Revised Definition of "Waters of the United States"
Response to Comments Document
Section 2 - Legal Arguments
See the Introductory Section of the Response to Comments (RTC) Document for a discussion of the
Environmental Protection Agency and the Department of the Army's (hereinafter, the agencies ) comment
response process and organization of the eighteen sections.
2.0 Overview of Comments on Legal Issues 3
2.0.1 Significant Nexus Standard 4
2.0.2 Relatively Permanent Standard 8
2.1 Clean Water Act's Statutory Objective 9
2.2 Federal-State Balance 13
2.2.1 Clean Water Act Section 101(b) 13
2.2.2 Relationship between Sections 101(a) and 101(b) 15
2.2.3 Cooperative Federalism 20
2.2.4 State Authority over Aquatic Resources 21
2.3 Legal Authority over Waters 23
2.3.1 Traditional Navigable Waters and the Territorial Seas 24
2.3.1.1 General 24
2.3.1.2 Determining "navigability" 25
2.3.2 Interstate Waters 27
2.3.2.1 General 27
2.3.2.2 State-tribal boundaries 47
2.3.3 Impoundments 49
2.3.4 Tributaries 49
2.3.4.1 General 49
2.3.4.2 Reach analysis 53
2.3.5 Adj acent W etlands 55
2.3.6 "Other Waters" 57
2.3.7 Ditches 60
2.3.8 "Foundational Waters" 61
2.4 Tribal Issues 62
2.4.1 Federal Trust Responsibility 62
2.4.2 Tribal Treaty Rights and Water Rights 63
2.4.3 Importance of Water to Tribes 64
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2.4.4 Miscellaneous Tribal Issues 65
2.5 Supreme Court Decisions 66
2.5.1 Riverside Bayview 67
2.5.2 SWANCC 69
2.5.3 Rapanos 70
2.5.3.1 Plurality' s opinion 71
2.5.3.2 Justice Kennedy' s concurrence 73
2.6 Miscellaneous Court Cases 75
2.6.1 Sackettv.EPA 75
2.6.2 County of Maui v. Hawaii Wildlife Fund 77
2.6.3 Other Cases 78
2.7 Constitutional Arguments 83
2.7.1 Giving sufficient effect to the term "navigable" 83
2.7.2 Commerce Clause 84
2.7.3 Due Process Clause 86
2.7.4 Fifth Amendment 89
2.7.5 Constitutional avoidance 90
2.7.6 Miscellaneous 90
2.8 Other Statutory Arguments 90
2.8.1 Section 101(g) 90
2.8.2 Legislative History 93
2.8.3 Miscellaneous 94
2.9 Miscellaneous Comments on Legal Issues 96
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2.0 Overview of Comments on Legal Issues
The agencies received many comments expressing views on legal issues related to the proposed rule,
including whether the proposed rule is consistent with the U.S. Constitution, the Clean Water Act, and
relevant Supreme Court precedent. Comments on the rulemaking process for the proposed rule, including
whether this rulemaking complies with the Administrative Procedure Act, are summarized and addressed
in the agencies' response to comments, Section 5.
Some commenters expressed the view that the proposed rule is inconsistent with the U.S. Constitution,
the Clean Water Act, and relevant Supreme Court precedent. A number of these commenters argued that
the scope of jurisdiction under the proposed rule goes beyond Congress's Commerce Clause authority or
is otherwise overly broad. Some commenters stated that the proposed rule is unconstitutionally vague and
raises due process concerns or other constitutional issues. Multiple commenters also asserted that the
proposed rule exceeds the agencies' statutory authority under the Clean Water Act, with some
commenters suggesting that the proposed rule misinterpreted or misapplied relevant Supreme Court
precedent interpreting the scope of the Act. Commenters also expressed concern regarding the proposed
rule's consistency with Clean Water Act section 101(b), in addition to raising other issues involving the
relationship between federal and state authority over water resources.
Other commenters asserted that the proposed rule is consistent with the Clean Water Act, including the
Act's objective, text, and legislative history, as well as relevant Supreme Court precedent and the U.S.
Constitution. In addition, many commenters suggested that the proposed rule is supported by a robust
scientific record, including peer-reviewed scientific literature, and informed by the agencies' expertise.
Several commenters expressly asserted that the agencies have discretionary authority to interpret the
ambiguous phrase "waters of the United States" in a reasonable manner, with one commenter citing the
Supreme Court's holding in Nat'I Cable & Telecommunications Ass'n v. BrandXInternet Servs., 545
U.S. 967, 982 (2005) in arguing that the agencies are not bound by Supreme Court case law unless the
Court's interpretation "follows from the unambiguous terms of the statute and thus leaves no room for
agency discretion."
Finally, a few commenters asserted that the Clean Water Act requires broader protections than those
afforded by the significant nexus and relatively permanent tests, suggesting that the breadth of the rule
was insufficient to protect water quality consistent with the statute and/or congressional intent.
Agencies' Response: In this rule, the agencies are exercising their discretionary authority to
interpret the key term "waters of the United States" to mean the waters defined by the
familiar 1986 regulations, with amendments to reflect the agencies' determination of the
statutory limits on the scope of the "waters of the United States" informed by the text of the
relevant provisions of the Clean Water Act and the statute as a whole, the scientific record,
relevant Supreme Court precedent, and the agencies' experience and technical expertise
after more than 45 years of implementing the longstanding pre-2015 regulations defining
"waters of the United States." In sum, this rule generally restores the longstanding and
familiar categories of the 1986 regulations and establishes jurisdictional limitations based
on case-specific application of the relatively permanent standard and the significant nexus
standard to certain categories of waters in the rule. The agencies have determined that the
significant nexus standard is consistent with the text, objective, and legislative history of the
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Clean Water Act, as well as relevant Supreme Court case law and the best available science.
The agencies find that the relatively permanent standard is administratively useful, as it
more readily identifies a subset of waters that will virtually always significantly affect
paragraph (a)(1) waters, but standing alone is insufficient to meet the objective of the Clean
Water Act. See Final Rule Preamble Section IV.C for a comprehensive description of the
final rule.
The final rule's relatively permanent standard and significant nexus standard allow the
agencies to fulfill the statute's and Congress's clearly stated objective in section 101(a) while
also avoiding assertions of jurisdiction that raise federalism concerns. These jurisdictional
limitations are informed by Supreme Court case law and designed to be well within the
agencies' statutory and constitutional limits.
With respect to comments expressing concern that the final rule's jurisdictional standards
do not provide for adequate Clean Water Act protections, the agencies agree that the Clean
Water Act requires broader protection than the relatively permanent standard, but have
concluded, as explained in Section IV.A.3 of the Final Rule Preamble, that the significant
nexus standard is the best construction of the scope of the Clean Water Act.
See the remainder of Section 2 for the agencies' response to comments on specific legal
issues related to the proposed rule, including Section 2.1 (regarding the Clean Water Act's
statutory objective), Section 2.2 (regarding the relationship between federal and state
authority under the Clean Water Act), Section 2.3 (regarding the agencies' legal authority
to assert Clean Water Act jurisdiction over specific types of waters), Section 2.5 (regarding
Supreme Court case law), and Section 2.7 (regarding constitutional arguments).
2.0.1 Significant Nexus Standard
Some commenters stated that the proposed rule's significant nexus standard is consistent with the broad
congressional intent of the Clean Water Act, the Act's statutory objective, and Supreme Court precedent.
Other commenters asserted that the proposed rule's significant nexus standard is inconsistent with the
Clean Water Act and/or Supreme Court precedent, including SWANCC1 and both the plurality's and
Justice Kennedy's opinions in Rapanos. 2 One of these commenters expressed concern over the use of
biological or ecological functions in assessing significant nexus, arguing that this approach ignores factors
such as volume, duration, and frequency of flow that the commenter claimed both the plurality and Justice
Kennedy found were "crucial" to asserting jurisdiction. A few commenters that objected to the proposed
rule's significant nexus standard asserted that the agencies are not obligated under Rapanos to adopt the
significant nexus standard.
Several commenters criticized the proposed rule's significant nexus standard as unlawfully limiting the
scope of the Clean Water Act, suggesting that Congress intended the Act to protect more waters than
would satisfy the proposed rule's significant nexus standard.
1 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC')
2 Rapanos v. United States, 547 U.S. 715 (2006) ^Rapanos")
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One commenter suggested that the proposed rule's use of the phrase "similarly situated waters" represents
a new and "alternative" category for asserting federal jurisdiction that is not supported by the Clean Water
Act or Supreme Court precedent. Specifically, the commenter expressed concern that the proposed rule
would allow the agencies to find jurisdiction wherever a water is "similarly situated."
Another commenter argued that application of the proposed rule's approach to "similarly situated" could
result in the assertion of federal jurisdiction over "isolated water features," which the commenter stated
has been found unlawful by "numerous federal courts," citing San Francisco Baykeeper v. Cargill Salt
Division, 418 F.3d 700, 707 (9th Cir. 2007) and Georgia v. Wheeler, 418 F. Supp. 3d 1336 (S.D. Ga.
2019). The commenter further argued that the proposed rule's "similarly situated" provision would
impermissibly expand federal jurisdiction "to features previously only regulated under the Migratory Bird
Rule," which the commenter asserted was "struck down as . . . unconstitutional" in SWANCC.
Additionally, one commenter criticized the proposed rule's definition of "significantly affect" as "more
than speculative or insubstantial" as being inconsistent with dictionary definitions indicating that "to be
'significant,' the thing described must meet or surpass some threshold degree of importance." This
commenter suggested that the proposed rule's approach to the term "significant" sets too low a bar for
satisfying the significant nexus standard and thereby impermissibly expands the scope of federal Clean
Water Act jurisdiction.
Agencies' Response: As discussed in Section IV.A.3.a.i of the Preamble to the Final Rule,
the agencies have concluded that the significant nexus standard, as the agencies have
established it in this rule, is the best interpretation of the Clean Water Act because it is
consistent with the text, including the Act's statutory objective and statutory structure, the
legislative history and case law, and is supported by the best available science. For
discussion of the final rule's significant nexus standard, including the agencies' findings that
the standard is consistent with the Clean Water Act, see Final Rule Preamble Section IV.A
and the agencies' response to comments in Section 2.1.
The agencies disagree with commenters' suggestions that the rule's significant nexus
standard is inconsistent with Supreme Court case law. As discussed in Final Rule Preamble
Section IV.A, the significant nexus standard is also consistent with prior Supreme Court
decisions, and with every circuit decision that has gleaned a rule of law from that precedent.
In fact, the relevant Supreme Court cases provide additional support for the agencies'
construction of the Clean Water Act to protect waters that meet the significant nexus
standard. Although SWANCC did not involve wetlands, the Court's reasoning in that case
indicates that Clean Water Act coverage of waters, including wetlands, is within the
statutory ambit to the extent that such coverage will protect traditional navigable waters,
the territorial seas, and interstate waters. The significant nexus standard implements that
understanding of the Clean Water Act. The standard recognizes both that protection of
downstream traditional navigable waters, the territorial seas, and interstate waters is the
ultimate objective of the Clean Water Act's discharge prohibition and that the protection of
such waters requires restrictions on discharges into additional waters as well. Thus, the
standard is grounded in Congress's stated intent to "restore and maintain the chemical,
physical, and biological integrity of the Nation's waters." Id. at 759 (quoting 33 U.S.C.
1251(a)). Nonetheless, this final rule is not based on an application of the test for
interpreting Supreme Court decisions found in Marks v. United States, 430 U.S. 188,193
(1977) (Marks). In other words, while the agencies' interpretation of the statute is informed
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by Supreme Court decisions, including Rapanos, it is not an interpretation of the multiple
opinions in Rapanos, nor is it based on an application of the Supreme Court's principles to
derive a governing rule of law from a decision of the Court in a case such as Rapanos where
"no opinion commands a majority." Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring)
(citing Marks v. United States, 430 U.S. 188,193 (1977)). Rather, with this rule, the agencies
are interpreting the scope of the definition of "navigable waters," informed by relevant
Supreme Court precedent, but also based on the text of the relevant provisions of the Clean
Water Act and the statute as a whole, the scientific record, 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.5.b and the agencies' response to comments in Section 2.5 for discussion of issues
related to specific Supreme Court cases, including SWANCC and both the plurality's and
Justice Kennedy's opinions in Rapanos.
The agencies have concluded that the significant nexus standard advances the objective of
the Clean Water Act because it is linked to effects on the water quality of paragraph (a)(1)
waters while also establishing an appropriate limitation on the scope of jurisdiction by
requiring that those effects be significant. See Final Rule Preamble Section IV.A.3. for
further discussion of the basis for the agencies' conclusion.
The agencies disagree with commenters concerned about the use of biological or ecological
functions to assess a significant nexus. The objective of the Act, and, therefore, the scope of
the significant nexus under the statute and under Justice Kennedy's standard is "to restore
and maintain the chemical, physical, and biological integrity of the Nation's waters."
