, this commenter stated that the agencies implied in the proposed rule that replacing the 2020
NWPR is necessary because it may result in some states having fewer water resources covered under the
Clean Water Act than other states and argued that it "stands to reason" that different states may be
impacted by the 2020 NWPR, or any replacement rule, differently based on their unique geography. The
commenter also suggested that the agencies mischaracterized the 2020 NWPR's impact on states in the
arid West.
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Another commenter asserted that the agencies claim that the 2020 NWPR reduced Clean Water Act
protections over various waters is not a legitimate ground for rescission, arguing that this position creates
an arbitrary determination that any interpretation of the Clean Water Act that reduces federal jurisdiction
in any way, and for any reason, is illegal per se. In addition, the commenter stated that whether the extent
of federal jurisdiction is smaller or larger is not a factor that Congress intended the agencies to consider in
defining "waters of the United States."
Agencies' Response: The agencies disagree with the suggestion that the agencies' claims of
environmental harm from the 2020 NWPR are not supported by the record for the
proposed rule. The agencies also disagree that the record for the proposed rulemaking did
not provide a sufficiently detailed justification in support of the decision to replace the 2020
NWPR. In the preamble to the proposed rule, the agencies provided a summary of their
assessment of the 2020 NWPR, including the agencies' review and comparison of data
related to jurisdictional determinations issued during certain time periods under the 2020
NWPR and certain time periods under the pre-2015 regulatory regime. See, e.g., 86 FR
69413-15. In addition to this summary, the preamble to the proposed rule clearly explained
the agencies' specific findings derived from reviewing the jurisdictional determination data.
See id. The proposed rule's technical support document provided additional information
about the agencies' assessments and explained that while exact numbers for all analyses
were not obtainable from the data, there was more than sufficient volume and accuracy of
the data to demonstrate clear trends. Technical Support Document for the Proposed Rule
Section II.B. The agencies thus disagree with the suggestion that the proposed rule relied on
mere conjecture or speculation rather than facts.
Ultimately, the agencies' assessments of the jurisdictional determination and permitting
data indicated that the 2020 NWPR led to a substantial reduction in the scope of waters
subject to the Clean Water Act. See 86 FR 69413-15. The agencies found that "[g]iven the
limited authority of many states and tribes to regulate waters more broadly than the
Federal government, the narrowing of federal jurisdiction [under the 2020 NWPR] would
mean that discharges into the newly non-jurisdictional waters would in many cases no
longer be subject to regulation, including permitting processes and mitigation requirements
designed to protect the chemical, physical, and biological integrity of the nation's waters."
Id. at 69415. The agencies further found that the absence of federal protections over certain
aquatic resources and "any subsequent unregulated and unmitigated impacts to such
resources would have caused cascading, cumulative, and substantial downstream harm,
including damage connected to water supplies, water quality, flooding, drought, erosion,
and habitat integrity, thereby undermining the objective of the Clean Water Act" and
threatening to affect the integrity of downstream traditional navigable waters, the
territorial seas, and interstate waters. Id. at 69415-16. For these and other reasons, the
agencies find that the proposed rule's record adequately supported the agencies' claims of
environmental harm from the 2020 NWPR and provided a sufficiently detailed justification
in support of the decision to replace the NWPR.
The record for the final rule provides further support for the agencies' claims of
environmental harm from the 2020 NWPR. Indeed, as discussed in Final Rule Preamble
Section IV.B.3, the agencies have heard concerns from a broad array of co-regulators and
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stakeholders, including tribes, states, scientists, and non-governmental organizations, that
corroborated the agencies' data and indicated that the 2020 NWPR's reduction in the
jurisdictional scope of the Clean Water Act would cause substantial environmental harms,
including to the quality of paragraph (a)(1) waters, that tribes and states lack the authority
or resources to address.
Note that while the agencies find it clear on the face of the administrative record that the
2020 NWPR provided Clean Water Act protections for fewer waters than under the pre-
2015 regulatory regime, the agencies have provided numerous reasoned bases for the final
rule and its changes from the 2020 NWPR. Indeed, in developing the final rule, the agencies
considered the text of the relevant provisions of the Clean Water Act and the statute as a
whole, the scientific record, relevant Supreme Court case law, 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." See Final Rule Preamble Section IV.A
(discussing the basis of the final rule). And, after carefully considering the 2020 NWPR in
light of the text, objective, and legislative history of the Clean Water Act, Supreme Court
case law, the best available scientific information, and the agencies' experience in
implementing it for over a year, the agencies do not find that the 2020 NWPR is a suitable
alternative to this rule. See Final Rule Preamble Section IV.B.3 (discussing the agencies'
conclusion that the 2020 NWPR is not a suitable alternative to the final rule). These findings
satisfy the agencies' obligations under the APA to provide a reasoned explanation for the
final rule, including the agencies' decision to replace the 2020 NWPR. See FCC v. Fox, 556
U.S. 502, 514-15 (2009) ("We find no basis in the Administrative Procedure Act or in our
opinions for a requirement that all agency change be subjected to more searching review.
The Act mentions no such heightened standard. And our opinion in State Farm neither held
nor implied that every agency action representing a policy change must be justified by
reasons more substantial than those required to adopt a policy in the first instance. That
case, which involved the rescission of a prior regulation, said only that such action requires
'a reasoned analysis for the change beyond that which may be required when an agency
does not act in the first instance.' ... The statute makes no distinction, however, between
initial agency action and subsequent agency action undoing or revising that action."
(citation omitted)). See also the agencies' response to comments in Section 5.1.2.1
(addressing general comments on the rationale for the rulemaking).
Regarding the agencies' review of projects that would have required a Clean Water Act
section 404 permit before the 2020 NWPR but no longer did after the 2020 NWPR, the
agencies explained in the preamble to the proposed rule as well as the proposed rule's
technical support document that those instances involved projects where 100% of the
aquatic resources located on the project site were found non-jurisdictional under the 2020
NWPR's definition of "waters of the United States" and at least some portion of those
resources would have been jurisdictional prior to the 2020 NWPR's revised definition. See
86 FR 69414; Technical Support Document for the Proposed Rule Section II.B.i. Moreover,
the agencies explained that based on available information, they expected projects located
on sites involving aquatic resources that had become non-jurisdictional under the 2020
NWPR's revised definition "could have resulted in discharges without any regulation or
mitigation from federal, state, or tribal agencies," including because some states and tribes
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do not regulate waters beyond those covered under the Clean Water Act. See Technical
Support Document for the Proposed Rule Section II.B.i.
The agencies acknowledge that the preamble to the proposed rule discussed the 2020
NWPR's disproportionate impacts on the arid West, see, e.g., 86 FR 69414, and find that
this loss of Clean Water Act coverage would have carried concerning implications for water
quality and for the agencies' ability to accomplish the objective of the Clean Water Act
through a "comprehensive" federal program of pollution control.
The agencies disagree with the suggestion that they have taken the position that any
reduction in the scope of Clean Water Act jurisdiction is unlawful per se. Rather, after
carefully considering the 2020 NWPR in light of the text, objective, and legislative history of
the Clean Water Act, Supreme Court case law, the best available scientific information, and
the agencies' experience in implementing it for over a year, the agencies do not find that the
2020 NWPR is a suitable alternative to this rule. The agencies also disagree that the scope of
federal jurisdiction is irrelevant to defining "waters of the United States." For the reasons
discussed in Final Rule Preamble Section IV.A, the agencies conclude that the objective of
the Clean Water Act must be considered in defining "waters of the United States" and that
consideration of the objective of the Act for purposes of a rule defining "waters of the
United States" must include substantive consideration of the effects of a revised definition
on the integrity of the nation's waters. And since the objective of the Clean Water Act is to
protect the water quality of the nation's waters, this rule must be informed by science
relevant to water quality as discussed in Section IV.A.2.a of the Final Rule Preamble. At the
same time, the agencies do not interpret the objective of the Clean Water Act to be the only
factor relevant to determining the scope of the Act; rather the limitations established in the
final rule are based on the agencies' consideration of the text of the relevant provisions of
the Clean Water Act and the statute as a whole, the scientific record, relevant Supreme
Court case law, 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.
Regarding the agencies' characterization of the 2020 NWPR's impact on the arid West, see
the agencies' response to comments in Section 4.3.3. See also Final Rule Preamble Section
IV.B.3 and the agencies' response to comments in Section 4 for further discussion of the
agencies' review of the 2020 NWPR.
5.1.3 Miscellaneous APA Issues
A few commenters expressed concern that the public did not have an opportunity to provide meaningful
comment on the proposed rule due to what the commenters asserted were undefined terms and vague
concepts. In particular, one of these commenters suggested that the agencies did not provide an
opportunity for meaningful comment on the phrase "similarly situated," asserting that the term lacked a
clear definition or sufficient context.
A commenter suggested that the agencies should not be relying on the two district court orders vacating
the 2020 NWPR as a basis to stop implementing the rule nationwide, asserting that the district court
orders do not comply with the APA's requirements for courts setting aside rules, such as making a finding
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on the merits of the rule. Similarly, another commenter asserted that it violates the APA to halt
implementation of the 2020 NWPR nationwide and suggested that implementation should be limited to
the state where the relevant district court is located. This commenter further stated that halting
implementation of the 2020 NWPR nationwide is contrary to previous positions taken by the federal
government and a Department of Justice memorandum, citing U.S. Office of the Attorney General,
Memorandum: Litigation Guidelines for Cases Presenting the Possibility of Nationwide Injunctions (Sept.
13,2018).
Agencies' Response: The agencies provided adequate notice of the proposed rule consistent
with the APA. The APA requires that a notice of proposed rulemaking include either the
terms or substance of the proposed rule or a description of the subjects and issues involved.
5 U.S.C. 553(b)(3). Courts have explained that a notice of proposed rulemaking must
'"adequately frame the subjects for discussion' ... so that the notice 'affords exposure to
diverse public comment, fairness to affected parties, and an opportunity to develop evidence
in the record.'" Nat'lRest. Ass'n v. Solis, 870 F. Supp. 2d 42, 52 (D.D.C. 2012) (quoting
Conn. Light & Power Co., 673 F.2d at 533; Nat'l Mining Ass'n v. Mine Safety & Health
Admin., 116 F.3d 520, 531 (D.C. Cir. 1997)).
The preamble to the proposed rule clearly and consistently described the proposed rule,
including underlying terms and related concepts, in a manner that provided the public with
a meaningful opportunity to comment. See, e.g., 86 FR 69416-17 (describing "traditional
navigable waters"), 69418 (describing "interstate waters"), 69422 (discussing the definition
of "adjacent"), 69428-30 (discussing other defined terms used in the proposed rule), 69430
(discussing the proposed rule's definition of "significantly affect"). With respect to
"similarly situated," the preamble to the proposed rule provided a clear explanation of the
origins of this term as well as the agencies' approach to this term for purposes of
implementing the significant nexus standard under previous practice. See id. at 69436-40.