Section 101(a)(emphasis added). Further, as is clear from the Clean Water Act's objective
of protecting the "biological integrity" of the nation's waters and the interim goal of
achieving wherever possible water quality that provides for the protection and propagation
of fish, shellfish, and wildlife, protection of aquatic wildlife is an important aspect of
protecting water quality and is addressed by the Clean Water Act. Among the many other
provisions in which the Clean Water Act addresses biological integrity are Section 102,
comprehensive programs for water pollution control, " [i]n the development of such
comprehensive programs due regard shall be given to the improvements which are
necessary to conserve such waters for the protection and propagation of fish and aquatic
life and wildlife"; Section 104, the Administrator will conduct continuing "comprehensive
studies of the effects of pollution, including sedimentation, in the estuaries and estuarine
zones of the United States on fish and wildlife, on sport and commercial fishing, on
recreation, on water supply and water power, and on other beneficial purposes"; section
301(h), providing that "[n]o permit issued under this subsection shall authorize the
discharge of any pollutant into saline estuarine waters which at the time of application do
not support a balanced indigenous population of shellfish, fish and wildlife"; section 302,
requiring effluent limitations for, among other things, "protection and propagation of a
balanced population of shellfish, fish and wildlife"; section 303(d) requiring states to
"identify those waters or parts thereof within its boundaries for which controls on thermal
discharges under section 301 are not stringent enough to assure protection and propagation
of a balanced indigenous population of shellfish, fish, and wildlife"; section 304, requiring
the Administrator to develop criteria for water quality accurately reflecting the latest
scientific knowledge: "(A) on the kind and extent of all identifiable effects on health and
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welfare including, but not limited to, plankton, fish, shellfish, wildlife, plant life, shorelines,
beaches, esthetics, and recreation which may be expected from the presence of pollutants in
any body of water, including ground water; (B) on the concentration and dispersal of
pollutants, or their byproducts, through biological, physical, and chemical processes; and
(C) on the effects of pollutants on biological community diversity, productivity, and
stability, including information on the factors affecting rates of eutrophication and rates of
organic and inorganic sedimentation for varying types of receiving waters"; and, section
404, authorizing the Administrator to prohibit the specification of any defined area as a
disposal site, if, among other considerations, the discharge of dredged or fill material will
have an unacceptable adverse effect on "shellfish beds and fishery areas (including
spawning and breeding areas), wildlife." In addition, the agencies disagree that assessment
of biological functions means that flow will not be considered. The definition of
"significantly affect" in the final rule specifically identifies "hydrologic factors, such as the
frequency, duration, magnitude, timing, and rate of hydrologic connections, including
shallow subsurface flow" as a factor to be considered when making a significant nexus
assessment. See Final Rule Preamble Section IV.C.9.
The agencies disagree that the use of the term "similarly situated waters" in the rule is new
and disagree that the concept is unsupported by the Clean Water Act or Supreme Court
decisions. See Final Rule Preamble Section IV.A.3. for further discussion of the basis for the
agencies' conclusion that the significant nexus standard as codified in the rule is informed
by relevant Supreme Court precedent, but also based on the text of the relevant provisions
of the Clean Water Act and the statute as a whole, the scientific record, 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 concept of
assessing similarly situated waters for purposes of jurisdiction is not new, as Justice
Kennedy explicitly stated that similarly situated waters should be assessed for a significant
nexus "alone, or in combination." Rapanos, 547 U.S. at 780. Assessing the functions of
identified waters in combination is consistent not only with the significant nexus standard,
as described in Section IV.A of the Final Rule Preamble, but with the science demonstrating
how upstream waters affect downstream waters. Scientists routinely analyze the combined
effects of groups of waters, aggregating the known effect of one water with those of
ecologically similar waters in a specific geographic area, or to a certain scale. The agencies
have assessed similarly situated waters for purposes of jurisdiction for almost 15 years. The
agencies disagree that the use of similarly situated in the rule would impermissibly expand
federal jurisdiction to features previously only regulated under the Migratory Bird Rule. A
key concern the Court in SWANCC identified with the Migratory Bird Rule was that it
asserted jurisdiction without any significant nexus whereas the similarly situated approach
in the rule is clearly a part of the significant nexus assessment. In addition, the rule does not
assert jurisdiction based on the presence of migratory birds.
The agencies have established a definition of "significantly affect" in this rule for purposes
of determining whether a water meets the significant nexus standard to mean "a material
influence on the chemical, physical, or biological integrity of' a paragraph (a)(1) water.
Under this rule, waters, including wetlands, are evaluated either alone, or in combination
with other similarly situated waters in the region, based on the functions the evaluated
waters perform." This rule identifies specific functions that will be assessed and identifies
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specific factors that will be considered when assessing whether the functions provided by
the water, alone or in combination, have a material influence on the integrity of a
traditional navigable water, the territorial seas, or an interstate water. The standard cannot
be met by merely speculative or insubstantial effects on those aspects of those paragraph
(a)(1) waters, but rather requires the demonstration of a "material influence." In this rule,
the agencies have specified that a "material influence" is required for the significant nexus
standard to be met. The phrase "material influence" establishes that the agencies will be
assessing the influence of the waters either alone or in combination on the chemical,
physical, or biological integrity of a paragraph (a)(1) water and will provide qualitative
and/or quantitative information and articulate a reasoned basis for determining that the
waters being assessed significantly affect a paragraph (a)(1) water. See Final Rule Preamble
Section IV.C.9.
2.0.2 Relatively Permanent Standard
Some commenters expressed concern about the proposed rule's reliance on the relatively permanent
standard. A few commenters suggested that the relatively permanent test should never be used alone, but
rather as a subset of the significant nexus test to assure adequate water quality protection that is based in
science. Another commenter asserted that a majority of the Supreme Court rejected the Rapanos
plurality's relatively permanent standard, referencing the four-Justice dissent and Justice Kennedy's
concurrence. This commenter cited United States v. Davis for the proposition that the Supreme Court has
considered dissenting opinions when interpreting fragmented Supreme Court decisions.
Agencies' Response: In the rule, the agencies have adopted the relatively permanent
standard in conjunction with the significant nexus standard because the subset of waters
that meet the relatively permanent standard will virtually always have the requisite
connection to downstream traditional navigable waters, the territorial seas, or interstate
waters to properly fall within the Clean Water Act's scope. The relatively permanent
standard is also administratively useful as it more readily identifies a subset of waters that
will virtually always significantly affect downstream paragraph (a)(1) waters. The final rule
thus utilizes both standards. See Final Rule Preamble Section IV.A.3.
The agencies agree with commenters who expressed concern regarding use of the relatively
permanent standard as the sole test for Clean Water Act jurisdiction, however. The
relatively permanent standard's extremely limited approach, standing alone, has no
grounding in the Clean Water Act's text, structure, or history. It upends an understanding
of the Clean Water Act's coverage that has prevailed for nearly half a century. The
relatively permanent standard also seriously compromises the Clean Water Act's
comprehensive scheme by denying any protection to tributaries that are not relatively
permanent and adjacent wetlands that do not have a continuous surface water connection
to other jurisdictional waters. The exclusion of these waters runs counter to the science
demonstrating how such waters can affect the integrity of downstream waters, including
traditional navigable waters, the territorial seas, and interstate waters. See Final Rule
Section IV.A.3.
The agencies also agree with commenters who stated that only a minority of four Justices in
Rapanos endorsed the agencies' authority to treat waters as jurisdictional only if they satisfy
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the relatively permanent standard. By contrast, a majority of five Justices endorsed the
agencies' authority to treat waters as jurisdictional if they satisfy the significant nexus
standard. See Rapanos, 547 U.S. at 810 & n.14 (Stevens, J., dissenting). Because the four
dissenting Justices would assert jurisdiction if either standard were met (or under the
existing regulations), the agencies concluded shortly after Rapanos was decided that Clean
Water Act coverage can be established under either standard. See Rapanos Guidance.3
2.1 Clean Water Act's Statutory Objective
Many commenters stated that the proposed rule is consistent with the Clean Water Act's objective in
section 101(a) to restore and maintain the chemical, physical, and biological integrity of the nation's
waters, with some suggesting that the Act's legislative history supports taking a broad approach in the
proposed rule to meet that statutory objective. One commenter asserted that a majority of the Supreme
Court (Justice Kennedy plus four dissenting justices) has agreed that water quality is the determining
factor in defining the jurisdictional reach of the Clean Water Act, citing Moses H. Cone Mem 7 Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 17(1983) and Vasquezv. Hillery, 474 U.S. 254, 262 n.4 (1986).
Several commenters further agreed with the agencies' discussion of the Supreme Court's decisions in
Maui and National Association of Manufacturers v. U.S. Department of Defense, 138 S. Ct. 617 (2018)
("Maui") and National Association of Manufacturers v. U.S. Department of Defense, 138 S. Ct. 617
(2018) in the preamble to the proposed rule as affirming that Congress used specific language in the
definitions of the Clean Water Act to meet the Act's statutory objective and that the objective must be
considered in interpreting the Act's key terms such as "waters of the United States."
Some commenters indicated that the proposed rule is a step in the right direction towards furthering the
objective of the Clean Water Act but stated that they wanted the agencies to exert broader federal
jurisdiction. Other commenters suggested that a regulatory scheme that is based on science and
connectivity of waterbodies, not just the "foundational waters,"4 is required to ensure the Clean Water
Act's objective is met. One commenter asserted that the Clean Water Act's objective is not to restore the
water quality of the "foundational waters" but to "completely eliminate water pollution in all of the waters
of the United States," citing for support the Supreme Court's decisions in City of Milwaukee v. Illinois,
451 U.S. 304, 318 (1981); United States v. Riverside Bayview Homes, 474 U.S. 121, 131-35 (1985);
International Paper Co. v. Ouellette, 479 U.S. 481, 486-94 (1987); PUD No. 1 of Jefferson Countyv.
Wash. Dep't of Ecology, 511 U.S. 700, 717 (1994); Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992).
A few commenters stated that the proposed rule's significant nexus standard is inconsistent with the
Clean Water Act's statutory objective because it uses the phrase "restore or maintain the chemical,
physical, OR (emphasis added) biological integrity of the Nation's waters" rather than the language in the
statutory objective to "restore or maintain the chemical, physical, AND (emphasis added) biological
integrity of the Nation's waters" and that this inconsistency creates vagueness and confusion. One of
these commenters argued that in doing so, the proposed rule improperly allows for a finding of significant
3 U.S. EPA and U.S. Army Corps of Engineers, Clean Water Act Jurisdiction Following the U.S. Supreme Court's
Decision in Rapanos v. United States and Carabell v. United States (June 5, 2007)
4 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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nexus based on a feature affecting only one of the parameters rather than all three; this commenter further
argued that the Supreme Court has rejected the notion that a biological or ecological connection alone is
sufficient to support a finding of significant nexus.
One commenter cited Rodriguez v. United States, 480 U.S. 522, 526 (1987) and the plurality's opinion in
Rapanos in arguing that a statute's primary objective should not be turned into a "jurisdictional
statement" and suggested that such an outcome frustrates legislative intent as well as traditional tools of
statutory interpretation. Another commenter asserted that the text of the Clean Water Act's statutory
objective does not "require" that the agencies rely on a significant nexus standard and stated that
"[a]lmost any standard, broader or narrower" could be said to achieve the statutory objective "to some
greater or lesser degree."
Several commenters stated that the agencies' reliance on the Clean Water Act's objective and associated
policy goal of preserving water quality expands federal jurisdiction beyond the authority the Clean Water
Act confers upon the agencies. Another commenter stated that the agencies cannot use science to expand
jurisdiction beyond the scope of the Act. Some commenters asserted that it is unlawful to assert
jurisdiction over non-navigable, intrastate, mostly dry features as "waters of the United States" in order to
achieve the Clean Water Act's objective. Another commenter suggested that the proposed rule seeks to
pursue the Act's statutory objective without regard to the distinction between federal and state authority
or "important limits that Congress placed on federal authority," including by use of the term "navigable"
in "navigable waters."
Agencies' Response: The agencies agree that the definition of "waters of the United States"
must be designed to advance the objective of the Clean Water Act. This term is relevant to
the scope of most federal programs to protect water quality under the Clean Water Act
because the Clean Water Act uses the term "navigable waters" or "waters of the United
States" in establishing such programs.
As discussed in Section IV.A.2 of the Preamble to the Final Rule, the agencies find that this
rule advances the Clean Water Act's statutory objective as it is informed by the best
available science concerning the functions provided by upstream tributaries, adjacent
wetlands, and intrastate lakes, as well as ponds, streams, or wetlands that do not fall within
the other categories to restore and maintain the water quality of downstream traditional
navigable waters, the territorial seas, and interstate waters. This rule will thus protect the
quality of the nation's waters by restoring the important protections for jurisdictional
waters provided by the Clean Water Act, including not only protections provided by the
Act's permitting programs, but also protections provided by programs ranging from water
quality standards and total maximum daily loads to oil spill prevention, preparedness, and
response programs, to the tribal and state water quality certification programs.
For the reasons discussed in Sections IV.A.2 and IV.A.3 of the Preamble to the Final Rule,
however, the agencies also interpret the Act based on factors other than the science and
connectivity of waters, including the text of the statute as a whole and relevant Supreme
Court decisions. In addition, while Congress stated a number of goals in the Clean Water
Act, including that "it is the national goal that the discharge of pollutants into the navigable
waters be eliminated by 1985," section 101(a)(1) of the Clean Water Act, commenters citing
that provision to argue that Congress intended to protect more than traditional navigable
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waters, the territorial seas, and interstate waters misunderstand the scope of the rule. While
the definition of "waters of the United States" is designed to advance the objective of
restoring and maintaining the chemical, physical, or biological integrity of traditional
navigable waters, the territorial seas, and interstate waters—paragraph (a)(1) waters—this
rule covers additional waters that must be protected to safeguard paragraph (a)(1) waters.
All "waters of the United States" receive the full protections of the Clean Water Act.
The agencies disagree with commenters that argued that the rule's significant nexus
standard is inconsistent with the Clean Water Act's statutory objective because it uses the
phrase "restore or maintain the chemical, physical, OR (emphasis added) biological
integrity of the Nation's waters" rather than the language in the statutory objective to
"restore or maintain the chemical, physical, AND (emphasis added) biological integrity of
the Nation's waters" and that this inconsistency creates vagueness and confusion. Congress
intended the Clean Water Act to "restore and maintain" all three forms of "integrity,"
section 101(a), so if any one of them is compromised, then the statute's stated objective
would be contravened. It would be contrary to the plain language of the statute and subvert
the law's objective if the Clean Water Act only protected paragraph (a)(1) waters upon a
showing that there were effects on every attribute of their integrity. The agencies also
disagree that this creates vagueness or confusion as it is consistent with longstanding
practice and clear in the text of the definition of "significantly affect" in the final rule. As
the agencies stated in the Rapanos Guidance: "Consistent with Justice Kennedy's
instruction, EPA and the U.S. Army Corps of Engineers (Corps) will apply the significant
nexus standard in a manner that restores and maintains any of these three attributes of
traditional navigable waters." Rapanos Guidance at 10 & n.35. See Final Rule Preamble
Section IV.C.9.
Further, as discussed in the final rule preamble, the Supreme Court in SWANCC did not
hold that the particular "ecological considerations upon which the Corps relied in Riverside
Bayview," Rapanos, 547 U.S. at 741—i.e., the potential importance of wetlands to the quality
of adjacent waters—were irrelevant to Clean Water Act jurisdiction. Rather, the Court
held that a different ecological concern, namely the potential use of the isolated ponds as
habitat for migratory birds, could not justify treating those ponds as "waters of the United
States." See SWANCC, 531 U.S. at 164-165,171-172. That ecological concern was not
cognizable because it was unrelated to "what Congress had in mind as its authority for
enacting the CWA: its traditional jurisdiction over waters that were or had been navigable
in fact or which could reasonably be so made." Id. at 172. In contrast, in this rule, the
agencies, through the application of the significant nexus standard, provide federal
protections for adjacent wetlands and other categories of waters based on their importance
to the chemical, physical, or biological integrity of traditional navigable waters, the
territorial seas, and interstate waters. In addition, the objective of the Clean Water Act is
"to restore and maintain the chemical, physical, and biological integrity of the Nation's
waters." 33 U.S.C. 1251(a) (emphasis added). Among the means to achieve the Clean Water
Act's objective, Congress established an interim national goal to achieve wherever possible
"water quality which provides for the protection and propagation of fish, shellfish, and
wildlife and provides for recreation in and on the water." 33 U.S.C. 1251(a)(2). Therefore,
the agencies disagree that consideration of biological effects on paragraph (a)(1) waters is
inconsistent with the Clean Water Act.
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Additionally, the agencies disagree with commenters that suggested that the agencies are
relying on the Clean Water Act's statutory objective or on science to expand federal
jurisdiction beyond the authority granted to the agencies by Congress. The rule does not
establish jurisdiction beyond the scope of the Clean Water Act. 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 this
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.
By design, the significant nexus standard permits jurisdiction over waters only if they
significantly affect the waters over which Congress has unquestioned authority. As a result,
some waters that are non-navigable, intrastate, and flow only during certain time periods
may be jurisdictional, but only if they meet the final rule's relatively permanent standard or
the significant nexus standard.
Indeed, the agencies find that this rule both advances the objective of the Clean Water Act
in section 101(a) and respects the role of tribes and states in section 101(b).5 The rule
appropriately draws the boundary of waters subject to federal protection by limiting the
scope to the protection of upstream waters that significantly affect the integrity of waters
where the federal interest is indisputable—the traditional navigable waters, the territorial
seas, and interstate waters. Waters that do not implicate the federal interest in these
paragraph (a)(1) waters are not included within the scope of federal jurisdiction. The scope
and boundaries of the definition therefore reflect the agencies' considered judgment of both
the Clean Water Act's objective in section 101(a) and the congressional policy relating to
states' rights and responsibilities under section 101(b).
The agencies also disagree with commenters that stated "[ajlmost any standard, broader or
narrower" could be said to achieve the statutory objective "to some greater or lesser
degree." First, the Supreme Court in Maui clearly rejected some interpretations of the
scope of Clean Water jurisdiction because they failed to advance the objective of the Act.
Second, the agencies have concluded 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
5 While Clean Water Act section 101(b) does not specifically identify tribes, the policy of preserving states'
sovereign authority over land and water use is equally relevant to ensuring the primary authority of tribes to address
pollution and plan the development and use of tribal land and water resources.
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Final Rule Preamble Section IV.B.3. Finally, in the final rule, the agencies are exercising
their authority to construe "waters of the United States" to mean the waters defined by the
familiar 1986 regulations with amendments to reflect the agencies' interpretation of the
statutory limits on the scope of the "waters of the United States," supported by
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 regulations defining "waters of the United States." Based on these
considerations, the agencies have concluded that the significant nexus standard in this rule
is the best interpretation of section 502(7) of the Act.
2.2 Federal-State Balance
2.2.1 Clean Water Act Section 101(b)
Many commenters asserted that the proposed rule would diminish the importance of and infringe on
states' traditional authority to regulate their land and water resources, contrary to Congress's policy in
Clean Water Act section 101(b) "to recognize, preserve, and protect the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including
restoration, preservation, and enhancement) of land and water resources." These commenters argued that
the language in Clean Water Act section 101(b) demonstrates that Congress recognized that states have a
primary role in protecting their waters and that Congress sought to preserve and protect both the
responsibilities and rights of states with respect to managing their land and water resources; as such, the
commenters asserted, section 101(b) acts as a limit on federal Clean Water Act jurisdiction. Multiple
commenters stated that the definition of "waters of the United States" must thus reflect and/or give
appropriate weight to Congress's intent that states have primary authority over water resources. One
commenter requested that the agencies include "a clear statement recognizing that states retain authority
and primary responsibility over land and water resources to carry out the overall objectives of the Clean
Water Act."
Some commenters asserted that an expansion in federal jurisdiction under the proposed rule would go
against both Clean Water Act section 101(b) and the will of Congress. Other commenters stated that an
expansion of federal jurisdiction under the proposed rule would contradict general federalism principles
expressed in the Clean Water Act, which one commenter claimed would result in preempting and
diminishing state statutes, rules, and enforcement related to water quality. Another commenter asserted
that the proposed rule raises constitutional issues because it would encroach on the traditional power of
states to regulate land and water resources. One commenter suggested that the proposed rule's approach
to the "other waters" category—including the removal of language related to features having an effect on
interstate or foreign commerce and the use of a "vague" significant nexus standard—would result in the
assertion of jurisdiction over isolated waters and wetlands and "is clear evidence of the proposed rule's
intrusion into state and local land use authority." In contrast, a different commenter asserted that the
proposed rule "in no way impinges on the state authority reserved" in Clean Water Action section 101(b)
and instead recognizes the partnership between the federal and state governments to protect water quality.
Other commenters argued generally that the agencies' interpretation of section 101(b) in the proposed rule
conflicts with Supreme Court precedent. One commenter suggested that the Rapanos plurality's relatively
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permanent test would properly respect states' responsibility and right to manage water resources within
their borders, whereas a rule based on Justice Kennedy's significant nexus test would impinge on this
traditional state authority. Another commenter asserted that the district court in Georgia v. Pruitt, 326 F.
Supp. 3d 1356 (S.D. Ga. 2018) expressed concern that states would lose sovereignty over certain
intrastate waters under the 2015 Clean Water Rule and argued that the proposed rule would "lead to a
similar loss of sovereignty for states because there will be significantly more federal regulation of waters
and wetlands under the broad jurisdictional categories in the proposed rule."
Multiple commenters expressed support for the view that Clean Water Act section 101(b) serves to
recognize that states have an important role to play in implementing the Act's programs, with some
commenters stating that section 101(b) also preserves the ability of states to regulate beyond standards
established under the Clean Water Act.
Other commenters suggested that section 101(b) is not intended to serve as a limit on federal jurisdiction.
One of these commenters claimed that the agencies improperly relied on section 101(b) to limit the scope
of "waters of the United States" under the proposed rule in a manner that is contrary to the statute,
Supreme Court precedent, congressional intent, and the agencies' longstanding interpretations of the Act.
Agencies' Response: The agencies disagree with commenters who asserted that the
proposed rule was contrary to Congress's policy in Clean Water Act section 101(b). Like
the proposed rule, the final rule reflects consideration of the statute as a whole, including
the objective of the Clean Water Act in section 101(a) and the policies of the Act with
respect to the role of states and tribes in section 101(b). The agencies find that this rule both
advances the objective of the Clean Water Act in section 101(a) and respects the role of
states and tribes in section 101(b).6 The rule appropriately draws the boundary of waters
subject to federal protection by limiting the scope to the protection of upstream waters that
significantly affect the integrity of waters where the federal interest is indisputable—the
traditional navigable waters, the territorial seas, and interstate waters. Waters that do not
implicate federal interest in these paragraph (a)(1) waters are not included within the scope
of federal jurisdiction. The scope and boundaries of the definition therefore reflect the
agencies' considered judgment of both the Clean Water Act's objective in section 101(a)
and the congressional policy relating to states' rights and responsibilities under section
101(b).
The agencies have carefully, and appropriately, considered section 101(b) and have
reasonably concluded that restoring and maintaining the chemical, physical, and biological
integrity of the nation's waters is the Clean Water Act's primary goal, set forth in the first
words of the first section of the statute. And the statute is designed to address that objective
through a "comprehensive" federal program of pollution control. 33 U.S.C. 1252(a).
Achieving Congress's purposes requires regulation of discharges both into traditional
navigable waters, the territorial seas, and interstate waters and into other waters whose
"interconnection [s]" with those waters make them an appropriate subject of federal
concern. See Rapanos, 547 U.S. at 780 (Kennedy, J., concurring in the judgment); see 1971
6 While Clean Water Act section 101(b) does not specifically identify tribes, the policy of preserving states'
sovereign authority over land and water use is equally relevant to ensuring the primary authority of tribes to address
pollution and plan the development and use of tribal land and water resources.
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Senate Report at 77 (noting that "[w]ater moves in hydrologic cycles and it is essential that
discharge of pollutants be controlled at the source") (quoted in Riverside Bayview, 474 U.S.
at 133). Federal protection of the Chesapeake Bay, for example, would be fundamentally
incomplete and ineffectual if polluters could discharge fill into the interconnected network
of adjacent wetlands in the same watershed. The significant nexus standard identifies those
wetlands that implicate the Clean Water Act's core concern of safeguarding traditional
navigable waters, the territorial seas, and interstate waters.
The agencies also disagree with commenters who argued that the agencies' interpretation of
Clean Water Act section 101(b) conflicts with Supreme Court precedent. The agencies'
interpretation and consideration of section 101(b) in this rulemaking is consistent with
Supreme Court precedent. The Supreme Court has described, on numerous occasions,
section 101(b) as creating a partnership between the federal and state governments, in
which the states administer programs under federally mandated standards and are allowed
to set even more stringent standards. The final rule is consistent with Supreme Court case
law. See Section IV.A.3.b of the Final Rule Preamble for further discussion of Supreme
Court precedent related to Clean Water Act section 101(b) and Section IV.C.2.b.iii.2 of the
Final Rule Preamble for further discussion of the decision in Georgia v. Wheeler, 418 F.
Supp. 3d 1336 (S.D. Ga. 2019).
The agencies agree with commenters who stated that Clean Water Act section 101(b)
recognizes that states have an important role to play in implementing the Act's programs
and regulating beyond the standards established under the Clean Water Act.