The proposed rule preamble then proceeded to walk through and solicit comment on
options for how the agencies could approach implementing "similarly situated" with respect
to specific categories of aquatic features, such as adjacent wetlands and tributaries. Id. This
discussion of "similarly situated," along with the proposed rule preamble's discussion of
other components of the significant nexus standard, provided the public with a meaningful
opportunity to comment on this aspect of the proposed rule.
Comments related to the agencies' decision to halt implementation of the 2020 NWPR
nationwide following district court orders vacating the 2020 NWPR are outside the scope of
this rulemaking.
5.2 Executive Order 12866: Regulatory Planning and Review
A commenter asserted that the agencies did not satisfy the requirements of E.O. 12866 in issuing the
proposed rule. The commenter stated that it is clear from the language of E.O. 12866 that comment
periods longer than 60 days may be necessary for the public to have a meaningful opportunity to
comment. The commenter further stated that the proposed rule's 60-day comment period did not provide
a meaningful opportunity for interested stakeholders and the public to review the supporting documents in
the docket, which they asserted were not all available when the comment period was opened, and
comment on the proposed regulation, the proposed rule Economic Analysis, and the proposed rule
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Technical Support Document. The commenter claimed that E.O. 12866 indicates that the obligation to
provide the public with a meaningful opportunity to comment on a proposed regulation is separate from,
and in addition to, other forms of public engagement during the rulemaking process. The commenter
asserted that competing invitations to participate in overlapping public engagement processes impeded
meaningful input on the proposed rule from diverse stakeholders or stakeholders with limited resources.
The commenter stated that an extension to the comment period would allow the public to focus on
reviewing the proposed regulatory text and docket separate from preparing for and participating in the
regional roundtables.
Another commenter asserted that under E.O. 12866 and E.O. 13563, the agencies "must fully consider the
cost implications of the ["waters of the United States"] definition and the burdens it imposes on
commerce and on the states. This includes ensuring that any regulation is simple, with no uncertainty in
its application. Compliance should not require the retention of hydrogeological experts but should be
comprehensible to the average landowner."
Agencies' Response: The agencies disagree with commenters who asserted that the agencies
did not satisfy the requirements of E.O. 12866 to provide the public with meaningful
participation in the regulatory process. E.O. 12866 requires agencies to provide the public
with a meaningful opportunity to comment on any proposed regulation, which in most cases
should include a comment period of not less than 60 days. The agencies provided a 62-day
public comment period on the proposed rule; specifically, the proposed rule's comment
period was open from December 7, 2021, through February 7, 2022.
The agencies disagree with commenters who asserted that not all supporting documents
were available for the public to review at the beginning of the public comment period. The
proposed rule notice published in the Federal Register on December 7, 2021, and a pre-
publication version of the notice had been available on EPA's website since November 18,
2021. The proposed rule Technical Support Document was available in the docket on
December 7, 2021 and on EPA's website on December 6, 2021. An economic analysis was
available in the docket and on EPA's website on December 7, 2021. The agencies
acknowledge that the correct version of the Economic Analysis for the proposed rule was
posted to the docket on December 9, 2021, but the agencies disagree that impeded the
public's ability to review the Economic Analysis. Even with this two-day delay in posting
the correct economic analysis, the agencies provided the public with a meaningful
opportunity to review the proposed rule, as well as its supporting documents, including the
economic analysis. As discussed in the agencies' response to comments in Section 5.1, the
public comment period for the proposed rule was open for 62 days, from December 7, 2021
to February 7, 2022. Even though the correct economic analysis was not posted to the
docket until December 9, 2021, the public still had a full 60-day time period to review that
document in conjunction with the proposed rule. Such a 60-day time period is consistent
with the 60-day public comment period recommended in Executive Order 12866.
The agencies acknowledge commenters who expressed concern about the ability of
stakeholders to comment on multiple regulatory actions at the same time. The agencies
provided various opportunities for public input to ensure all stakeholders and the public
had adequate opportunity to comment on the proposed rule. See Final Rule Preamble
Section III.C for a description of the agencies' stakeholder outreach for this rulemaking.
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The Economic Analysis for the final rule fulfills the requirements of E.O. 12866 and E.O.
13563. The agencies prepared the economic analysis pursuant to the requirements of
Executive Orders 12866 and 13563 to provide information to the public. The economic
analysis was done for informational purposes, and the agencies' final decisions on the scope
of "waters of the United States" in this rulemaking are not based on consideration of the
potential benefits and costs in the economic analysis. See also the agencies' response to
comments in Section 17 and Final Rule Preamble Section V.A for further discussion of the
Economic Analysis. As discussed in the Final Rule Preamble Section IV.A.4, the agencies
are establishing a final rule that is both familiar and implementable.
Finally, the agencies note that E.O. 12866 imposes procedural rather than substantive
requirements and "does not create any right or benefit, substantive or procedural,
enforceable at law or equity by a party against the United States, its agencies or
instrumentalities, its officers or employees, or any other person." E.O. 12866, section 10
(addressing judicial review). In other words, E.O. 12866 does not augment or limit the
agencies' statutory authorities and does not create any right to judicial review. The
executive order itself states that it is "intended only to improve internal management of the
Federal Government." See id.
5.3 Paperwork Reduction Act
No comments were submitted for this subtopic.
5.4 Unfunded Mandates Reform Act
A commenter provided input regarding the requirements of the Unfunded Mandates Reform Act
(UMRA). The commenter stated that the UMRA requires an assessment of costs to state, local, and tribal
governments; the extent to which costs to those governments may be paid by the federal government;
disproportionate budgetary effects on particular regions or communities; and estimates of the effect on the
national economy. The commenter asserted that this requirement focuses the agencies' attention on the
costs and effects of regulation on the states and the economy. The commenter stated that this cost and
benefit analysis should be a part of every federal regulation, particularly for interpreting the definition of
"waters of the United States."
Agencies' Response: This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small
governments. The final definition of "waters of the United States" applies broadly to Clean
Water Act programs. The action imposes no enforceable duty on any tribal, state, or local
governments, or the private sector.
5.5 Executive Order 13132: Federalism
Many commenters recommended that the agencies continue to engage and work closely with state entities
as co-regulators in developing and implementing the proposed rule. Several of the commenters elaborated
on this recommendation.
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• A few commenters asserted that in addition to working with state partners, the agencies should
work towards a "waters of the United States" rule which provides durability, clarity,
predictability, stability, and integrates legal precedent and science.
• A commenter recommended that the agencies provide guidance for states for the final rule in the
final rule itself. The commenter stated that if future guidance is deemed necessary after
promulgation, this guidance should be made publicly available for review and comment prior to
finalization.
• Another commenter asserted that state involvement is essential to create buy-in, reduce litigation,
and reduce future changes to the "waters of the United States" definition. The commenter stated
that more engagement with states is needed to ensure that the rulemakings achieve the goals of
the Clean Water Act. The commenter stated that they believe the definition of "waters of the
United States" must be flexible to adjust for the complexity of site-specific circumstances, and
not too prescriptive to undermine state laws aimed at providing additional protections for surface
water, groundwater, and drinking water sources. The commenter asserted that they believe
reverting to the pre-2015 regulatory regime with the proposed rule will necessitate action by some
states to make substantial statutory and regulatory changes.
A few commenters asserted that states are well positioned as partners to provide expertise and guidance to
the agencies because of their experience with implementing prior rules locally, which the commenters
asserted would be useful in developing and implementing the proposed rule. A commenter stated that the
agencies should conduct regular, interactive, meaningful dialogue with state agencies through
workgroups, focus groups, forums, calls, and other communication as the proposed rule is drafted. The
commenter requested that the agencies provide an early draft of regulatory text for state agencies to
provide feedback on the proposal and evaluate the regulatory text in terms of technical details,
implementation challenges and barriers, and unintended consequences.
A few commenters expressed support for increased engagement with states on the proposed rule based on
federalism related concerns and explained why.
• A commenter stated that to remain compliant with the Clean Water Act's concept of cooperative
federalism and the APA's notice-and-comment requirements, the agencies must engage the states
and the regulated community throughout a rulemaking. The commenter recommended that the
agencies respond in writing to all the comments received, hold further meetings with the public
and the states, and then reopen another comment period.
• Another commenter asserted that "information-sharing" does not equate to meaningful
consultation, and the uncertainty that exists regarding Clean Water Act jurisdiction requires the
agencies to develop Clean Water Act jurisdiction efforts in partnership with the states. The
commenter recommended that the agencies develop a robust state participation and consultation
process in the development and implementation of any rule, and the commenter stated that the
rule has inherent federalism implications. The commenter also recommended that the agencies
engage a representative number of states, as co-regulators, with diverse perspectives and regions
to work with the agencies to provide feedback on implementing the proposed rule.
A few commenters provided input on how the agencies should engage states as co-regulators in
consideration of the pending Supreme Court decision on the Sackett case.
• A commenter recommended that as soon as the Supreme Court rules on Sackett, the agencies
should convene a meeting with the states to discuss any regulatory clarifications of the "waters of
the United States" definition that may be necessary.
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• Another commenter recommended that the agencies continue their outreach after publication of
the final rule to ensure implementation is efficient, collaborative, and minimizes unintended
consequences to the nation's fish and wildlife resources. The commenter recommended that this
outreach include sustained collaboration with states in the areas of jurisdictional determination
training and promotion of consistency within regions; consideration of staffing and resource
needs in light of ongoing constraints from the COVID-19 pandemic and simultaneous increases
in infrastructure permitting and development; effects of frequent regulatory changes over the past
several years on section 402 permitting and on state assumptions of the section 404 program; and
effects of a broader "waters of the United States" definition on implementation of statutes for
species conservation, including section 7 consultation and section 10 permitting under the
Endangered Species Act. The commenter also stated that they believe in the event that
rulemaking after the final issuance of the proposed rule is affected by a ruling from the Supreme
Court on the Sackett case, the agencies should increase consultation efforts with states affected by
a revised interpretation of the Clean Water Act to advance the dual needs of regulatory clarity and
ecological integrity of covered and non-covered waters.
• Another commenter asserted that the agencies should continue to engage with state co-regulators
to build a process to appropriately assess the jurisdictional status of state ephemeral and isolated
waters. The commenter recommended that the agencies continue to engage with a variety of
stakeholders to better develop the discussion on how to best arrive at the appropriate
jurisdictional determination for these waters. The commenter asserted that these discussions
would assist with implementation of post-Sackett determinations.