The agencies disagree with commenters who asserted that the agencies improperly relied on
Clean Water Act section 101(b) to limit the scope of "waters of the United States." The final
rule reflects consideration of the statute as a whole, including the objective of the Clean
Water Act in section 101(a) and the policies of the Act with respect to the role of states and
tribes in section 101(b). The policy in section 101(b) is both important and relevant to the
agencies' defining an appropriate scope of "waters of the United States." Consistent with
the text of the statute and as emphasized by the Supreme Court, federal jurisdiction under
the Clean Water Act has limits. As explained in the preamble of the final rule, Clean Water
Act jurisdiction encompasses (and is limited to) those waters that significantly affect the
indisputable federal interest in the protection of the paragraph (a)(1) waters—i.e.,
traditional navigable waters, the territorial seas, and interstate waters. And consistent with
the section 101(b) policy, where protection (or degradation) of waters does not implicate this
federal interest, such waters fall exclusively within state or tribal regulatory authority,
should they choose to exercise it.
See Section IV.A.3.b of the Final Rule Preamble further discussion of the agencies'
consideration of Clean Water Act sections 101(a) and 101(b).
2.2.2 Relationship between Sections 101(a) and 101(b)
Some commenters argued that the agencies must read sections 101(a) and 101(b) of the Clean Water Act
together in a manner that recognizes states' traditional authority over their water resources. A few
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commenters stated that when read together, section 101(b) is a policy (which they defined as an action to
reach a goal) that informs the objective of section 101(a) (which they defined as something to aspire to,
like a goal), and contended that the agencies have not put enough consideration into section 101(b) in
developing the proposed rule. One commenter suggested that the existence of Executive Order 13132 on
"Federalism" indicates that the agencies are incorrect in taking the position that the "federalism policies"
in section 101(b) are secondary to the "environmental policies" in section 101(a). Another commenter
asserted that the cooperative federalism principles underlying section 101(b) are more relevant to the
jurisdictional inquiry associated with defining "waters of the United States" than the statutory objective in
section 101(a).
One commenter criticized the agencies for, in the commenters' view, deciding to give more weight to
section 101(a) over section 101(b) merely because it was cited more often in Supreme Court rulings. This
commenter contended that the frequency with which a section is cited in case law does not provide a basis
to prioritize congressional goals and that the agencies cite no legal authority to support doing so. The
same commenter argued that the agencies cannot prioritize one congressional goal over another and that
all goals must be addressed during the rulemaking process. Similarly, one commenter argued that the
objective of the Clean Water Act in section 101(a) "to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters" does not give the agencies authority to expand federal
jurisdiction and infringe upon states' traditional authority over their waters expressed in section 101(b).
Other commenters expressed support for the agencies' approach to sections 101(a) and 101(b) in the
proposed rule. One commenter suggested that the proposed rule properly balances the water quality
objective of Clean Water Act section 101(a) with the state authority reserved in section 101(b). Another
commenter stated that the proposed rule appropriately places greater emphasis on the Clean Water Act's
objective rather than on section 101(b) of the Clean Water Act. A different commenter argued that the
2020 NWPR's dependence on restoring states' authority was misplaced and agreed with the agencies'
interpretation of section 101(b) as supporting the objective of the Clean Water Act.
Agencies' Response: The agencies agree with commenters who supported the agencies'
approach to Clean Water Act sections 101(a) and 101(b). Clean Water Act section 101(a)
states: "[t]he objective of this chapter is to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters." Clean Water Action section 101(b) states:
It is the policy of the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate pollution, to
plan the development and use (including restoration, preservation, and
enhancement) of land and water resources, and to consult with the Administrator in
the exercise of his authority under this chapter. It is the policy of Congress that the
States manage the construction grant program under this chapter and implement
the permit programs under sections 1342 and 1344 of this title. It is further the
policy of the Congress to support and aid research relating to the prevention,
reduction, and elimination of pollution and to provide Federal technical services
and financial aid to state and interstate agencies and municipalities in connection
with the prevention, reduction, and elimination of pollution.
The agencies have carefully considered the policy in section 101(b) as it relates to the Clean
Water Act's objective in section 101(a) and carefully balanced both section of the Act in the
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final rule. See Section IV.A.3.b of the Final Rule Preamble for a thorough discussion of the
agencies' approach to balancing Clean Water Act sections 101(a) and (b) in the final rule.
In addition to the discussion of this issue in the final rule preamble, the agencies also note
that CWA section 101(b) further recognizes the very important role that the states play in
achieving the Act's objective. "Pollution" is a defined term in the Act that means "man-
made or man-induced alteration of the chemical, physical, biological, and radiological
integrity of water" (section 502(19)) and has a broader scope than the "discharge of a
pollutant" subject to regulatory jurisdiction under the Clean Water Act (e.g., nonpoint
sources of pollution). The agencies conclude that Congress's use of the broad term
"pollution" in section 101(b) indicates that the policy in this section is intended to recognize
and preserve, among other things, states' authority to prevent, reduce, and eliminate all
kinds of pollution, including pollution falling outside the scope of federal regulatory
authority. Importantly, this includes all non-point sources, which indisputably may (and do)
significantly affect the integrity of traditional navigable waters, the territorial seas, and
interstate waters. The agencies' definition of "waters of the United States" does not
implicate, let alone impinge, on such state authorities.
The first sentence of section 101(b) also refers to states' "primary" role in preventing,
reducing, and eliminating pollution—a word that is not incompatible with overlapping
federal and state authority over waters which, under the final rule, implicate core federal
interests. Thus, the text of section 101(b) is best read not as a general policy in favor of
preserving for states a zone of exclusive regulatory authority based on federalism principles
to choose whether or not to regulate regardless of the impact of those decisions on
achievement of the Act's objective.
In developing the final rule, the agencies also considered the language in section 101(b)
referring to states' rights and responsibilities "to plan the development and use (including
restoration, preservation, and enhancement) of land and water resources." Planning the
development, use, and protection of land and water resources is indisputably a traditional
state function (e.g., zoning, allocation and administration of water rights, exercise of
eminent domain, preservation of lands and waters). Congress's recognition of the states'
primary role in this domain does not state or even suggest a policy to limit Clean Water Act
jurisdiction over waters, as would be covered under the final rule, implicating the core
federal interest in protecting traditional navigable waters, the territorial seas, and interstate
waters.
Indeed, any implication to the contrary is dispelled by the remainder of section 101(b),
which, among other things, expressly recognizes states' role in administering the federal
permitting programs under section 402 of the Act:
It is the policy of Congress that the states manage the construction grant program under
this Act and implement the permit programs under sections 402 and 404 of this Act. It is
further the policy of the Congress to support and aid research relating to the prevention,
reduction, and elimination of pollution, and to provide Federal technical services and
financial aid to state and interstate agencies and municipalities in connection with the
prevention, reduction, and elimination of pollution.
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Thus, in the agencies' view, the text of section 101(b) as a whole reflects not a general policy
of deference to state regulation to the exclusion of Federal regulation, but instead a policy
focused on preserving the responsibilities and rights of states to work to achieve the
objective of the Act by preventing, reducing and eliminating pollution generally, including,
but not limited to, through their authority over any source of pollution subject to state law,
consulting with the Administrator in the exercise of his Clean Water Act authority, and
implementing the Act's regulatory permitting programs, in partnership and with technical
and financial support from the Federal government.
Further, CWA section 101(b) should not be read in isolation from the rest of the Clean
Water Act. Reviewing the statute as a whole reveals that Congress itself gave direction to
the agencies on how it expected them to achieve section 101(a)'s objective and implement
section 101(b)'s policy. Following section 101, the remainder of the Act provides extensive
and detailed instruction on how Congress expected its objective, goals, and policies to be
met through the Act. Specifically, with regard to its objective and goals in section 101(a),
Congress laid out a series of detailed programs (e.g., the section 303 water quality standards
program, the section 402 discharge elimination program, and the section 404 dredge and fill
program) designed to meet that objective. So too, Congress gave detailed instructions on
how it intended to apply its policy of preserving the primary role of the states. Specifically,
as referenced explicitly in section 101(b), it authorized states to implement the key
permitting programs under sections 402 and 404 of the Act—i.e., their authority to assume
administration of the federal regulatory program for discharges of pollutants under
sections 402(b) and 404(g). The Clean Water Act likewise delineates a role for states in
implementing numerous other Clean Water Act programs central to achieving the Act's
objective, including the water quality standards program and impaired waters and total
maximum daily load program in section 303. Section 401 grants primary authority to states
and authorized tribes to grant, deny, or waive certification of proposed federal licenses or
permits that may discharge into "waters of the United States" within their borders. And
under section 510, unless expressly stated, nothing in the Clean Water Act precludes or
denies the right of any state or tribe to establish more protective standards or limits than
the Act. As described above, the Clean Water Act further assigns exclusive authority to the
states to regulate non-point sources.
Thus, the agencies choose not to read the policy of section 101(b) as essentially a free-
floating instruction or license for the agencies to interpret or implement other sections of
the Act in a manner that impedes achievement of its overall objective, in particular
definitional provisions like "waters of the United States" which are central to
administration of the entire statute and therefore achieving that objective. To the contrary,
Congress itself defined the contours of how it expected the agencies to both achieve its
objective in section 101(a) and implement its policy in section 101(b) through the rest of the
provisions of the Act. Notably, a narrow definition of "waters of the United States" would
not uniformly boost state authority as that definition is foundational to the scope of all of
these programs in which the states are assigned authority. Indeed, with regard to section
401, a narrow definition would actually limit states' ability to protect waters within their
borders.
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In addition, section 101(a) has also been "oft-quoted" by the courts, including the U.S.
Supreme Court, thus further demonstrating the importance of that section. See, e.g.,
National Association of Manufacturers v. Department of Defense, et al, 138 S. Ct. at 624
("Congress enacted the Clean Water Act in 1972 'to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.' 33 U.S.C. 1251(a)."); see section
IV.A.2 of the final rule preamble (summarizing Supreme Court case law surrounding the
Act's statutory objective).
Further, in passing the 1972 Amendments, Congress itself acted to rebalance its approach
to protecting water quality—shifting from a statutory scheme dependent on state action to
one rooted in a federal foundation, providing a uniform floor of water quality protection
and leaving space for states to choose whether to regulate more stringently. See Dubois v.
U.S. Dep't of Agriculture, 102 F.3d 1273,1300 (1st Cir. 1996) ("Simply put, the CWA
provides a federal floor, not a ceiling, on environmental protection."). The agencies in the
final rule interpret section 101(b) in the context of this history and Congress's deliberate
choice to restructure the statute to move away from its previous reliance on state-led water
pollution control.
An overly narrow definition of jurisdictional waters threatens a return to pre-1972 days
excluding from federal protection waters that significantly affect traditional navigable
waters, the territorial seas, and interstate waters and risks removing from the statutory
scheme instances of interstate pollution the 1972 amendments were designed to address. In
response to concerns expressed by commenters regarding protection of downstream states
from out-of-state pollution, the agencies in the 2020 NWPR simply stated: "The CWA
provides a number of opportunities for the EPA to mediate disputes among states, though
the remedies available for cross-boundary water pollution disputes over non-jurisdictional
waters depends upon the parties and the issues of the case. As they do today, under the final
rule remedies for pollution disputes among states that do not implicate CWA sections
319(g), 401, or 402 would likely derive from federal common law under the Supreme
Court's original jurisdiction. Remedies for disputes between a state and a public or private
party would likely derive from state or federal common law and be heard by state or federal
courts." NWPR, Response to Comments, Topic 1 Legal Arguments at 26. But directing
states and other parties to utilize state or federal common law to resolve such disputes
overlooks "Congress' intent in enacting the [1972] Amendments ... to establish an all-
encompassing program of water pollution regulation," City of Milwaukee, 451 U.S. at 318,
and that "the need for such an unusual exercise of lawmaking by federal courts disappears"
when Congress passes legislation that "speak[s] directly" to the question at issue, as
Congress did in passing the Clean Water Act. Id. at 317-18.
The agencies conclude that the jurisdictional line-drawing reflected in the final rule better
aligns with sections 101(a) and 101(b) of the Act than the 2020 NWPR. The preamble to the
final 2020 NWPR cited section 101(b) as a justification, in part, for its specific definitions of
jurisdictional tributaries and adjacent wetlands. One of the most environmentally
significant decisions in the 2020 NWPR was its categorical exclusion of all ephemeral
streams from Clean Water Act jurisdiction. The agencies cited section 101(b) as a basis for
this exclusion as "respecting State and Tribal land use authority over features that are only
episodically wet during and/or following precipitation events." 85 FR 22319. The agencies'
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explanation, however, did not link the agencies' line-drawing to the text or purpose of
section 101(b). Nor do the agencies, at this time, see any linkage between the flow regime of
ephemeral waters and the nature or extent of state authorities referenced in section 101(b).