• Another commenter asserted that they believe the proposed rule should be deferred for the second
rulemaking. The commenter claimed that the proposed rule would codify a vague and broad
significant nexus test and does not improve clarity or transparency. The commenter offered to
participate in the roundtable stakeholder process proposed by the agencies. The commenter stated
that further work with the states and stakeholders should continue before another regulatory
change is implemented. The commenter stated that they believe that avoiding a shifting
regulatory landscape is critical since the Supreme Court has granted review in Sackett.
In addition to supporting efforts to engage states, a few commenters recommended that the agencies
undertake robust public outreach, including collaborative discussions with tribes, when finalizing the
proposed rule and the second rulemaking. Another commenter asserted that changes in the definition of
"waters of the United States" and the scope of federal jurisdiction have significant direct and indirect
impacts on states and tribes. The commenter argued that input from states and tribes is critical to ensure
the revised definition of "waters of the United States" developed under the proposed rule is defensible,
durable, and informed by science and implementation experience. The commenter recommended that the
agencies reach out to state governors and tribal leaders to invite them to participate in a future workshop
focused on regional challenges in advance of initiating the second rulemaking process. The commenter
offered to assist the agencies in organizing co-regulator meetings similar to the workshops held at EPA
headquarters on March 8-9, 2018, for states and March 10-11, 2018, for tribes. The commenter asserted
that those meetings stood out as an "unusually open and frank discussion" about possible paths forward in
writing a new rule.
A few commenters asserted that the agencies should continue to expand upon engagement efforts with
local governments. A commenter stated that federal, state, and local governments must work together to
craft reasonable and practicable rules and regulations. The commenter asserted that as partners in
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protecting America's water resources, it is essential that local governments understand the impact that a
change to the definition of "waters of the United States" will have on all aspects of the Clean Water Act.
Another commenter recommended that the proposed rule should include language that would require
coordination between federal agencies and local government.
A few commenters recommended that the agencies specifically engage counties in developing the
proposed rule. For example, a commenter stated that while they supported the agencies' outreach efforts
over the last several months, they recommended that the agencies conduct additional consultation with
county leaders from across the country, stating that county leaders are able to provide unique insight on
the impacts of the proposed "waters of the United States" definition. The commenter stated that county
leaders have asked for a transparent and straightforward rulemaking process, including federalism
consultations under E.O. 13132. Another commenter recommended that the agencies recognize local
governments as co-owners and operators of key public safety and water infrastructure and as an
intergovernmental partner in implementing federal regulations under the Clean Water Act.
Several commenters asserted that the agencies should engage both state and local governments as
significant partners in the development of the proposed rule.
• A commenter asserted that state and local governments are crucial in prioritizing implementation
projects and initiatives that protect local water resources.
• Another commenter recommended that the agencies consult and coordinate with co-regulatory
states to the maximum extent possible on any proposed rule revision to ensure that any changes to
the proposed rule have been adequately considered by the jurisdiction affected, stating that any
revisions directly impact both state and local governments' economic viability. The commenter
also recommended that the agencies work with state and local governments for data collection,
mapping, and distribution.
• Another commenter asserted that engaging with local and state agencies to gather information
and input may be helpful before finalizing "waters of the United States" determinations where the
significant nexus determination is used.
Many commenters expressed support for the agencies' efforts to obtain input from the states during the
rulemaking process and several indicated a desire for communication to continue with states as the
proposed rule moves forward.
• A commenter expressed appreciation for the agencies' response to their letter offering to help
organize and host regional meetings in anticipation of the promulgation of the second rule.
• Another commenter expressed support for the agencies' engagement opportunities for the
proposed rule, in addition to the agencies' commitment to implement a second rulemaking to
provide clarity and to develop a durable rule grounded in science and informed by public
engagement.
• Another commenter stated support for the initial federalism consultation on August 5, 2021, and
the subsequent state-and-local official and association roundtables in January 2022 which
provided states and local government officials an early opportunity to weigh in on potential
changes.
• Another commenter expressed support for the agencies' outreach to date, in particular the focus
on identifying regional issues through regional meetings.
• Another commenter asserted that while the agencies received input from communities and
various government organizations to ensure that the proposed rule accounted for the nation's best
interests, they believe the proposed rule could be made stronger by listing actions taken because
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of these meetings and specific groups that attended consultations, allowing readers to see the
wide range of organizations involved in the rulemaking process.
Several commenters expressed concerns regarding the agencies' engagement with co-regulators during
the proposed rulemaking process.
• A commenter asserted that they believe coordination of opportunities for public comment for co-
regulators has been confusing and poorly timed. The commenter stated that it was unclear how
the agencies have included public and co-regulator input received from the August 4, 2021,
solicitation and state dialogue meetings held in the fall of 2021. The commenter asserted that
opportunities for public engagement, and recommendations specifically solicited by the agencies,
have focused on potential revisions anticipated to be included in a second rulemaking, rather than
the proposed rule. The commenter provided an example of the agencies' notice published on
August 4, 2021, stating that the notice solicited recommendations on specific topics that are
largely omitted from the proposed rule. The commenter also asserted that regionally focused
roundtables had not taken place and they were confused as to why co-regulators were described
as "participants." The commenter expressed concern that the proposed rule does not contain
specific information about co-regulator engagement opportunities.
• Another commenter asserted that they believe the proposed rule warrants, but has not achieved,
the same level of co-regulator involvement as described for the second rulemaking.
• Another commenter asserted that compliance with Executive Order 13132 "includes not only
involving the states in crafting a workable definition, but exploring whether state regulation
would equally, if not more so, satisfy the Agencies' clean water objectives."
• Another commenter claimed that since the notice of intent to issue a revised rule was published
this past fall, they had yet to see a concerted effort from the agencies to conduct in-depth
consultation with co-regulating states. The commenter stated that without purposeful consultation
with state governors, the agencies cannot develop an appropriate rule.
A few commenters specifically expressed concerns regarding the agencies' compliance with E.O. 13132.
• A commenter asserted that they believe the proposed rule violates the concept of federalism and
that implementing the proposed regulations within their county conflicts with E.O. 13132. The
commenter asserted that they did not see any documentation that construes that federal statutes
preempt their state water laws. The commenter also questioned whether local officials in their
county were contacted about the proposed rule. The commenter asserted that there are no
navigable waters located within the boundaries of their county and therefore the proposed
regulations do not apply to waters within their county.
• Another commenter argued that the proposed rule does not adhere to the federalism principles
and criteria outlined in E.O. 13132, providing an example of section 2(f) of E.O. 13132. The
commenter recommended that the agencies withdraw the proposed rule and complete the state
and local consultation process; include state and local entities in the development of the "waters
of the United States" definition; and consider ways to provide states additional flexibility
consistent with the Clean Water Act section 101(b) policies and E.O. 13132. The commenter
asserted that while the "Federalism Summary Report" provides an overview of the comments the
agencies received through letters and meetings, they believe it fails to describe how the agencies
incorporated the feedback into the proposed rule. The commenter expressed concern that they
believe the agencies submitted the draft proposed rule to the Office of Management and Budget
for interagency review more than a week before the final regional meeting with stakeholders took
place. The commenter expressed skepticism that the outreach to states and local governments was
meaningful and that the agencies incorporated the feedback they received. The commenter
asserted that they believe the agencies seem intent on devising a definition for "waters of the
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United States" that maximizes federal jurisdiction, instead of one that respects regional variability
and recognizes that federal jurisdiction should be narrowly drawn.
Another commenter asserted that the agencies must comply with various Executive Orders (E.O.),
including E.O. 13132.
Agencies' Response: The agencies agree with commenters who support a clear and durable
definition of "waters of the United States." The agencies disagree with commenters who
asserted that the scope of jurisdiction under the proposed rule would be too broad. 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' 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 timely public comments on the
proposed rule, including changes that improve clarity, implementability, and long-term
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 this rule increases clarity,
implementability, and durability by streamlining and restructuring the rule and providing
implementation guidance informed by sound science, implementation tools, and other
resources. Further, because this rule is founded upon a longstanding regulatory framework
and reflects consideration of 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 disagree with commenters who claimed that the agencies' federalism outreach
efforts were insufficient, or that the agencies did not comply with E.O. 13132. The agencies
acknowledge the important role of states as co-regulators, as well as the important
perspectives of counties and local governments. Consulting with state and local government
officials, or their representative national organizations, is an important step in the process
prior to proposing regulations that may have federalism implications under the terms of
Executive Order 13132. Thus, the agencies engaged state and local governments over a 60-
day federalism consultation period during development of this rule, beginning with an
initial federalism consultation meeting on August 5, 2021, and concluding on October 4,
2021. During the input period, the agencies convened several meetings with
intergovernmental associations and their state or local government members to solicit
feedback on the effort to revise the definition of "waters of the United States." The agencies
also engaged with state and local governments during the public comment period, including
through two virtual roundtables in January 2022. A summary report on the agencies'
consultation efforts with state and local governments is available in the docket for this
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action. For more information on the agencies' federalism consultation for this rulemaking,
see Final Rule Preamble Section V.E.
The agencies acknowledge the importance of regional differences when creating and
implementing a durable definition of "waters of the United States." The agencies have
considered public comments regarding regional approaches and regional variations. The
final rule will provide increased clarity and certainty regarding the identification of "waters
of the United States." The agencies received many helpful comments on the proposed rule
that resulted in refinement of the final rule to provide further clarity and certainty to the
regulated public. The initial phase of implementing the rule will require education and
training for agency staff as well as co-regulators, stakeholders, and the regulated public,
which will likely include regionally based training to ensure consistent and efficient
implementation of the rule. See also the agencies' response to comments in Section 18.3.
The agencies agree with commenters that if future implementation guidance is required, the
agencies should make the guidance publicly and widely available to states and stakeholders.
As with any final regulation, the agencies will consider developing new guidance to facilitate
implementation of the final rule should questions arise in the field regarding application of
the final rule for states and stakeholders. 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 acknowledge commenters who requested continued outreach and training
opportunities to facilitate implementation, as well as commenters who requested outreach
as part of a second rulemaking process or outreach after the Sackett Supreme Court ruling.
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 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. The agencies will continue to evaluate outreach needs to
facilitate stakeholder engagement and implementation consistency in the definition of
"waters of the United States."
See also the agencies' response to comments in Section 5.1 (discussing the APA) and Section
2.2 (discussing federal-state balance).