Indeed, as discussed elsewhere, available science unequivocally demonstrates that
ephemeral tributaries can implicate the important federal interest in the protection of the
integrity of traditional navigable waters, the territorial seas, and interstate waters.
Likewise, in categorically excluding ephemeral waters, the agencies in the NWPR cited
section 101(a), but again did not explain how their decision related to or advanced the Act's
objective. 85 FR 22277. In contrast, informed by the policy in section 101(b) and the Act's
objective in section 101(a), the final role appropriately distinguishes between jurisdictional
and non-jurisdictional tributaries based on whether a tributary implicates core federal
interests, in which case it is covered by the rule, or fails to do so, in which case its protection
and management is left to states and tribes.
The NWPR similarly relied upon section 101(b) as a basis for its definition of adjacent
wetlands, in particular the decision to exclude from consideration subsurface hydrologic
connection between a wetland and an adjacent water when determining jurisdiction,
stating: "[BJalancing the policy in CWA section 101(a) with the limitations on federal
authority embodied in CWA section 101(b), the agencies are finalizing the definition of
'adjacent wetlands' that does not include subsurface hydrologic connectivity as a basis for
determining adjacency." Id. at 22313. Again, the NWPR did not explain how excluding
consideration of subsurface hydrologic connections related to or derived from section
101(b), and the agencies do not now discern such a linkage. And as with the definition of
tributaries, the NWPR did not explain how this choice related to or advanced the objective
of the Act. In contrast, the final rule's approach to adjacent wetlands, like its approach to
jurisdictional tributaries, gives due consideration to the policy in section 101(b) and the
objective in section 101(a) by tethering jurisdiction to whether the wetland implicates
traditional navigable waters, the territorial seas, and interstate waters with a demonstrated
federal interest.
2.2.3 Cooperative Federalism
Several commenters suggested that the proposed rule would expand federal jurisdiction in a manner that
would conflict with principles of cooperative federalism. One commenter stated that through cooperative
federalism, states partner with the agencies to protect water quality and argued that the proposed rule does
not support this partnership. Another commenter asserted that "Congress conceived of the CWA as a
partnership between the states and the federal government, with the federal government primarily playing
a supporting role in the states' efforts to protect their waters." A few commenters stated that the Clean
Water Act is based on cooperative federalism and that the agencies should thus draft a rule with these
principles in mind. Some commenters suggested that improving and maintaining water quality is best
achieved through partnerships and that the agencies should work with state and local governments in
developing a definition of "waters of the United States."
Other commenters asserted that the proposed rule supports cooperative federalism. As an example, one of
these commenters argued that the agencies' interpretation of section 101(b) correctly identifies states as
active partners in implementing the Clean Water Act, such as through issuing state certifications under
section 401. Another commenter contended that codifying the pre-2015 regulatory regime would provide
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stability to regulatory programs and thereby support cooperative federalism in a manner that they felt was
lacking under implementation of the Navigable Water Protection Rule in their state. This commenter
contended that a broad definition of "waters of the United States" is important in protecting certain types
of waters because their state relies on the staff and expertise of the Corps to review permits.
Agencies' Response: The agencies disagree with commenters who contended that the
proposed rule conflicted with principles of cooperative federalism. The final rule reflects
consideration of the statute as a whole, including the objective of the Clean Water Act and
the policies of the Act with respect to the role of tribes and states. Contrary to the assertion
of one commenter, the final rule supports partnerships between states and the agencies to
protect water quality. The final rule continues the agencies' work with states to implement
the Act and the agencies' practice of providing states with technical and financial
assistance. The agencies disagree with commenters who asserted that Congress conceived of
the Clean Water Act as a partnership where the federal government played a supporting
role to the states. Such an interpretation would be inconsistent with Congress's enactment
of the Clean Water Act which was driven by the failures of the prior statutory scheme that
relied primarily on state enforcement of state water quality standards and proved to be
inadequate.
See Section IV.A.3.b of the Final Rule Preamble for further discussion of the agencies'
balancing of federal and state roles under the Clean Water Act.
2.2.4 State Authority over Aquatic Resources
Many commenters argued that the agencies misinterpret Supreme Court decisions in the proposed rule in
a manner that expands federal jurisdiction over waters and features that should be or are regulated by
states or local governments, including isolated wetlands, flood control features, ephemeral and
intermittent streams, ditches, canals, irrigation systems, stormwater features and management,
and other waters. Some commenters further asserted that states are best positioned to regulate and manage
water resources because they have a better understanding of local conditions, such as water resource
needs and regional variations (e.g., geography, weather, climate, hydrology, topography). One commenter
argued that EPA's refusal to withdraw any state's authority to administer the NPDES permitting program,
despite numerous petitions to the agency to do so, shows that EPA "unquestionably recognizes that states
are already capable stewards of water quality and proven partners in furtherance of the CWA's
objectives."
Additionally, some commenters asserted that states are better situated to regulate waters within their
borders because states' standards and policies are consistent with or more stringent than the Clean Water
Act. Several states also described how their regulations and standards are consistent with or more
restrictive than the Clean Water Act, including Alaska, Montana, Nevada, North Dakota, Oklahoma,
Texas, and Wyoming. A few commenters suggested that states and local governments should adopt more
stringent regulations than the Clean Water Act.
Multiple commenters argued that a water that is not under federal jurisdiction does not necessarily lack
environmental protections because such waters may be subject to state, local, or tribal regulations. One
commenter stated the Clean Water Act does not claim jurisdiction over agricultural features distant from
relatively permanent flowing tributaries, rather the water quality in these features is protected through
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other programs. Several commenters asserted that the agencies need to work with state authorities to
reduce redundancy and should respect state and local jurisdictions' authority to manage their own water
resources. A few commenters stated that the Commerce Clause, Tenth Amendment, and section 510 of
the Clean Water Act protect a state's authority over its waters.
Other commenters stated that some states need to rely on federal jurisdiction to protect their waters. One
of these commenters asserted that the 2020 NWPR reduced the scope of waters subject to federal
jurisdiction and that as a result, the state could not exercise its authority under Clean Water Act section
401 to address water quality impacts from a hydropower project licensed by the Federal Energy
Regulatory Commission. Another commenter argued that states have limited budgets and need the
support of the agencies to help regulate waters cost-effectively.
One commenter asserted that 36 states have laws that prevent state-level environmental agencies from
developing regulations that are more restrictive than federal standards and thus rely on the federal.
Another commenter contended, however, that it is the responsibility of states to regulate their waters and
suggested that states that do not have this authority should look to their state legislatures, not the federal
government.
A different commenter suggested that the Prior Appropriation Doctrine gives states jurisdiction over
waters within their boundaries and precludes federal jurisdiction over waters that are not navigable.
Finally, some commenters stated that the state of Florida continues to apply the vacated 2020 Navigable
Waters Protection Rule (NWPR) in the implementation of its Clean Water Act section 404 dredge and fill
permitting program and that this is having adverse environmental effects; these commenters contended
that this demonstrates that the state is not protecting its waters effectively. Other commenters argued that
the 2020 NWPR recognized the authority of states to regulate their waters and the limits of federal
jurisdiction over these waters.
Agencies' Response: This rule does not diminish any state authorities with respect to
regulation of water bodies. States and tribes may establish more protective standards or
limits than the Clean Water Act to manage waters subject to Clean Water Act jurisdiction
or waters that fall beyond the jurisdictional scope of the Act and may choose to address
special concerns related to the protection of water quality and other aquatic resources
within their borders. Nothing in this final rule limits or impedes any existing or future state
or tribal efforts to further protect their waters.
The agencies agree with commenters that states are co-partners with EPA and the Corps
under the Clean Water Act. This partnership is evident in the many provisions that
incorporate or rely on state authorities, such as water quality standards, state NPDES
programs, and section 401 state water quality certifications. This rule complements state
authorities by clearly establishing, consistent with Congressional intent under the Clean
Water Act, which waters are subject to federal protections due to their significant impact
on traditional navigable waters, the territorial seas, and interstate waters, and leaving other
waters subject to decision making by state, tribal and local authorities. Many states and
tribes, for example, regulate groundwater, and some others protect wetlands that are vital
to their environment and economy but that are outside the scope of the Clean Water Act.
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EPA thus agrees with commenters that this rule enhances state authorities under Section
401 of the Act.
The agencies also agree with commenters that noted that a lack of federal jurisdiction does
not necessarily mean that a water body is completely unprotected. As evidenced by the
comments, state, tribal and local protections for water bodies vary considerably. This rule
ensures that there is certainty provided in protections for those water bodies for which the
federal interest is significant and leaves other water bodies to the more variable protections
of state, tribal or local law. As discussed in the preamble, the rule that this rule replaces, the
NWPR, did not provide an appropriate dividing line between these authorities. In
developing the final rule, the agencies thoroughly considered alternatives to this rule,
including the 2020 NWPR, and have concluded that this final rule best accomplishes the
agencies' goals to promulgate a rule that advances the objective of the Clean Water Act, is
consistent with Supreme Court decisions, is informed by the best available science, and
promptly and durably restores vital protections to the nation's waters. See Section IV.B.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.
The agencies disagree that the Prior Appropriation Doctrine has any relevance to this rule.
That doctrine pertains to water rights, and this rule does not address or impact water rights
under state law. This rule defines water bodies that are subject to permitting and other
protections under the Clean Water Act and thus is about water quality, not about who has
the rights to use any water in particular water bodies. See also the agencies' response to
comments in Section 2.8.1, below, further discussing water quantity issues and PUD No. 1 of
Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 720,114 S. Ct. 1900,1913,
128 L.Ed.2d 716, 733 (1994).
2.3 Legal Authority over Waters
Many commenters addressed the agencies' legal authority to assert jurisdiction over the categories of
waters that may fall within the definition of "waters of the United States." This sub-topic summarizes
comments that were general in nature or those that included discussion of multiple water types. The
subsections that follow summarize comments on this sub-topic that were specific to the different
categories of waters. Note that comments addressing the legal arguments or analysis provided in the 2020
NWPR are addressed in Section 4.
Several commenters argued that the proposed rule exceeds Congress's authority under the Commerce
Clause as well as the scope of the Clean Water Act.
Other commenters suggested that the scope of "waters of the United States" defined in the proposed rule
is supported by the Clean Water Act and relevant Supreme Court case law. One of these commenters
asserted that it is "beyond dispute" that Congress intended to provide broad federal Clean Water Act
protections, citing to the Supreme Court's discussion of legislative history in Riverside Bayview that
"[protection of aquatic ecosystems, Congress recognized, demanded broad federal authority to control
pollution."
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Agencies' Response: The agencies agree that the scope of "waters of the United States"
defined in the rule is supported by the Clean Water Act and relevant Supreme Court case
law. The agencies disagree that the rule exceeds Congress's authority under the Commerce
Clause. The significant nexus standard included in the final rule ensures that the definition
of "waters of the United States" remains well within the bounds of the Commerce Clause,
consistent with the text of the statute and the intent of Congress, and informed by the
decision in SWANCC. The agencies also disagree that the rule exceeds the scope of the Clean
Water Act. This rule is grounded in the Clean Water Act's objective "to restore and
maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U.S.C.
1251(a). This rule advances the Clean Water Act's objective by defining "waters of the
United States" to include waters that significantly affect the chemical, physical, or biological
integrity of traditional navigable waters, the territorial seas, and interstate waters, and
waters that meet the relatively permanent standard. The limitations in the definition ensure
that the agencies will not assert jurisdiction where the effect on traditional navigable
waters, the territorial seas, and interstate waters—i.e., the paragraph (a)(1) waters—is not
significant. See Final Rule Preamble Sections IV.A.2 and IV.A.3 for further discussion of
the rule's consistency with the Clean Water Act and the U.S. Constitution.
2.3.1 Traditional Navigable Waters and the Territorial Seas
2.3.1.1 General
Many commenters asserted that the Clean Water Act's statutory language, including the Act's use of the
term "navigable," and relevant Supreme Court precedent supports including traditional navigable waters
and the territorial seas within the agencies' scope of federal jurisdiction. Some of these commenters
expressed the view that the scope of "waters of the United States" is not limited to navigable-in-fact
waters. As support, one of these commenters cited the Supreme Court's statement in Int'l Paper Co. v.
Ouellette, 479 U.S. 481, 486 n.6 (1987), that the term "navigable waters" has been interpreted
"expansively to cover waters that are not navigable in the traditional sense," as well as the district court's
decision in NRDC v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975), finding that the term "is not limited
to the traditional tests of navigability." The commenter asserted that this position is consistent with
legislative history indicating that Congress intended "the term 'navigable waters' be given the broadest
possible constitutional interpretation."