5.6 Executive Order 13175: Consultation and Coordination with Indian Tribal
Governments
Many commenters provided input regarding the agencies' consultation with tribes pursuant to E.O. 13175
in developing the proposed rule. A few commenters stated that the agencies have an obligation pursuant
to E.O. 13175 to consult with tribes when they formulate policies that have tribal implications, as is the
case with the proposed rule. Some commenters expanded on this statement.
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A commenter stated that meaningful consultation with tribes must occur prior to any decision on
the proposed rule. The commenter also stated that the agencies must respect tribal self-
government and sovereignty, honor tribal treaty and other rights, and strive to meet the
responsibilities that arise from the unique legal relationship between the federal government and
Indian tribal governments.
Another commenter expressed support for participating in the agencies' intended plans for further
engagement and requested that the agencies keep in mind the COVID-19 mitigation measures and
Tribal Executive Health Orders currently in place.
Another commenter recommended that the agencies conduct tribal consultation separate from
public hearings to seek and incorporate tribal nation guidance as the agencies finalize the
proposed rule.
Another commenter stated that the Corps has made specific commitments to indigenous peoples
through its U.S. Army Corps of Engineers Tribal Policy Principles.
A commenter urged the agencies to consider the impacts that any revisions to the proposed rule
would have on their tribe as well as any other tribes as required by law.
Several commenters expressed concern regarding tribal engagement in the proposed rulemaking process,
and made the following points:
• A commenter asserted that they did not see any recognition of the tribes' and native peoples'
interests represented in the proposed rule. The commenter stated that there is a specific need for
Clean Water Act protections for wetlands that support tribal "First Foods" resources. The
commenter stated that traditional harvest methods of aquatic plants put people into direct contact
with wetland sediments, making it another route of exposure to toxic chemicals that may be found
at these locations. In addition, the commenter claimed that because of the status of tribes as
sovereign nations, tribal uses are federal uses under the interstate Commerce Clause. The
commenter recommended that all waters that have identified tribal uses be included in the
definition of "waters of the United States."
• Another commenter stated that they believe the January 20, 2022, "Tribal Roundtable Discussion
on WOTUS" did not resemble effective and meaningful engagement with the tribes. The
commenter stated that they believe the demeanor of the meeting demonstrated "the continued
treatment by your agencies that tribes are deserving of being talked at, and by being asked to
answer questions."
• Another commenter asserted that while the agencies conducted tribal consultations on the initial
development of the proposed rule, further tribal consultation should have been initiated by the
agencies once the rule was published. The commenter asserted that instead of initiating tribal
consultation on the proposed rule to revise the definition of "waters of the United States," the
agencies hosted public hearings to receive input from the public and "stakeholders." The
commenter stated that tribal nations should not be incorporated into the definition of
"stakeholder" due to the federal government's trust and treaty obligations. The commenter stated
that they believe the public hearings offered by the agencies did not focus on issues of concern to
tribal nations. The commenter also recommended that the agencies provide tribal-specific updates
to the comments received during the 2021 consultations and indicate how those comments
informed the development of the proposed rule.
• Another commenter urged the agencies to participate meaningfully in consultation with pueblos
and tribes. The commenter asserted that they often make and submit comments that are routinely
not incorporated into rulemakings, and they further claimed that they rarely hear back from the
agencies about why input was excluded. The commenter stated that the proposed rule will have
profound impacts on their pueblo because exclusions of Clean Water Act protections for
ephemeral or intermittent streams on tribal lands will result in additional pollution and
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environmental impacts. The commenter requested that the agencies provide a definition for
"meaningful and regular consultation" in the rulemaking because the commenter believed that
this concept was unclear. The commenter stated that their pueblo can offer technical and cultural
resource knowledge unknown to the agencies, which would be helpful for the proposed rule.
A commenter asserted that the agencies did an excellent job accounting for various communities and
concerns, stating that the agencies ensured that the proposed rule was not overly burdensome for any
single population. The commenter stated that the agencies discussed the proposed rule with tribal officials
under the "U.S. Environmental Protection Agency Policy on Consultation and Coordination with Indian
Tribes" and the "Department of the Army American Indian and Alaska Native Policy" and asserted that
allowing these groups to give important feedback includes them in the process. A commenter stated that
that they support the extensive consultation and consideration given to tribal needs in the proposed rule.
Agencies' Response: The agencies disagree with commenters who asserted that tribal
nations were treated as "stakeholders" during the agencies' engagement on the proposed
rule. The agencies acknowledge commenters who recommended that the agencies consider
the impacts of the proposed rule on tribes, as well as commenters who recommended that
the agencies incorporate tribal uses in the rule. Consistent with the federal trust
responsibility, the agencies are committed to maintaining their longstanding work with
federally recognized tribes on a government-to-government basis. This final rule reflects the
agencies' consideration of the wide range of comments received from tribes and tribal
entities throughout the tribal consultation and coordination process and in additional
engagements with tribes, as well as comments submitted by tribes during the public
comment period for the proposed rule. The agencies recognize the federal government's
trust responsibility to federally recognized Indian tribes that arises from treaties, statutes,
executive orders, and the historical relations between the United States and tribes. The
agencies' federal trust responsibility, however, does not expand Congress's grant of
authority to the agencies in the Clean Water Act. As discussed in Final Rule Preamble
Section IV.A, in developing this rule, the agencies considered the text of the relevant
provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant
Supreme Court case law, 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." The agencies find that the scope of "waters of the United States" defined
in the final rule is supported by the Clean Water Act and relevant Supreme Court case law
and remains well within the bounds of the agencies' statutory and constitutional limits. See
also the agencies' response to comments in Section 2.4.1.
The agencies disagree with commenters who asserted that the agencies' tribal consultation
was insufficient, and the agencies acknowledge commenters who suggested that further
consultation occur after the proposed rule. EPA and the Army consulted with tribal
officials under the "EPA Policy on Consultation and Coordination with Indian Tribes" and
the "Department of the Army American Indian and Alaska Native Policy" early in the
process of developing this regulation to permit them to have meaningful and timely input
into this development. The tribal consultation period extended from July 30, 2021, to
October 4, 2021. During the input period, the agencies convened several meetings with
tribes, intertribal associations, and their members to solicit feedback on the effort to revise
the definition of "waters of the United States." The agencies also met with individual tribes
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requesting consultation at a staff-level or leader-to-leader level, consistent with their
requests. A summary report on the agencies' consultation and engagement efforts with
tribes is available in the rulemaking docket. The agencies presented information, responded
to questions, and listened to tribal perspectives during these meetings. Additionally, the
agencies reviewed and considered all feedback received during the consultation period and
the public comment period in developing the final rule.
E.0.13175 defines "policies that have tribal implications" as "regulations, legislative
comments or proposed legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian tribes, 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." In May 2011, the EPA issued the
"EPA Policy on Coordination and Consultation with Indian Tribes." This policy establishes
national guidelines and institutional controls for consultation across the EPA. It also reflects
the principles expressed in the 1984 "EPA Policy for the Administration of Environmental
Programs on Indian Reservations" and takes a broader view of the need for consultation
than does E.O. 13175. The policy provides that consultation with federally recognized tribes
may be appropriate when EPA actions and decisions may affect tribal interests. The Corps
issued its Tribal Consultation Policy in November 2012. As discussed in Final Rule
Preamble Section V.F, the agencies have determined that although the final rule has tribal
implications, it does not have tribal implications as prescribed in E.O. 13175 as it does not
impose substantial direct compliance costs on Indian tribal governments and does not
preempt tribal law. Therefore, the agencies have conducted tribal consultation consistent
with their tribal consultation policies.
The agencies acknowledge commenters who expressed concern regarding protections for
intermittent and ephemeral streams. The agencies are not categorically including or
excluding streams as jurisdictional based on their flow regime in this rule. The agencies
agree that streams can provide many important functions for paragraph (a)(1) waters.
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 for more information on the agencies' rationale for the scope
of tributaries covered by this rule.
5.7 Executive Order 13045: Protection of Children from Environmental Health and
Safety Risks
A commenter stated that it appeared that the agencies considered widespread concerns, including
children's health, in their proposed rulemaking process. The commenter claimed that this strategy was a
persuasive tool and leaves the public with fewer questions about potential negative implications for the
proposed rule. The commenter also stated that it would be beneficial to use scientific data to explain why
there would be no health risks among children under the proposed rule.
Agencies' Response: The agencies acknowledge that protection of children from
environmental health and safety risks is addressed under E.O. 13045. E.O. 13045 applies to
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any rule that: (1) is determined to be "economically significant" as defined under E.O.
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. The final rule is not
subject to E.O. 13045 because the environmental health or safety risks addressed by this
action do not present a disproportionate risk to children. It is a definitional rule. The final
revised definition does not affect the Corps' enforcement regulations (33 CFR part 326).
The agencies will continue to regulate "waters of the United States" by, among other things,
discouraging unauthorized activities, permitting discharges, and using a range of available
enforcement resources to maintain the integrity of the agencies' Clean Water Act programs.
The agencies point out that other statutes protect waters outside of the Clean Water Act,
such as the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and
various state and local laws.
5.8 Executive Order 13211: Actions Concerning Regulations that Significantly Affect
Energy Supply, Distribution or Use
A commenter asserted that the agencies stated that the proposal should not harm energy supply or
distribution. The commenter interpreted this statement as an apprehension of large power companies and
asserted that addressing these energy concerns will help people who are unsure of the proposed rule begin
to trust that the agencies acted in the people's best interest.
Agencies' Response: The agencies acknowledge that the effect of regulations on energy
supply, distribution or use is addressed under E.O. 13211. This final rule is not subject to
E.O. 13211 because it is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
5.9 National Technology Transfer and Advancement Act
No comments were submitted for this subtopic.
5.10 Executive Order 12898: Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations
Several commenters indicated that it is important that the agencies meet requirements for preparing an
environmental justice analysis pursuant to E.O. 12898.
A commenter argued that the proposed rule does not create any regulatory requirements or direct
environmental impacts and that E.O. 12898 does not require additional environmental justice review. This
commenter asserted that E.O. 12898 is narrow in scope and should not be interpreted as a requirement for
environmental justice analysis in every federal action or rulemaking decision.
A few commenters urged the agencies to restore strong clean water protections in the proposed rule for
vulnerable populations.
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• A commenter recommended that the agencies identify and address the impacts of pollution and
flooding on communities, and that the agencies understand the concerns from marginalized,
underserved, underrepresented, and disadvantaged communities.
• A commenter asserted that the 2020 NWPR harmed waters across the United States, but the
effects of the withdrawal of federal clean water protections were disproportionately felt by low-
income communities and communities of color. The commenter asserted that only with strong
federal clean water protections can the Administration and the agencies ensure that everyone has
access to clean, safe water.
• A commenter recommended that in the proposed rulemaking, and any subsequent rulemakings,
the agencies prioritize the advancement of environmental justice and the protections of tribal
interests.
A few commenters expressed concern that any narrowing of the scope of "waters of the United States"
would need to first consider environmental justice impacts, a consideration that they asserted is mandated
by E.O. 13990. A commenter further asserted that an unduly restrictive definition of "waters of the United
States" would disproportionately harm environmental justice communities. A few commenters expressed
concern that any decision by the agencies to limit protections under the Clean Water Act can have
significant, disproportionate impacts on environmental justice communities, including tribes. The
commenters stated that because tribal governments rely to a much greater extent than states on the
agencies' water pollution prevention programs, any narrowing of federal government jurisdiction would
have a disproportionate impact on tribes. Some commenters asserted that without the Clean Water Act,
tribes have little or no authority to regulate waters within or upstream of their reservations, and they lack
the legal tools to protect their waters from upstream discharges stemming from mining activities, or the
destruction of ephemeral washes caused by upstream development and agricultural practices. These
commenters recommended that the agencies address these considerations as they finalize the proposed
rule.
Several commenters recommended that the agencies take meaningful action and expand their stakeholder
engagement efforts with particularly vulnerable populations to ensure that the agencies involve and
understand the concerns from these communities. A few of the commenters expanded on this
recommendation.
• A commenter recommended that the agencies engage environmental justice communities,
including indigenous tribes and environmental justice organizations. The commenter asserted that
creating more opportunities for engagement and feedback would help the agencies better
understand the disproportionate impacts of the 2020 NWPR and the potential impacts of the
proposed rule.
• Another commenter recommended that the agencies ensure input is received by environmental
justice communities by offering input opportunities in multiple languages. The commenter
recommended that the agencies work to ensure that communities of color most affected by water
pollution, flooding, and related infrastructure injustices are at the forefront of the decision-making
process. The commenter further recommended developing metrics to provide routine audits that
increase transparency and streamline risk communication. The commenter also recommended
that the agencies work to ensure that all parties come to the table with a mutual interest in
advancing solutions for communities burdened with environmental racism and environmental
justice, incorporating their feedback into actionable solutions from the very initial stages of the
rulemaking process.
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A few commenters expressed support for the agencies' efforts to recognize the role that the proposed rule
can play in promoting consideration of environmental justice and the disproportionate impacts on low-
income, minority, indigenous, and underserved communities.
However, several commenters expressed concern that the proposed rule did not include complete
consideration of environmental justice impacts. Several commenters argued that pursuant to Executive
Orders 12898 and 14008, the agencies must conduct a comprehensive environmental justice analysis of
the proposed rule to identify and mitigate the impacts of the proposed rule. A commenter claimed that
while the agencies' emphasis on environmental justice is commendable, the proposed rule also applies to
people who live in rural communities under E.O. 13985. The commenter asserted that the agencies have
not followed the direction of E.O. 13985, stating that the proposed rule ignores the concerns of rural
America and imposes burdens on farmers and ranchers. Additionally, a few commenters asserted that
E.O. 12898 and E.O 14008 direct the agencies to identify and address environmental effects of programs
and policies on disadvantaged, historically marginalized, and overburdened communities, but the
commenters asserted that the proposed rule does not meet the requirements because it relies on a flawed
and incomplete analysis of environmental justice impacts.
A few commenters provided suggestions for additional measures to incorporate in the proposed rule in
consideration of environmental justice.
• A commenter stated that cultural traditions in tribal and low-income communities are an
important policymaking consideration.
• Another commenter recommended that the agencies protect the most vulnerable communities by
investing in tools and methodologies to protect coastal wetlands. They also recommended that the
agencies incorporate the conservation efforts in the Justice40 Initiative and leverage the current
Administration's agenda to prioritize environmental justice and climate change.
A few commenters expressed specific concerns regarding how environmental justice was included in the
proposed rule.
• One commenter stated that, consistent with the Administration's environmental justice emphasis,
the agencies should not promulgate a rule that can only be complied with through substantial
expenditures to hire experts.
• A commenter asserted that the proposed rule does not make clear how environmental justice will
be factored into jurisdictional determinations. The commenter asserted that the agencies' claims
about the results of the economic analysis and their claims regarding a need for further
environmental justice analysis (citing page 69447 of the proposed rule) are in contradiction with
one another. The commenter recommended that if there is a need for further environmental
justice analysis, it should be provided before a final rule so that it is clear how environmental
justice issues apply to jurisdictional determinations, and so that the public has the opportunity to
comment.
• A commenter stated that some state agencies responsible for implementing the "waters of the
United States" at the local level recommended that the agencies should not include environmental
justice components in the proposed rule. The commenter asserted that the foundational rule is not
the appropriate vehicle to address environmental justice.
• A commenter asserted that environmental justice cannot be used as a scientific or legal basis for
defining jurisdictional waters. The commenter claimed that the agencies are limited by their
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statutory authority, and as such are not able to decide "abstract philosophical questions" or
solutions for environmental justice.
• A commenter asserted that tribes have provided numerous examples of the deleterious effects of
limiting the reach of the Clean Water Act, noting examples of how the 2020 NWPR revoked
protection for certain waters. The commenter asserted that they believe the agencies failed to
undertake a robust analysis of the environmental justice impacts of the 2020 NWPR. The
commenter stated that the agencies must undertake an analysis of the environmental justice
impacts of the 2020 NWPR and take steps to address impacts to environmental justice
communities.
• A commenter asserted that the 1980s definition of "waters of the United States" that the agencies
proposed to return to did not consider environmental justice because the 1980s regulations were
put in place before E.O. 12898. The commenter also claimed that the agencies' assertions
regarding the negative impacts of the 2020 NWPR on environmental justice communities are
unsupported. The commenter asserted that the agencies' proposed rule Economic Analysis
indicates that the proposed rule would not provide benefits to the environment and environmental
justice communities as the agencies have claimed. The commenter also argued that E.O. 13990
and E.O. 14008 link economic growth and job creation with advancing the cause of
environmental justice. The commenter claimed that the environmental justice section of the
preamble to the proposed rule, the Technical Support Document, and the Economic Analysis all
fail to address how job growth in rural areas, low-income and minority populations, and
indigenous communities will be advanced by the proposed rule. The commenter further asserted
that the discussion of potential impacts suggests permitting costs and other regulatory burdens
will increase as a result of replacing the 2020 NWPR, which they claimed will undermine the
Biden Administration's infrastructure agenda, as well as its commitment to environmental justice.
The commenter recommended that the agencies withdraw the proposed rule and conduct an
analysis of how replacement of the 2020 NWPR with the proposed pre-2015 regulatory regime
benefits both environmental justice and job creation, which they asserted is required by E.O.
13990.
Agencies' Response: The agencies disagree with commenters who asserted that the agencies
did not satisfy the requirements of Executive Order 12898 or other Executive Orders
related to environmental justice. The agencies conclude that this action does not have
disproportionately high and adverse human health or environmental effects on Indigenous
peoples, people of color, and/or low-income populations as specified in Executive Order
12898 (59 FR 7629, February 16,1994). The documentation for this decision is contained in
in the Economic Analysis for the Final Rule Chapter IV, which can be found in the docket
for this action. See also the agencies' response to comments on the environmental justice
analysis in Section 17.6.
The agencies acknowledge commenters who supported the consideration of environmental
justice in the definition of "waters of the United States," as well as commenters who
asserted that environmental justice cannot service as a basis for defining jurisdictional
waters. While impacts on communities with environmental justice concerns are not a basis
for determining the scope of the definition of "waters of the United States," the agencies
recognize that the burdens of environmental pollution and climate change often fall
disproportionately on communities with environmental justice concerns (e.gminority
(Indigenous peoples and/or people of color) and low-income populations, as specified in
Executive Order 12898). The agencies have qualitatively assessed impacts to these groups in
the Economic Analysis for the Final Rule. Compared to the average population, these
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groups are more likely to experience water-related environmental and social stressors such
as contaminated drinking water, limited access to clean water, and inadequate water
infrastructure—all of which increase their risk of exposure to pollutants. In addition to
external stressors, behavioral and cultural characteristics of these groups, such as
subsistence fishing and consuming higher rates of fish from polluted waters, increases their
vulnerability to pollution. Taken together, these environmental, social, and behavioral
factors often increase these groups' exposure to environmental contaminants and resulting
risk of negative health outcomes. See the Economic Analysis for the Final Rule Chapter IV
for additional information on the agencies' environmental justice analysis.
The agencies acknowledge commenters who stated the importance of clean water, including
commenters who cautioned that narrowing the scope of jurisdiction would
disproportionately impact population groups of concern. In this action, the agencies are
finalizing a definition of "waters of the United States" that is within the agencies' authority
under the Act; that advances the objective of the Clean Water Act; that establishes
limitations that are consistent with the statutory text, supported by the scientific record,
and informed by relevant Supreme Court decisions; and that is both familiar and
implementable. See Final Rule Preamble Section IV.A. As discussed in Section V.A of the
Preamble to the Final Rule, this final rule is generally comparable in scope to the pre-2015
regulatory regime that the agencies are currently implementing.
The agencies agree with commenters who asserted that the 2020 NWPR narrowed the scope
of jurisdiction and had disproportionate impacts on population groups of concern. The
agencies disagree with commenters who asserted that the agencies' analysis regarding the
impacts of the 2020 NWPR were insufficient. See Final Rule Preamble Sections III.B.5 and
IV.B.3 and the Economic Analysis for the Final Rule for additional information.
The agencies acknowledge commenters who expressed concern about any rule that can only
be complied with through substantial expenditures to hire experts. However, the final rule
does not require substantial expenditures to hire experts; see Final Rule Preamble Section
IV.C.10 for additional discussion.
See Final Rule Preamble Section III.C for a description of the agencies' stakeholder
engagement for the proposed rule. The agencies acknowledge commenters'
recommendations for how to expand outreach to environmental justice communities.
5.11 Small Business Regulatory Enforcement Fairness Act (SBREFA)/Regulatory
Flexibility Act (RFA)
Several commenters asserted that the agencies did not adequately analyze the implications and additional
costs of the proposed rule on small entities, including in the proposed rule Economic Analysis, and these
commenters asserted that the proposed rule must respect the legal limits of authority placed on the scope
of "waters of the United States." A few of the commenters expanded upon this assertion, urging the
agencies to withdraw the proposed rule and engage in more meaningful dialogue with small businesses
and regulated entities.