Several commenters further suggested that the Supreme Court's opinions in Riverside Bayview,
SWANCC, and Rapanos cannot be interpreted as precluding the assertion of Clean Water Act jurisdiction
over waters that are not navigable-in-fact. One of these commenters emphasized that the Supreme Court
has found that "the term 'navigable' is of 'limited import' and that Congress evidenced its intent to
'regulate at least some waters that would not be deemed "navigable" under the classical understanding of
that term,"' SWANCC, 531 U.S. at 183 (quoting Riverside Bayview, 474 U.S. at 133). Additionally, a few
commenters discussing the effects of water pollution on interstate commerce stated that preventing
pollution in non-navigable waters is within Congress's Commerce Clause authority.
In contrast, a few commenters stated that the scope of "waters of the United States" should be limited to
traditional navigable waters and the territorial seas, including because limiting the scope of federal
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jurisdiction in this manner would recognize states' primary role in regulating waters within their borders
and give meaning to the statute's use of the term "navigable."
One commenter argued that intrastate waters may only be jurisdictional if they are navigable and if they
have a substantial economic effect on interstate commerce. As support for this position, the commenter
cited the Supreme Court's discussion in SWANCC, 531 U.S. at 172, regarding the importance of giving
meaning to the Clean Water Act's use of the term "navigable," as well as United States v. Lopez, 514 U.S.
549, 558-59 (1995) andNat'lFed'n oflndep. Bus. v. Sebelius, 567 U.S. 519, 551 (2012). The commenter
further asserted that, "to remain true" to the Clean Water Act's "stated purposes" in 33 U.S.C. 1251, a
navigable, intrastate water may only be jurisdictional where the necessary substantial economic effect on
interstate commerce arises out of (1) their use by interstate travelers for recreational purposes; (2) their
habitat for fish or shellfish that are taken and sold in interstate commerce; or (3) their use for industrial
purposes by industries in interstate commerce.
Agencies' Response: The agencies agree that traditional navigable waters and the territorial
seas are within the scope of "waters of the United States" and also agree that that the scope
of "waters of the United States" is not limited to navigable-in-fact waters. The agencies
disagree that Clean Water Act jurisdiction is limited to traditional navigable waters as it
would render the Clean Water Act more narrow than the Rivers and Harbors Act of 1899.
The argument is also contrary to the views of all nine Justices in Rapanos and would undo
Congress's considered and deliberate choice to expand Clean Water Act jurisdiction
beyond the traditional navigable waters because it found the prior statutes limited to those
waters insufficient. The agencies also disagree that intrastate waters may only be
jurisdictional if they are navigable and if they have a substantial economic effect on
interstate commerce; there is no such requirement in the case law establishing the
standards for traditional navigable waters; nor is there such a requirement in the text of the
Clean Water Act. See Final Rule Preamble Section IV.A.3 for further discussion of the final
rule's consistency with 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 regulations defining "waters of the United States." The agencies
agree that Congress's authority under the Commerce Clause is broader than traditional
navigable waters. See Final Rule Preamble Section IV.A.3.b.
2.3.1.2 Determining "navigability "
Multiple commenters argued that the proposed rule's approach to traditional navigable waters is overly
broad and should include only those waters that meet the Supreme Court's two-part test for navigability
as set forth in The Daniel Ball, 77 U.S. 557 (1870) and its progeny. In particular, many commenters
expressed concern that the proposed rule unlawfully expands the traditional navigable waters category to
include waters used for commercial waterborne recreation. One of these commenters stated that non-
Clean Water Act cases "undercut assertions of jurisdiction based on experimental canoe or kayak
outings," citing United States v. Oregon, 295 U.S. 1, 23-24 (1935); North Dakota v. United States, 972
F.2d 235 (8th Cir. 1992); and Alford v. Appalachian Power Co., 951 F.2d 30, 33 (4th Cir. 1991).
Another commenter asserting that the agencies' approach to "navigable" should align with the Supreme
Court's approach in The Daniel Ball added that the agencies should be mindful of the Court's holding in
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National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), which the commenter
characterized as establishing a "heightened-scrutiny standard for legislation based on the Commerce
Clause." The commenter suggested that under this heightened standard, Clean Water Act jurisdiction is
limited to traditional navigable waters.
Other commenters asserted that the agencies could find that a water is "navigable" based on evidence that
the water is used, or is susceptible to being used, for navigation by recreational watercraft. One of these
commenters argued that the Supreme Court "has confirmed 'that navigability does not depend on the
particular mode in which such use is or may be had—whether by steamboats, sailing vessels or flat-boats'
. . . and that the 'lack of commercial traffic [is not] a bar to a conclusion of navigability where personal or
private use by boats demonstrates the availability of the stream for the simpler types of commercial
navigation,'" citing United States v. Utah, 283 U.S. 64, 76 (1931) and United State v. Appalachian
Electric Power Co., 311 U.S. 377, 416 (1940).
Another commenter, citing the Supreme Court's opinions in Kaiser Aetna v. United States, 444 U.S. 164,
174 (1979) and Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 522-23 (1941), stated
that Congress has "paramount" power over navigable waters that may be invoked "irrespective of whether
navigation ... is used" and "includes the power to regulate water for purposes beyond navigation." This
commenter suggested that as a result, even if Congress intended to exert only its Commerce Clause
authority over navigation in promulgating the Clean Water Act, the Act's jurisdiction is not limited to
navigable-in-fact waters and may include waters used in recreation.
Other commenters asserted generally that the legislative history of the Clean Water Act demonstrates
congressional intent to expand the Clean Water Act's jurisdiction to all water bodies, not just those that fit
within prior narrow definitions of navigability.
Agencies' Response: The agencies are not making changes to their longstanding
interpretation of traditional navigable waters for purposes of Clean Water Act jurisdiction.
The agencies disagree that their longstanding interpretation is overly broad or inconsistent
with Supreme Court precedent. The agencies also disagree with commenters stating that the
rule unlawfully expands the traditional navigable waters category to include waters used
for commercial waterborne recreation. The Supreme Court has been clear that "[ejvidence
of recreational use, depending on its nature, may bear upon susceptibility of commercial
use." PPL Montana v. Montana, 565 U.S. 576, 600-01 (2012) (in the context of navigability at
the time of statehood). See Final Rule Preamble Section IV.C.2.b. for further discussion of
Supreme Court case law. The agencies are not asserting jurisdiction over waters and
adjacent wetlands that support plants and animals traditionally harvested by indigenous
people as traditional navigable waters on the basis that such waters "are susceptible of
supporting waterborne commerce," as that is not a basis recognized in the case law for
determining whether a water is a traditional navigable water. The agencies have also
concluded that asserting jurisdiction over waters based solely on whether the use,
degradation, or destruction of the water could affect interstate or foreign commerce pushes
the limit of the Clean Water Act where those waters do not significantly affect paragraph
(a)(1) waters. See Final Rule Preamble Section IV.C.6. The final rule is well within the
limits of the Commerce Clause. See Final Rule Preamble Section IV.A.3.
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2.3.2
Interstate Waters
2.3.2.1 General
Multiple commenters argued that the categorical inclusion of all interstate waters as jurisdictional is
inconsistent with the Clean Water Act, including because a categorical approach unlawfully reads
"navigable" out of the Act. Several of these commenters added that legal issues associated with the
proposed rule's categorical approach are further exacerbated by the proposed rule's treatment of interstate
waters as one of the "foundational waters" that can form the basis for asserting jurisdiction over other
types of waters, including tributaries, adjacent wetlands, and "other waters."
A few commenters asserted that the Clean Water Act's legislative history—particularly the revision in the
1972 amendments to remove the term "interstate waters" from the phrase "interstate or navigable
waters"—supports the position that Congress did not intend the agencies to assert jurisdiction over
interstate waters without regard to navigability. One of these commenters further asserted that the
reference to interstate waters in Clean Water Act section 303(a) does not indicate that Congress intended
to exert federal jurisdiction over all interstate waters, regardless of navigability. This commenter also
argued that Congress did not "acquiesce" to treating interstate waters as a standalone jurisdictional
category because it did not include interstate waters or interstate wetlands among those waters that are not
assumable under Clean Water Action section 404(g).
Multiple commenters contended that the categorical inclusion of interstate waters is inconsistent with
Riverside Bayview, SWANCC, and/or Rapanos, including because the relatively permanent and significant
nexus standards were formulated around connections to navigable waters, not non-navigable waters that
happen to cross state lines. Indeed, numerous commenters argued that Clean Water Act jurisdiction
cannot be premised solely on the fact that a water feature crosses a political boundary. Another
commenter stated that the agencies' reliance on City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981)
and Arkansas v. Oklahoma, 503 U.S. 91, 95 (1992) to assert categorical jurisdiction over interstate waters
is misplaced, as those cases only addressed interstate waters that were navigable themselves.
Additionally, several commenters contended that the proposed rule's categorical approach to asserting
jurisdiction over all interstate waters, without requiring any findings related to water quality impacts or
navigability, is inconsistent with the holding in Georgia v. Wheeler, 416 F. Supp. 3d. 1336 (S.D. Ga.
2019) that a categorical approach to interstate waters reads the term "navigability" out of the Act. A few
commenters suggested that the proposed rule would not be durable given the district court's holding in
Georgia v. Wheeler regarding asserting categorical jurisdiction over interstate waters. Another commenter
stated that asserting categorical jurisdiction over interstate waters is inconsistent with The Daniel Ball, 77
U.S. 557,563 (1870).
In contrast, many other commenters suggested that asserting categorical jurisdiction over interstate waters
is required or otherwise legally permissible, with some arguing that the statutory language clearly
demonstrates that the Clean Water Act protects all interstate waters—including because certain statutory
provisions explicitly reference interstate waters. Several of these commenters cited to the water quality
standards provisions of Clean Water Act section 303(a) in asserting that the Act's longstanding history
supports regulating interstate waters "in their own right," regardless of navigability. Another commenter
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stated that the "primary goal of the CWA to restore and maintain the chemical, physical, and biological
integrity of the nation's waters cannot be met unless interstate waters are protected at the federal level."
Moreover, numerous commenters expressed views consistent with the discussion in the preamble to the
proposed rule regarding the relationship between the 1972 Clean Water Act amendments and the
agencies' authority to assert jurisdiction over interstate waters. One of these commenters asserted that a
key purpose of the 1972 amendments was to expand—not narrow—federal jurisdiction and argued that
the Act thus "necessarily continued to protect interstate waters" following the 1972 amendments since
interstate waters were already considered jurisdictional prior to the amendments.
Another commenter expressly agreed with the proposed rule's interpretation that interstate waters
encompasses "all waters that Congress sought to protect since 1948." This commenter disagreed,
however, with the proposed rule's treatment of tributaries to interstate waters, arguing that tributaries to
interstate waters should—like interstate waters themselves—be categorically jurisdictional, rather than
subject to the relatively permanent or significant nexus standards, because Congress provided protections
for tributaries to interstate waters in the 1948 Water Pollution Control Act.
Several commenters cited the Supreme Court's decisions in Riverside Bayview, SWANCC, and Rapanos
to buttress their arguments on behalf of including interstate waters as jurisdictional. One of these
commenters cited Justice Scalia's opinion in Rapanos to support the proposition that federal jurisdiction
over interstate waters protects state sovereignty, rather than threatening it, Rapanos v. United States, 547
U.S. 715, 777 (2006) (plurality opinion) (acknowledging state amici's arguments that "the Act protects
downstream States from out-of-state pollution that they cannot themselves regulate"). Another commenter
suggested that failing to protect interstate waters contradicts the Clean Water Act's cooperative
federalism principles. Commenters also cited the Supreme Court's decisions in City of Milwaukee v.
Illinois, 451 U.S. 304, 209 (1981); Hodel v. Virginia Surface Water Mining & Reclamation Ass 'n, 452
U.S. 264, 282 (1981); and Arkansas v. Oklahoma, 503 U.S. 91, 106 (1992) as support for the assertion of
jurisdiction over interstate waters, in addition to circuit court decisions such as Am. Farm Bureau Fed'n v.
EPA, 792 F.3d 281, 304 (3d Cir. 2015) (referencing relevant Supreme Court case law including Gibbons
v. Ogden, 22 U.S. 1, 190 (1824); Missouri v. Illinois, 200 U.S. 496 (1906); and Georgia v. Tennessee
Copper Co., 206 U.S. 230 (1907)).
Finally, some commenters stated that a categorical approach to interstate waters is supported by
Congress's general power under the Commerce Clause to regular interstate commerce—as compared to
its narrower power to regulate navigable waters—and argued that pollutants discharged to interstate
waters likely have a substantial effect on interstate commerce. Another commenter asserted that interstate
water pollution is intrinsically a federal concern.
Agencies' Response: The agencies agree with commenters that the statutory language
demonstrates that the Clean Water Act protects interstate waters. The agencies also agree
that the statutory history and context support coverage of interstate waters regardless of
navigability. Additionally, the agencies agree that the final rule's approach to interstate
waters is not inconsistent with Supreme Court decisions. The agencies agree with
commenters that quoted Justice Scalia's opinion in Rapanos for the proposition that federal
jurisdiction over interstate waters protects state sovereignty, rather than threatening it,
Rapanos, 547 U.S. 715, 111 (2006) (acknowledging state amici's arguments that "the Act
protects downstream States from out-of-state pollution that they cannot themselves
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regulate"). The agencies also agree that protecting interstate waters is intrinsically a federal
concern and is consistent with the Clean Water Act's cooperative federalism principles.
The agencies disagree with commenters that argued that the categorical inclusion of all
interstate waters as jurisdictional is inconsistent with the Clean Water Act, or that such an
approach unlawfully reads "navigable" out of the Act. For the reasons discussed in more
detail below, the agencies have concluded that the text of the Act and the statutory history
of federal water pollution control places the terms of the Clean Water Act in context and
establish congressional intent to include interstate waters within the scope of the "navigable
waters" protected by the Act.
Further, the agencies disagree that the Clean Water Act's legislative history—particularly
the revision in the 1972 amendments to remove the term "interstate waters" from the
phrase "interstate or navigable waters"—supports the position that Congress does not
intend for the agencies to assert jurisdiction over interstate waters without regard to
navigability. The legislative history and Supreme Court case law demonstrate that
Congress's revisions were in furtherance of broadening the scope of the Clean Water Act in
comparison to its predecessor statutes, not narrowing it as commenters' argument would
do.
While commenters are correct that the agencies are not categorically including all
tributaries to interstate waters in the rule, the agencies are including such tributaries if they
meet the relatively permanent standard or the significant nexus standard and have
concluded that a case-specific approach to the jurisdiction of these tributaries is reasonable.
The agencies disagree with commenters that argued that the agencies' position is based on
congressional "acquiescence" to interstate waters as a standalone jurisdictional category
and further argued that because Congress did not include interstate waters or interstate
wetlands among those waters that are not assumable under Clean Water Act section 404(g)
there is no indication that Congress intended to protect interstate waters and interstate
wetlands. While the scope of section 404(g) is informative of the fact that adjacent wetlands
are "waters of the United States" it is not determinative of the scope of "waters of the
United States." Rather, the textual basis for the agencies' conclusion that interstate waters
are "navigable waters" is the text of section 502(7) and section 303 of the Act, as well as the
Act's statutory history.
Notably, in Clean Water Act section 502(7), Congress defined "navigable waters" as "the
waters of the United States, including the territorial seas" (emphasis added). The most
straightforward reading of this language is that "of the United States" encompasses, at the
very least, waters that cross state boundaries. The breadth of the definition of "navigable
waters" reflects a deliberate choice by Congress to both enact a statute with a broad scope
of waters protected by federal law and to delegate the authority to interpret the specialized
term and its definition to the expert agencies. The relevant House bill would have defined
"navigable waters" as the "navigable waters of the United States, including the territorial
seas." H.R. Rep. No. 911, 92d Cong., 2d Sess. 356 (1972) (emphasis omitted). But the House
was concerned that the definition might be given an unduly narrow interpretation. The
House Report observed: "One term that the Committee was reluctant to define was the
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term 'navigable waters.' The reluctance was based on the fear that any interpretation
would be read narrowly. However, this is not the Committee's intent. The Committee fully
intends that the term 'navigable waters' be given the broadest possible constitutional
interpretation unencumbered by agency determinations which have been made or may be
made for administrative purposes." H.R. Rep. No. 92-911, at 131 (1972). The Senate Report
also expressed disapproval of the narrow construction by the Corps of the scope of waters
protected under prior water protection statutes, stating "[tjhrough a narrow interpretation
of the definition of interstate waters the implementation [of the] 1965 Act was severely
limited. Water moves in hydrologic cycles and it is essential that discharge of pollutants be
controlled at the source." S. Rep. No. 92-414, at 77 (1971). Thus, in conference the word
"navigable" was deleted from that definition, and the conference report again urged that
the term "be given the broadest possible constitutional interpretation unencumbered by
agency determinations which have been made or may be made for administrative
purposes." S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972).
The agencies disagree with commenters that contended that the categorical inclusion of
interstate waters is inconsistent with Riverside Bayview, SWANCC, and/or Rapanos because
the relatively permanent and significant nexus standards were formulated around
connections to navigable waters, not non-navigable waters that happen to cross state lines.
None of those cases involved interstate waters, and the Supreme Court has not addressed
this longstanding provision of the agencies' regulations.
The agencies disagree with commenters that stated that the agencies' reliance on City of
Milwaukee v. Illinois, 451 U.S. 304, 317 (1981) and Arkansas v. Oklahoma, 503 U.S. 91, 95
(1992) to assert categorical jurisdiction over interstate waters is misplaced simply because
those cases only addressed interstate waters that were navigable themselves. Nothing in the
language or the reasoning of the cases limits the applicability of these protections of
interstate waters to navigable interstate waters or interstate waters connected to navigable
waters. If these protections only applied to navigable interstate waters, a downstream state
would be unable to protect many of its waters from out-of-state water pollution. This would
hardly constitute a comprehensive regulatory scheme that occupied the field of interstate
water pollution.
The agencies have concluded that the holding in Georgia v. Wheeler, 416 F. Supp. 3d. 1336
(S.D. Ga. 2019) regarding the agencies' authority over interstate waters articulated in
Georgia v. Wheeler is inconsistent with both the text and the history of the Clean Water Act,
as well as Supreme Court case law. See Final Rule Preamble Section IV.C.2.b.iii.
The agencies disagree that asserting categorical jurisdiction over interstate waters is
inconsistent with The Daniel Ball, 77 U.S. 557, 563 (1870). The Daniel Ball is not relevant to
the question of whether or not interstate waters are jurisdictional under the Clean Water
Act enacted 100 years later.
The language of the Clean Water Act is clear that Congress intended the term "navigable
waters" to include interstate waters. The Clean Water Act was enacted in 1972. EPA's
contemporaneous regulatory definition of "waters of the United States," promulgated in
1973, included interstate waters. The definition has been EPA's interpretation of the
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geographic jurisdictional scope of the Clean Water Act for approximately 40 years. To the
extent there is ambiguity, the agencies' interpretation, promulgated contemporaneously
with the passage of the Clean Water Act, is consistent with the statute and legislative
history. The Supreme Court's decisions in SWANCC and Rapanos did not address the
interstate waters provision of the existing regulation.
The following sections provide additional context regarding the agencies' legal authority to
regulate interstate waters.
A. The language of the Clean Water Act, the statute as a whole, and the statutory
History demonstrate congress's intent to include interstate waters as "navigable
waters" subject to the Clean Water Act.
While as a general matter, aspects of the terms "navigable waters" and "waters of the
United States" are ambiguous, the language of the Clean Water Act, particularly when read
as a whole, demonstrates that Congress intended to continue to subject interstate waters to
federal regulation. The statutory history of federal water pollution control places the terms
of the Clean Water Act in context and provides further evidence of Congressional intent to
include interstate waters within the scope of the "navigable waters" protected by the Act.
Congress intended to subject interstate waters to Clean Water Act jurisdiction without
imposing a requirement that such waters be navigable for purposes of federal regulation
under the Commerce Clause themselves or be connected to water that is navigable for
purposes of federal regulation under the Commerce Clause.7 The Clean Water Act is clear
that interstate waters that were previously subject to federal regulation remain subject to
federal regulation. The text of the Clean Water Act, specifically the Act's provision with
respect to interstate waters and their water quality standards, in conjunction with the
definition of navigable waters, evidences Congress's intent. Thus, interstate waters are
"navigable waters" protected by the Clean Water Act.
A.i The plain language of the Clean Water Act and the statute as a whole
establish Congress's intent to include interstate waters within the scope
of "navigable waters" for purposes of the Clean Water Act
Under well-settled principles, the phrase "navigable waters" should not be read in
isolation from the remainder of the statute. As the Supreme Court has explained:
The definition of words in isolation, however, is not necessarily controlling in
statutory construction. A word in a statute may or may not extend to the
outer limits of its definitional possibilities. Interpretation of a word or phrase
depends upon reading the whole statutory text, considering the purpose and
7 For purposes of the Clean Water Act, EPA and the Corps have interpreted the term "traditional navigable waters"
to include all of the "navigable waters of the United States," defined in 33 CFR Part 329 and by numerous decisions
of the federal courts, plus all other waters that are navigable-in-fact (e.g., the Great Salt Lake, Utah and Lake
Minnetonka, Minnesota). This section explains why EPA and the Corps do not interpret the Clean Water Act or the
Supreme Court's decisions in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006), to restrict Clean Water Act
jurisdiction over interstate waters to only those interstate waters that are traditional navigable waters or that connect
to traditional navigable waters.
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context of the statute, and consulting any precedents or authorities that
inform the analysis.
Dolan v. U.S. Postal Service, 546 U.S. 481, 486 (2006); see also United States Nat'L Bank of
Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993).
While aspects of the term "navigable waters" are ambiguous, interstate waters are waters
that are clearly covered by the plain language of the definition of "navigable waters."8
Congress defined "navigable waters" to mean "the waters of the United States, including
the territorial seas." 33. U.S.C. 1362(7). Interstate waters are waters of the several states
and, thus, the United States.
Other provisions of the statute provide additional textual evidence of the scope of this term
of the Act. Most importantly, there is a specific provision in the 1972 Clean Water Act
establishing requirements for those interstate waters which were subject to the prior Water
Pollution Control acts. This provision requires states to establish water quality standards
for navigable waters and submit them to the Administrator for review.9
Under section 303(a) of the Act, in order to carry out the purpose of this [Act], any
water quality standard applicable to interstate waters which was adopted by any
state and submitted to, and approved by, or is awaiting approval by, the
Administrator pursuant to this Act as in effect immediately prior to [the date of
enactment of the Federal Water Pollution Control Act Amendments of 1972,] shall
remain in effect unless the Administrator determined that such standard is not
consistent with the applicable requirements of the Act as in effect immediately prior
to the [date of enactment of the Federal Water Pollution Control Act Amendments
of 1972.] If the Administrator makes such a determination he shall, within three
months after [the date of enactment of the Federal Water Pollution Control Act
Amendments of 1972,] notify the state and specify the changes needed to meet such
requirements. If such changes are not adopted by the state within ninety days after
the date of such notification, the Administrator shall promulgate such changes in
accordance with subsection (b) of this section.
Clean Water Act section 303(a)(1) (emphasis added).
Under the 1965 Act, as discussed in more detail below, states were directed to develop water
quality standards establishing water quality goals for interstate waters. By the early 1970s,
all the states had adopted such water quality standards. Advanced Notice of Proposed
8 The Supreme Court has found that the term "waters of the United States" is ambiguous in some respects. Rapanos,
547 U.S. at 752 (plurality opinion), 804 (dissent).
9 Section 303 of the Act requires the states to submit revised and new water quality standards to the Administrator
for review. Clean Water Act section 303(c)(2)(A). Such revised or new water quality standards "shall consist of the
designated uses of the navigable waters involved and the water quality criteria for such waters." Id. If the
Administrator determines that a revised or new standard is not consistent with the Act's requirements, or determines
that a revised or new standard is necessary to meet the Act's requirements, and the state does not make required
changes, "[t]he Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new
water quality standard for the navigable waters involved." Clean Water Act section 303(c)(4).
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Rulemaking, Water Quality Standards Regulation, 63 FR 36742, 36745, July 7,1998. In
section 303(a), Congress intended for existing federal regulation of interstate waters to
continue under the amended Clean Water Act. Water quality standards for interstate
waters were not merely to remain in effect, but EPA was required to actively assess those
water quality standards and even promulgate revised standards for interstate waters if
states did not make necessary changes. By the plain language of the statute, these water
quality standards for interstate waters were to remain in effect "in order to carry out the
purpose of this Act." The objective of the Act is "to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters." Clean Water Act section 101(a). It
would contravene Congressional intent for a court to impose an additional jurisdictional
requirement on all rivers, lakes, and other waters that flow across, or form a part of, state
boundaries ("interstate waters" as defined by the 1948 Act, section 10, 62 Stat. 1161), such
that interstate waters that were previously protected were no longer protected because they
lacked a connection to a water that is navigable for purposes of federal regulation under the
Commerce Clause. Nor would all the existing water quality standards be "carrying] out the
purpose of this Act," if the only water quality standards that could be implemented through
the Act (through, for example, National Pollutant Discharge Elimination System permits
under section 402) were those water quality standards established for interstate waters that
are also waters that are navigable for purposes of federal regulation under the Commerce
Clause or that connect to waters that are navigable for purposes of federal regulation under
the Commerce Clause. Nowhere in section 303(a) does Congress make such a distinction.