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Many commenters expressed concerns that they believed the proposed rule would have significant
impacts on a substantial number of small entities. Several commenters asserted that the proposed rule
would increase permitting costs for small entities because the proposed rule would expand jurisdiction
with unclear rules. A few of the commenters expanded on this assertion, indicating that the following
small entities would be particularly impacted by the proposed rule:
• Aquatic industries;
• Pest control businesses;
• Building material sector businesses;
• Small businesses; and
• Farmers.
A commenter claimed that costs to small entities with the proposed rule's expansion of jurisdiction under
the Clean Water Act would be hundreds of millions of dollars, and the commenter stated that therefore the
agencies' certification of "no small entity impact" was incorrect. The commenter recommended that the
agencies include exclusions for stormwater controls, farm and stock watering ponds, puddles, and most
ditches to minimize costs. The commenter also asserted that the agencies have obligations under the U.S.
Office of Management and Budget (OMB) guidance and the Regulatory Flexibility Act (RFA) to measure
and communicate cost increases.
Many commenters requested that the agencies form a panel under the Small Business Regulatory
Enforcement Fairness Act (SBREFA). Some of these commenters explained this request in further detail.
• A few commenters claimed that the agencies failed to comply with the RFA by failing to hold a
SBREFA panel. The commenters also asserted that the agencies did not develop a sufficient
record to support their certification of "no significant impact" on a substantial number of small
entities. The commenters further asserted that the roundtable with the agencies conducted with
the small business community was insufficient in terms of the outreach that is needed for the
proposed rule.
• A commenter recommended that the agencies hold the proposed rule in "abeyance," stating that
the agencies should consider alternative approaches for small entities by convening a Small
Business Advocacy Review (SBAR) panel prior to promulgating any further rule on this issue.
• Another commenter asserted that the agencies misrepresented the proposed rule as reinstating the
status quo, that the agencies have not engaged in thorough small business review, and that the
proposed rule Economic Analysis does not reflect the breadth of the proposed rule changes. The
commenter claimed that a SBREFA panel is warranted in addition to a more thorough economic
analysis.
• A commenter asserted that a SBREFA analysis is necessary to assess the impact of the proposed
rule on small producers already harmed by COVID-19 and facing other federal mandates.
Several commenters asserted that the agencies did not meet the procedural requirements under the RFA.
Some of the commenters further expanded upon this assertion.
• A few commenters asserted that the agencies improperly certified the proposed rule under the
RFA because they stated that the rule would likely have direct significant impacts on a substantial
number of small entities.
• A commenter argued that an RFA analysis for the proposed rule must assess the impact on small
entities and evaluate whether less burdensome alternatives are available. The commenter stated
that the agencies must publish this analysis in initial form, along with the proposed and final rule.
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The commenter also claimed that under the 2015 Clean Water Rule, the agencies did not conduct
an RFA analysis.
• A commenter contended that the agencies failed to state a factual basis in their RFA certification
for the "primary baseline" used by the agencies. The commenter further claimed that the agencies
failed to identify the differences between the proposed rule and the rule currently being enforced.
The commenter asserted that the agencies cannot certify using the "secondary baseline" because
the agencies have not properly quantified the full direct costs to small entities in transitioning
from the 2020 NWPR to the proposed rule, and the commenter asserted that the agencies must
conduct an "IRFA" for notice and comment.
• A commenter asserted that the proposed rule fails to take account of the needs and property rights
of small businesses under the RFA. The commenter recommended that the agencies consider
whether they can achieve their environmental goals without imposing burdens on small
businesses through exemptions of small businesses or offering a simpler alternative for small
businesses than the agencies require of big businesses, particularly with regard to permit
requirements and issuing permits. The commenter also recommended that the agencies protect
small business owners by allowing them to come into compliance without fines or enforcement
action, except in cases of willful or repeated violations.
Agencies' Response: The agencies disagree with commenters who asserted that the
agencies' outreach to small businesses and small entities was insufficient. The agencies
conducted extensive stakeholder outreach in developing the final rule, beginning with
soliciting pre-proposal recommendations from members of the public for a 30-day period
from August 4, 2021, to September 3, 2021. In July 2021, the agencies also announced a
schedule for initial public meetings to hear from interested stakeholders on their
perspectives on defining "waters of the United States." 86 FR 41911 (August 4, 2021). In
total, the agencies received over 32,000 recommendation letters from the public during the
pre-proposal period and held six public meeting webinars between August and September
2021. During the proposed rule's 60-day public comment period, the agencies proceeded to
hold three virtual public hearings in January 2022, in addition to participating in a Small
Business Environmental Roundtable hosted by the Office of Advocacy of the U.S. Small
Business Administration and engaging in federalism and tribal consultation, among other
activities. See Final Rule Preamble Section III.C. The agencies ultimately received over
114,000 comments on the proposed rule during the public comment period. The agencies
greatly appreciate and thoroughly considered the feedback received in developing the final
rule, made changes to the rule to address that feedback, and intend to continue to engage
with stakeholders to facilitate implementation of the rule moving forward
The agencies disagree with commenters who asserted that the agencies did not provide
sufficient justification for their certification under the RFA in the proposed rule, or that the
agencies did not analyze the implications and additional costs of the proposed rule on small
entities. The agencies further disagree with commenters who asserted that a SBREFA or
SBAR panel is required for this rule. In Final Rule Preamble Section V.C, the agencies
certify that this rule will not have a significant economic impact on a substantial number of
small entities under the RFA for several reasons. First, as demonstrated in Chapter I of the
Economic Analysis for the Final Rule, this rule would codify a regulatory regime with de
minimis differences from the one currently being implemented nationwide due to the
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vacatur of the 2020 NWPR. See Final Rule Preamble Section V.C for additional rationale
regarding the agencies' certification.
The agencies acknowledge commenters who expressed concern regarding the impact of the
proposed rule on small businesses and small entities, but the agencies disagree with
commenters who asserted the scope of jurisdiction under the proposed rule would be too
broad, or broader than the pre-2015 regulatory regime. In this action, the agencies are
finalizing a definition of "waters of the United States" that is within the agencies' authority
under the Act; that advances the objective of the Clean Water Act; that establishes
limitations that are consistent with the statutory text, supported by the scientific record,
and informed by relevant Supreme Court decisions; and that is both familiar and
implementable. See Final Rule Preamble Section IV.A. The agencies disagree that the final
rule generally represents an expansion beyond the pre-2015 regulatory regime; rather, the
agencies expect that there will be a slight and unquantifiable increase in waters being found
to be jurisdictional under the final rule in comparison to the pre-2015 regulatory regime.
Indeed, as discussed in Section V.A of the Preamble to the Final Rule, this final rule is
generally comparable in scope to the pre-2015 regulatory regime that the agencies are
currently implementing.
In response to commenters who requested specific exclusions in the final rule, see Section 15
of the agencies' response to comments for additional information on exclusions.
5.12 Stakeholder Engagement
Many commenters recommended that the agencies develop a continuous, meaningful, and robust dialogue
with affected stakeholders moving forward with the proposed rule, second rulemaking, and
implementation of this and any future rules by conducting additional outreach. In particular, some
commenters recommended specific stakeholders be consulted extensively in ongoing and future
discussions. These included:
• Vulnerable communities disproportionately impacted by ongoing environmental injustices of
compromised drinking water and increased flooding;
• Tribes;
• Small businesses;
• Agricultural community, including farmers, producers, and ranchers;
• Regulated entities;
• Mining industry;
• Conservation districts (particularly in regard to federal land management decisions that impact
water quality, water yields and timing of those yields, impacts on facilities such as dams,
reservoirs, delivery systems, or monitoring facilities, and other water-related issues);
• Local partners;
• Regional partners;
• State partners;
• Federal partners;
• Stakeholders such as hunters, anglers, outdoor businesses, and outdoor enthusiasts who depend
on access to clean water;
• Conservationists; and
• Foresters.
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Many commenters provided detailed explanations for why and how stakeholders should be engaged in the
proposed rulemaking.
• A commenter asserted that the agencies must listen to stakeholders to develop a durable rule that
protects small streams and wetlands, while also ensuring the predictability and stability that
stakeholders need to thrive.
• A commenter stated that the agencies should conduct meaningful technical discussion with all
impacted sectors associated guidance is prepared and timely implementation can begin once the
rule is finalized.
• Another commenter asserted that they believe because the comment period was only 60 days, the
agencies should have been willing to hold meaningful dialogue with affected stakeholder groups
to fully discuss the rule and welcome a meaningful engagement with the public.
• Another commenter recommended that the agencies develop a "capstone national roundtable" if
any work on the proposed rule continues.
• Another commenter requested that in addition to improving engagement with stakeholders, the
agencies should include sufficient time for public analysis and comment.
• Another commenter asserted that the Clean Water Act, in addition to other federal laws and
orders, requires meaningful and transparent engagement with the states and the public in the
rulemaking process from the very beginning, including engagement with regulated entities, the
scientific community, legal experts, and other government agencies. The commenter suggested
that the agencies under the Obama administration only considered comments from stakeholders
aligned with their ideology and expressed concern that if the agencies follow a similar process,
the result will be a definition that is legally indefensible, unworkable, and lacks predictability for
the regulated community. The commenter asserted that state expertise is invaluable in developing
federal standards and that input from the regulated community is essential to ensuring that the
agencies' rules are transparent, lawful, and predictable. The commenter expressed concern that
the agencies have not been sufficiently transparent in the process thus far.
Several commenters expressed appreciation for the opportunity to engage with the agencies on the
proposed rule. In particular, a few of the commenters expressed appreciation for the stakeholder outreach
that the agencies conducted for the proposed rule, including the listening sessions.
Many commenters expressed concerns that the agencies' stakeholder engagement efforts for the proposed
rule were insufficient. Several commenters explained this concern.
• A commenter indicated that the agencies would benefit from wider stakeholder consultation in the
proposed rule.
• Several commenters stated that seeking input from stakeholders within a reasonable timeframe
should be standard practice.
• Another commenter stated that they were disappointed by what they believed to be the lack of
meaningful outreach prior to the agencies' issuance of the proposed rule, as well as by the
abbreviated comment period.
• Another commenter asserted that they believe the proposed rule's approach to hydrologic
characteristics were confusing and necessitated additional discussion between the agencies and
stakeholders in several areas including, but not limited to, ephemeral rivers and streams,
tributaries, ditches, adjacent waters, and wetlands. The commenter also recommended a western
regional roundtable to continue discussion about the proposed rule.
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• A commenter recommended that the agencies withdraw the proposed rule and instead engage in
an open dialogue with the regulated community, including mining, to formulate a rule that
provides necessary protections for "waters of the United States," conforms to the limits placed by
Congress and the Supreme Court, and allows the industrial minerals sector to continue to operate.
• Another commenter asserted that they believe the agencies conducted insufficient outreach to
small businesses that will be impacted by the proposed rule.
• Another commenter asserted that they believe that when the agencies assessed the 2020 NWPR,
stakeholders and state officials were shut out of the review and approval processes. The
commenter claimed that at the start of the regulatory process for the proposed rule, the agencies
moved forward without requesting input from stakeholders. The commenter asserted that they
believe that had the agencies collaborated with stakeholders, local, and state officials in
conducting a transparent and fact-based review, there would have been no need to begin the
regulatory process for the proposed rule.
• Another commenter expressed concern that they believe the agencies did not include
consideration of regulated entities as well as direction from the Supreme Court in the proposed
rule, stating that the rule could have extremely far-reaching implications.
• Another commenter recommended that in addition to engaging in more robust and meaningful
dialogue with stakeholders, the agencies should focus on developing a rule that adheres to
Congress' intent and respects the limits that Congress and the Supreme Court have placed on the
Clean Water Act's reach.
• Another commenter recommended that the agencies seriously consider the comments and
feedback from stakeholders from the proposed rule before moving forward with the second
rulemaking.
commenters provided input on the agencies' regional roundtables.
Several commenters asserted that the agencies' "regional roundtables" focused not on the
proposed rule, but on identifying regional similarities and differences that would be considered as
part of a separate rulemaking.
A commenter asserted that the agencies' regional roundtables left stakeholders without an
opportunity to provide input to the agencies on the proposed rule. The commenter claimed that if
the previously announced roundtables did not occur due to COVID-19 related concerns, that only
exemplifies the importance of extending the comment period for the proposed rule. The
commenter stated that rulemakings must take pandemic-related difficulties into consideration and
that the agencies cannot use the pandemic as an excuse to limit public input opportunities.
A commenter asserted that while they supported the agencies' plans to host roundtables across
diverse geographies, they felt that the agencies should do more to ensure everyone who would
like to be heard can have a voice in the development of these regulations.
A commenter recommended that the agencies reconsider the roundtable process. The commenter
asserted that the agencies should retain previous public input processes that include all
stakeholders.
A few commenters asserted that any future comment period should be longer than 60-days, specifically:
• A commenter requested that any future comment period for "waters of the United States" be at
least 90-days due to the high importance of this issue, and the economic impact that the proposed
rule and any future actions may have on local landowners and producers.
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• Another commenter requested an additional opportunity to comment on material changes made
following receipt of public comment and the future anticipated decisions of the Supreme Court.
One commenter requested that the agencies provide written responses to feedback received during
stakeholder outreach activities.
Agencies' Response: The agencies agree with commenters who emphasized the value of
stakeholder outreach, including outreach to diverse stakeholder groups, in the rulemaking
process. On June 9, 2021, the agencies announced their intention to revise or replace the
2020 NWPR. The agencies subsequently embarked on an extensive stakeholder outreach
process, including public meetings and federalism and tribal consultations. See Final Rule
Preamble Section III.C. The agencies received over 32,000 recommendation letters from the
public during pre-proposal outreach and over 114,000 comments on the proposed rule
during the public comment period. The agencies also held a public hearing and listening
sessions with tribal, state, and local governments during the public comment period to listen
to feedback on the proposed rule from coregulators and a variety of stakeholders. The
agencies acknowledge that the scope of Clean Water Act jurisdiction is an issue of great
national importance and appreciate feedback and engagement from all stakeholders.
The agencies acknowledge commenters who asserted that the regional roundtables that took
place in May and June 2022 did not allow for stakeholders to provide comment on the
proposed rule. The May and June 2022 regional roundtables took place after the 60-day
public comment period, thus the agencies were unable to consider any comments regarding
the proposed rule. The purpose of the May and June 2022 regional roundtables was to
provide stakeholders and coregulators the opportunity to discuss geographic similarities
and differences and site-specific feedback about the ongoing implementation of "waters of
the United States" by the agencies.
The agencies disagree with commenters who asserted that the agencies conducted
insufficient stakeholder outreach, or that the agencies' rulemaking process lacked
transparency. The agencies conducted extensive stakeholder outreach in developing the
final rule, beginning with soliciting pre-proposal recommendations from members of the
public for a 30-day period from August 4, 2021, to September 3, 2021. In July 2021, the
agencies also announced a schedule for initial public meetings to hear from interested
stakeholders on their perspectives on defining "waters of the United States." 86 FR 41911
(August 4, 2021). In total, the agencies received over 32,000 recommendation letters from
the public during the pre-proposal period and held six public meeting webinars between
August and September 2021. During the proposed rule's 60-day public comment period, the
agencies proceeded to hold three virtual public hearings in January 2022, in addition to
participating in a Small Business Environmental Roundtable hosted by the Office of
Advocacy of the U.S. Small Business Administration and engaging in federalism and tribal
consultation, among other activities. See Final Rule Preamble Section III.C. The agencies
ultimately received over 114,000 comments on the proposed rule during the public comment
period. The agencies greatly appreciate and thoroughly considered the feedback received in
developing the final rule, made changes to the rule to address that feedback, and intend to
continue to engage with stakeholders to facilitate implementation of the rule moving
forward.
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The agencies acknowledge commenters who expressed the desire for continued outreach
and training opportunities to facilitate implementation. The agencies will continue to assess
the need for outreach and training to facilitate consistent implementation of the final rule.
See Section 5.0.3 for the agencies' response to comments regarding a second rulemaking.
The agencies acknowledge the importance of developing an implementable rule that is
informed by a variety of stakeholder perspectives. As discussed further in Final Rule
Preamble Section IV.A.4, the agencies have determined the final rule is both familiar and
implementable. All definitions of "waters of the United States," including the pre-2015
regulatory regime, the 2015 Clean Water Rule, and the 2020 NWPR have required some
level of case-specific analysis. Consistent implementation of the final rule will be aided by
improved and increased scientific and technical information and tools that both the
agencies and the public can use to determine whether waters are "waters of the United
States." See Final Rule Preamble Section IV.G.
The agencies disagree with commenters who stated that the agencies should not have
proposed the revised definition of "waters of the United States" because the 2020 NWPR
was a suitable alternative. In developing the final rule, the agencies thoroughly considered
alternatives to this rule, including the 2020 NWPR, and have concluded that this rule is the
best path forward to meet 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.
In response to commenters who stated that the length of the comment period was
insufficient, see Section 5.1 of the agencies' response to comments on the APA.
5.13 National Environmental Policy Act (NEPA)
5.13.1 Proposed Rule's Compliance with NEPA
Several commenters provided input regarding the proposed rule's compliance with the National
Environmental Policy Act (NEPA).
• A commenter asserted that they believe the proposed rule fails to comply with basic NEPA
requirements for the development of a new regulation. The commenter claimed that a NEPA
regulatory review would provide analysis of the economic impacts, that the proposed rule fails to
provide guidance on how the final rule may be applied, and that the proposed rule fails to address
basic norms of sampling and "good management decision-making."
• Another commenter claimed that the agencies have not prepared either an environmental
assessment or an environmental impact statement for the proposed rule as required by NEPA. The
commenter asserted that there is little doubt that the proposed rule will significantly affect the
quality of the human environment. The commenter claimed that there is no indication in the
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Federal Notice that the agencies conducted any NEPA analysis or engaged in reasoned decision-
making regarding environmental impacts as required by law.
• Another commenter asserted that they believe the agencies were leading the public to believe that
the proposed rule could be implemented without NEPA or similar analysis. The commenter
claimed that this lack of analysis would damage the entire NEPA process as NEPA must be
completed prior to any project starting implementation.
• Another commenter asserted that the NEPA regulations are not confined to section 102(2)(C) and
must apply to the whole of section 102(2). The commenter claimed that the provisions of the
Clean Water Act and the NEPA regulations must be read together as a whole to comply with the
spirit and letter of the law.
• Another commenter asserted that because the Corps completed a NEPA analysis for the 2015
rule, they felt it was clear that NEPA applies to the proposed rule as well.
• Another commenter asserted that they believe the agencies failed to provide information
regarding why the amended definition of "waters of the United States" was needed. The
commenter requested that the agencies respond to questions such as how much of the water
supply is being impacted by unregulated discharges, how polluted the water is that is not
regulated, and what the probability is of the proposed rule impacting pollution, among others. The
commenter claimed that the rulemaking failed to educate the public on benefits and costs from
the proposed rule. The commenter asserted that they believe the proposal did not address possible
negative or positive impacts to a range of uses and this is justification for why a NEPA analysis is
necessary.
A few commenters asserted that the proposed rulemaking should be supported by an environmental
assessment prepared in accordance with NEPA and agency implementing regulations. The commenters
claimed that a NEPA analysis of the effects of the proposed rule, and reasonable alternatives, is necessary
in order for the proposed rule to be legally defensible. The commenters recommended that the agencies
prepare an environmental assessment with public involvement.
A commenter wrote, "The Environmental Protection Agency's and the U.S. Army Corps of Engineers'
quest to achieve a 'durable' definition of the phrase 'waters of the United States' will remain
unachievable if both agencies continue to shirk their statutory responsibilities under the Endangered
Species Act and the National Environmental Policy Act."
Agencies' Response: This final rule is not subject to the requirements of NEPA. Generally,
the Clean Water Act exempts actions of the EPA Administrator from NEPA obligations. 33
U.S.C. § 1371(c)(1) (providing that, with two exceptions not relevant here, "no action of the
[EPA] Administrator taken pursuant to [the CWA] shall be deemed a major Federal action
significantly affecting the quality of the human environment within the meaning of
[NEPA]"). As the Senate Conference Report advised: "If the actions of the Administrator
under [the CWA] were subject to the requirements of NEPA, administration of the Act
would be greatly impeded." S. Conf. Rep. No. 92-1236, reprinted in 1972 U.S.C.C.A.N. 3776,
3827.
The statutory exemption applies here despite the fact that the EPA is promulgating this rule
jointly with the Department of the Army. Nothing in the CWA's exemption from NEPA
limits it to actions taken by the EPA alone. See, e.g., Murray Energy Corp. v. U.S. Dep't of
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Def817 F.3d 261, 273 (6th Cir. 2016) ("That the [2015 Rule] was promulgated jointly by
the EPA Administrator and the Secretary of the Army does not defeat the fact that it
represents action, in substantial part, of the Administrator."); see also Municipality of
Anchorage v. United States, 980 F.2d 1320,1328-29 (9th Cir. 1992) (holding that an action
"does not cease to be 'action of the Administrator' merely because it was adopted and
negotiated in conjunction with the Secretary of the Army and the Corps"). In Municipality
of Anchorage, the Ninth Circuit found that a Memorandum of Agreement between EPA
and the Corps providing guidance for administration of the section 404 permitting program
was exempt from NEPA under 33 U.S.C. § 1371(c). 980 F.2d at 1329. This rule concerns the
jurisdictional scope of the entire Act, implicating the many CWA programs administrated
only by the EPA (the EPA shares its CWA authority with the Army only with respect to
section 404, 33 U.S.C. § 1344). The EPA has the ultimate authority to determine the scope of
CWA jurisdiction, see Administrative Authority to Construe section 404 of the Federal
Water Pollution Control Act, 43 Opp. Att'y Gen. 197 (1979), and this final rule is an "action
of the Administrator." Murray Energy, 817 F.3d at 273.
5.13.2 Relationship between the Proposed Rule and NEPA
Some commenters discussed NEPA in the context of Clean Water Act sections 401, 402, and/or 404.
These commenters generally indicated that changes in "waters of the United States" definitions and/or
expanded jurisdiction could trigger additional regulatory requirements, such as NEPA and other federal
regulations. Most of these commenters raised concerns about additional time and cost needs associated
with NEPA and other regulations.
In the context of Clean Water Act section 404 permitting and recreational opportunities for state and
federal lands, a commenter wrote "Organizations are also very concerned that this level of restructure of
what areas and waters are subject to the heightened analysis of the Clean Water Act would drive a large
scale review of NEPA regulations and existing analysis. The Organizations would have to believe that at
best issues such as trails in lands now made navigable water for part of the year would be the basis for a
programmatic NEPA analysis, such as those previously performed for agricultural concerns. This is
concerning as most land managers we work with simply don't have the time, staff or funding to undertake
this type of analysis. This means recreational opportunities will be lost. These are the type of indirect
impacts from the Proposal that will be hugely economically impactful and are not even addressed in the
Proposal." The commenter went on to discuss impacts to management and maintenance activities and
included photographs of conditions.
A few commenters expressed concern that a finding that a feature is a "water of the United States" could
trigger potentially costly and time-consuming obligations under the requirements of the National
Environmental Policy Act.
Agencies' Response: The agencies acknowledge that a revised definition of "waters of the
United States" that changes the number of activities or projects that require a CWA section
402 or 404 permit could also change the number of actions that require compliance with
other federal laws. However, as discussed earlier in this section, any changes resulting from
the final rule relative to the regulatory regime that the agencies are currently implementing
will be minimal. See the Economic Analysis for the Final Rule as well as the agencies'
response to comments in Section 17.
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5.14 Endangered Species Act (ESA)
5.14.1 Proposed Rule's Compliance with the ESA
A few commenters expressed concerns that the agencies violated the ESA by failing to engage in ESA
section 7 consultation on the proposed rule. Specifically, the commenters stated that the proposed rule
does not provide for Clean Water Act protections over waters important to threatened and/or endangered
species—with one commenter asserting that the proposed rule would cover fewer waters than the pre-
2015 definition—and that the absence of Clean Water Act jurisdiction puts those waters at risk of
degradation or destruction in a manner that could jeopardize listed species, thereby requiring consultation.
One of the commenters emphasized that the proposed rule is one of many recent agency actions to revise
the definition of "waters of the United States," arguing that the rulemaking is thus a "clearly discretionary
action" that may be subject to consultation. The commenter stated that ESA consultation does not require
that the agencies "promulgate a hypothetical perfect rule for the benefit of threatened and endangered
species." Rather, per the commenter, the agencies need only ensure that the action does not jeopardize
listed species, which the commenter stated could be achieved by implementing any recommended
reasonable and prudent alternatives. The commenter also suggested that the agencies' evaluation of
"biological integrity" in making future jurisdictional determinations under the new rule would benefit
from information that could be gained by engaging in ESA section 7 consultation.
Another commenter asserted that case law "reinforces the proposition that a regulation that may affect
endangered species must be the subject of consultation," citing W. Watersheds Project v. Kraayenbrink,
632 F.3d 472, 495 (9th Cir. 2010); Nat'I Parks Conservation Ass 'n v. Jewell, 62 F. Supp. 3d 7 (D.D.C.
2014); Citizens for Better Forestry v. U.S. Dep't ofAgriculture, 481 F. Supp. 2d 1059 (N.D. Cal 2007);
and Washington Toxics Coal. v. U.S. Dep't of Interior, 457 F. Supp. 2d 1158 (W.D. Wash. 2006).
Agencies' Response: Consultation under section 7(a)(2) of the ESA may be required when
an agency exercises power under its enabling act to authorize, fund, or carry out an action
that may affect listed species or designated critical habitat. 16 U.S.C. 1536(a)(2); 50 CFR
402.14(a). The consultation requirement only applies if the agency has discretion under its
enabling legislation to modify the proposed action for the benefit of listed species. See 50
CFR 402.03. For the reasons discussed below, this rulemaking does not trigger consultation
under section 7(a)(2) of the ESA.
This action is a definitional rule that addresses the scope of the agencies' regulatory
jurisdiction as established by the Clean Water Act, which is limited to the "waters of the
United States," 33 U.S.C. 1362(7). Defining the term "waters of the United States" in the
Clean Water Act does not implicate section 7(a)(2) of the ESA. Section 7(a)(2) serves as a
check on affirmative action that an agency takes or authorizes under its enabling act, but
"does not expand the powers conferred on an agency by its enabling act." Platte River
Whooping Crane Critical Habitat Maintenance Trust v. FERC, 962 F.2d 27, 33-34 (D.C. Cir.
1992). In other words, because section 7 confers no substantive powers, "EPA cannot invoke
the ESA as a means of creating and imposing requirements that are not authorized by the
CWA." Am. Forest & Paper Ass'n v. EPA, 137 F.3d 291, 299 (5th Cir. 1998).
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Indeed, the bounds of the agencies' regulatory jurisdiction under the Clean Water Act are
set by the Clean Water Act alone and cannot be expanded or modified by the results of a
consultation under ESA section 7(a)(2), including any findings related to jeopardy of a
listed species. Because the agencies lack authority "to consider the protection of threatened
or endangered species as an end in itself' in determining the bounds of their Clean Water
Act jurisdiction, ESA consultation would serve no purpose and is not required. See Nat'l
Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665, 671 (2007); see also
Alaska Wilderness League v. Jewell, 788 F.3d 1212,1225 (9th Cir. 2015) ("[Determining
whether the statutory criteria have been achieved does not trigger ESA's consultation
requirement." (emphasis in original)). That the agencies' interpretation of their statutory
authority may warrant judicial deference under Chevron or other deference doctrines does
not alter this conclusion. See Center for Food Safety v. Vilsack, 718 F.3d 829, 840 (9th Cir.
2013) (concluding that USDA Animal and Plant Health Inspection Service's (APHIS's)
decision, based on the agency's interpretation of its statutory jurisdiction, was "a
nondiscretionary act that did not trigger the agency's duty to consult under the ESA"
(citing, inter alia, Nat'l Ass'n of Home Builders, 551 U.S. at 665)); see also id. at 832-33
("APHIS's lack of jurisdiction over [Roundup Ready Alfalfa] obviated the need for the
agency to consult with the FWS under the ESA and to consider alternatives to
unconditional deregulation under NEPA."); cf Department of Transportation v. Public
Citizen, 541 U.S. 752, 766 (2004) (accepting agency's "entirely reasonable reading" of
statutory provision in course of concluding that agency had no discretion over the relevant
effects and thus no NEPA analysis was required).
Further, the agencies disagree with suggestions that the proposed rule's impacts would
exceed the ESA's "may affect" threshold and trigger the agencies' section 7(a)(2)
consultation duties. As an initial matter, the final rule is definitional and does not authorize
any activity, let alone one that could affect a listed species or designated critical habitat.
Additionally, the relationship between the final rule and any potential effects from future
third-party activities is too attenuated to establish legal causality. See, e.g., 50 CFR
402.17(b) (providing that "[considerations for determining that a consequence ... is not
caused by the proposed action" include where "(1) [t]he consequence is so remote in time
from the action ... that it is not reasonably certain to occur ... or (3) [t]he consequence is
only reached through a lengthy causal chain that involves so many steps as to make the
consequence not reasonably certain to occur"). Indeed, the agencies note that any harm to
listed species or designated critical habitat resulting from future activities in non-
jurisdictional or jurisdictional waters would result from the activities themselves, not the
final rule. The potentially harmful effects of future third-party projects would also result
from a lengthy causal chain that is too speculative and hypothetical to be meaningfully
analyzed in a consultation on this rulemaking, and the consequences of such projects would
depend on a host of factors unrelated to the final rule including the nature of the proposed
activity and the applicability of other federal, state, and local laws, including section 9 of the
ESA. As such, those future third-party projects—not the final rule—would be the
appropriate actions triggering consultation under the ESA, to the extent that section 7 were
found to apply to those actions. See, e.g., Ctr. for Biological Diversity v. DOI, 563 F.3d 466,
483 (D.C. Cir. 2009) (finding consultation not triggered where agency's approval of leasing
program itself did not affect listed species and species welfare was, "by design, only
implicated at later stages of the program, each of which requires ESA consultation").
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Further, any specific future projects in waters that are determined to be non-jurisdictional
under the final rule are not exempt from the ESA merely because they do not require a
Clean Water Act permit. Any project requiring federal funding or approvals under other
statutes would trigger consultation if listed species or critical habitat may be affected and
the federal agency involved has the discretion to consult. See 50 CFR 402.03, 402.14(a).
Likewise, any project requiring federal funding or approvals in waters that are
jurisdictional under the final rule would trigger consultation if listed species or critical
habitat may be affected and the federal agency involved has the discretion to consult. And
even in the absence of a federal nexus, such future projects would remain subject to section
9's "take" prohibition, 16 U.S.C. 1538(a)(1)(B), along with applicable state, tribal, or local
laws and restrictions.
5.14.2 Relationship between the Proposed Rule and the ESA
A few commenters expressed concern that a finding that a feature constitutes "waters of the United
States" could trigger potentially costly and time-consuming obligations under the requirements of the
Endangered Species Act, such as consultation requirements under ESA section 7.
Agencies' Response: The agencies acknowledge that a revised definition of "waters of the
United States" that changes the number of activities or projects that require a Clean Water
Act section 402 or 404 permit could also change the number of actions that require
compliance with other federal laws. However, as discussed earlier in this section, the
changes resulting from the final rule relative to the regulatory regime the agencies are
currently implementing will be minimal. See the Economic Analysis for the Final Rule as
well as the agencies' response to comments in Section 17.
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