A.ii The Federal Water Pollution Control statute that became the Clean
Water Act covered interstate waters
Prior to 1972, two federal statutes addressed discharges of pollutants into interstate waters
and water that is navigable for purposes of federal regulation under the Commerce Clause,
and tributaries of each: the Water Pollution Control Act of 1948, as amended, and section
13 of the Rivers and Harbors Act of 1899 (section 13 is known as the "Refuse Act"). The
Water Pollution Control Act extended federal authority over interstate waters and their
tributaries, while the Refuse Act extended federal jurisdiction over the "navigable waters of
the United States" and their tributaries. These two separate statutes demonstrate that
Congress recognized that interstate waters and "navigable waters of the United States"
were independent lawful bases of federal jurisdiction.
A. il a The Federal Water Pollution Control Act Prior to 1972
From the outset, and through all the amendments pre-dating the 1972 Amendments, the
federal authority to abate water pollution under the Water Pollution Control Act, and the
Federal Water Pollution Control Act (FWPCA) as it was renamed in 1956, extended to
interstate waters. In addition, since first enacted in 1948, and throughout all the
amendments, the goals of the Act have been, inter alia, to protect public water supplies,
propagation of fish and aquatic life, recreation, agricultural, industrial, and other legitimate
uses. See 62 Stat. 1155 and 33 U.S.C. 466 (1952), 33 U.S.C. 466 (1958), 33 U.S.C. 466 (1964),
33 U.S.C. 1151 (1970).
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In 1948, Congress enacted the Water Pollution Control Act in connection with the exercise
of jurisdiction over the waterways of the Nation and in the consequence of the benefits to
public health and welfare by the abatement of stream pollution. See Pub. L. No. 80-845, 62
Stat. 1155 (June 30,1948). The 1948 Act authorized technical assistance and financial aid to
states for stream pollution abatement programs and made discharges of pollutants into
interstate waters and their tributaries a nuisance, subject to abatement and enforcement by
the United States. See id. section 2(d)(1),(4), 62 Stat, at 1156-1157 (section 2(d)(1) of the
Water Pollution Control Act of 1948,62 Stat, at 1156, stated that the "pollution of interstate
waters" in or adjacent to any state or states (whether the matter causing or contributing to
such pollution is discharged directly into such waters or reaches such waters after discharge
into a tributary of such waters), which endangers the health or welfare of persons in a state
other than that in which the discharge originates, is declared to be a public nuisance and
subject to abatement as provided by the Act. (emphasis added)); section 2(a), 62 Stat. 1155
(requiring comprehensive programs for "interstate waters and tributaries thereof'); section
5, 62 Stat. 1158 (authorizing loans for sewage treatment to abate discharges into "interstate
waters or into a tributary of such waters"). Under the statute, "interstate waters" were
defined as all rivers, lakes, and other waters that flow across, or form a part of, state
boundaries. Section 10, 62 Stat. 1161.
In 1956, Congress strengthened measures for controlling pollution of interstate waters and
their tributaries. Pub. L. No. 84-660, 70 Stat. 498 (1956) (directing further cooperation
between the federal and state governments in development of comprehensive programs for
eliminating or reducing "the pollution of interstate waters and tributaries" and improving
the sanitary condition of surface and underground waters, and authorizing the Surgeon
General to make joint investigations with states into the conditions of and discharges into
"any waters of any state or states.").
In 1961, Congress amended the FWPCA to substitute the term "interstate or navigable
waters" for "interstate waters." See Pub. L. No. 87-88, 75 Stat. 208 (1961). Accordingly,
beginning in 1961, the provisions of the FWPCA applied to all interstate waters and
navigable waters and the tributaries of each, see 33 U.S.C. 466a, 466g(a) (1964).10
In 1965, Congress approved a second set of major legislative changes, requiring each state
to develop water quality standards for interstate waters within its boundaries by 1967. Pub.
L. No. 89-234, 79 Stat. 908 (1965).11 Failing establishment of adequate standards by the
state, the FWPCA authorized establishment of water quality standards by federal
regulation. Id. at 908. The 1965 Amendments provided that the discharge of matter "into
such interstate waters or portions thereof," which reduces the quality of such waters below
the water quality standards established under this subsection (whether the matter causing
or contributing to such reduction is discharged directly into such waters or reaches such
waters after discharge into tributaries of such waters), is subject to abatement through
10 Congress did not define the term "navigable waters" in the 1961 Amendments, or in subsequent FWPCA
Amendments, until 1972.
11 In 1967, the state of Arizona created the Water Quality Control Council (Council) to implement the requirements
of the 1965 FWPCA. The Council adopted water quality standards for those waters that were considered "interstate
waters" pursuant to the existing federal law. The Council identified the Santa Cruz River as an interstate water and
promulgated water quality standards for the river in accordance with federal law.
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procedures specified in the Act, including (after conferences and negotiations and
consideration by a Hearing Board) legal action in the courts. Id. at 909.12
A. ii. b The Refuse Act of 1899
Since its original enactment in 1899, the Refuse Act (also known as section 13 of the Rivers
and Harbors Act of 1899) has prohibited the discharge of refuse matter "into any navigable
water of the United States, or into any tributary of any navigable water." Ch. 425, 30 Stat.
1152 (1899). It also has prohibited the discharge of such material on the bank of any
tributary where it is liable to be washed into a navigable water. Id. Violators are subject to
fines and imprisonment. Id. at 1153 (codified at 33 U.S.C. 412). In 1966, the Supreme Court
upheld the Corps' interpretation of the Refuse Act as prohibiting discharges that pollute the
navigable waters, and not just those discharges that obstruct navigation. United States v.
Standard Oil Co., 384 U.S. 224, 230 (1966). In 1970, President Nixon signed an Executive
Order directing the Corps (in consultation with the Federal Water Pollution Control
Administration13) to implement a permit program under section 13 of the Rivers and
Harbors Act of 1899 "to regulate the discharge of pollutants and other refuse matter into
the navigable waters of the United States or their tributaries and the placing of such matter
upon their banks." E.O. 11574, 35 FR 19627, Dec. 25,1970. In 1971, the Corps promulgated
regulations establishing the Refuse Act Permit Program. 36 FR 6564, 6565, April 7,1971.
The regulations made it unlawful to discharge any pollutant (except those flowing from
streets and sewers in a liquid state) into a navigable waterway or tributary, except pursuant
to a permit. Under the permit program, EPA advised the Corps regarding the consistency
of a proposed discharge with water quality standards and considerations, and the Corps
evaluated a permit application for impacts on anchorage, navigation, and fish and wildlife
resources. Id. at 6566.
A. Hi The Federal Water Pollution Control Act Amendments of 1972
When Congress passed the Federal Water Pollution Control Act Amendments of 1972
(referred to hereinafter as the "Clean Water Act"), it was not acting on a blank slate. It was
amending existing law that provided for a federal/state program to address water pollution.
The Supreme Court has recognized that Congress, in enacting the Clean Water Act in 1972,
"intended to repudiate limits that had been placed on federal regulation by earlier water
pollution control statutes and to exercise its powers under the Commerce Clause to regulate
at least some waters that would not be deemed 'navigable' under the classical
understanding of that term." Riverside Bayview Homes, 474 U.S. at 133; see also
International Paper Co. v. Ouellette, 479 U.S. 481, 486, n.6 (1987).
The amendments of 1972 defined the term "navigable waters" to mean "the waters of the
United States, including the territorial seas." 33 U.S.C. 1362(7). While earlier versions of the
12 The 1966 Amendments authorized civil fines for failing to provide information about an alleged discharge causing
or contributing to water pollution. Pub. L. No. 89-753, 80 Stat. 1250 (1966); see also S. Rep. No. 414, 92d
Congress, 1st Sess. 10 (1972) (describing the history of the FWPCA).
13 In December 1970, administration of the Federal Water Pollution Control Administration was transferred from the
Secretary of the Interior to EPA. S. Rep. No. 414, 92d Congress, 1st Sess. (1972).
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1972 legislation defined the term to mean "the navigable waters of the United States," the
Conference Committee deleted the word "navigable" and expressed the intent to reject
prior geographic limits on the scope of federal water-protection measures. Compare S.
Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972), with H.R. Rep. No. 911, 92 Cong., 2d
Sess. 356 (1972) (bill reported by the House Committee provided that "[t]he term 'navigable
waters' means the navigable waters of the United States, including the territorial seas"); see
also S. Rep. No. 414, 92d Cong., 1st Sess. 77 ("Through a narrow interpretation of the
definition of interstate waters the implementation of the 1965 Act was severely limited ....
Therefore, reference to the control requirements must be made to the navigable waters,
portions thereof, and their tributaries."). Thus, Congress intended the scope of the 1972 Act
to include, at a minimum, the waters already subject to federal water pollution control
law—both interstate waters and waters that are navigable for purposes of federal
regulation under the Commerce Clause. Those statutes covered interstate waters, defined
interstate waters without requiring that they be a traditional navigable water or be
connected to water that is a traditional navigable water, and demonstrated that Congress
knew that there are interstate waters that are not navigable for purposes of federal
regulation under the Commerce Clause.
In fact, Congress amended the Federal Water Pollution Control Act in 1961 to substitute
the term "interstate or navigable waters" for "interstate waters," demonstrating that
Congress wanted to be very clear that it was asserting jurisdiction over both types of
waters: interstate waters even if they were not navigable for purposes of federal regulation
under the Commerce Clause, and traditional navigable waters even if they were not
interstate waters. At no point were the interstate waters already subject to federal water
pollution control authority required to be navigable or to connect to a traditional navigable
water. Further, as discussed above, the legislative history clearly demonstrates that
Congress was expanding jurisdiction—not narrowing it—with the 1972 amendments. Thus,
it is reasonable to conclude that by defining "navigable waters" as "the waters of the United
States" in the 1972 amendments, Congress included not just traditionally navigable waters,
but all waters previously regulated under the Federal Water Pollution Control Act,
including non-navigable interstate waters.
Based on the statutory definition of navigable waters, the requirement of Clean Water Act
section 303(a) for water quality standards for interstate waters to remain in effect, the
purposes of the 1972 Act, and the more than three decades of federal water pollution
control regulation that provides a context for reading those provisions of the statute, the
intent of Congress is clear that the term "navigable waters" includes "interstate waters" as
an independent basis for Clean Water Act jurisdiction, whether or not they themselves are
traditional navigable waters or are connected to a traditional navigable water.
B. Supreme Court precedent supports Clean Water Act jurisdiction over interstate
waters without respect to navigability.
The Supreme Court established in Illinois v. Milwaukee, 406 U.S. 91 (1972) and City of
Milwaukee v. Illinois, 451 U.S. 304 (1981) that resolving interstate water pollution issues was
a matter of federal law and that the Clean Water Act was the comprehensive regulatory
scheme for addressing interstate water pollution. In both these decisions, the Court held
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that federal law applied to interstate waters. Moreover, these cases analyzed the applicable
federal statutory schemes and determined that the provisions of the FWPCA and the Clean
Water Act regulating water pollution applied generally to interstate waters. The City of
Milwaukee further recognized that Clean Water Act jurisdiction extends to interstate
waters without regard to navigability.
In Illinois v. Milwaukee, the Court considered a public nuisance claim brought by the state
of Illinois against the city of Milwaukee to address the adverse effects of Milwaukee's
discharges of inadequately treated sewage into Lake Michigan, "a body of interstate water,"
406 U.S. at 93, and held that the federal common law of nuisance was an appropriate
mechanism to resolve disputes involving interstate water pollution. 406 U.S. at 107
(observing that "federal courts will be empowered to appraise the equities of suits alleging
creation of a public nuisance by water pollution"). The Court further noted that in such
actions, the Court could consider a state's interest in protecting its high water quality
standards from "the more degrading standards of a neighbor." Id.
In reaching this conclusion, the Court examined in detail the scope of the federal regulatory
scheme as it existed prior to the October 1972 FWPCA amendments, concluding that the
FWPCA "makes clear that it is federal, not state, law that in the end controls the pollution
of interstate or navigable waters." 406 U.S. at 102 (emphasis added). The Court specifically
noted that section 10(a) of the FWPCA "makes pollution of interstate or navigable waters
subject 'to abatement'" 406 U.S. at 102 (emphasis added). The Court also acknowledged
that it was essential for federal law to resolve interstate water pollution disputes, citing with
approval the following discussion from Texas v. Pankey:
Federal common law and not the varying common law of the individual states is,
we think, entitled and necessary to be recognized as a basis for dealing in
uniform standard with the environmental rights of a State against improper
impairment by sources outside its domain .... Until the field has been made the
subject of comprehensive legislation or authorized administrative standards,
only a federal common law basis can provide an adequate means for dealing with
such claims as alleged federal rights.
406 U.S. at 107 n. 9, citing Texas v. Pankey, 441 F.2d 236, 241-242. However, the Court
noted that the plaintiff was seeking relief outside the scope of the FWPCA and that statute
explicitly provided that independent "state and interstate action to abate pollution of
interstate or navigable waters shall be encouraged and shall not... be displaced by Federal
enforcement action." 406 U.S. at 104 (citing section 10(b) of the FWPCA).
In City of Milwaukee, the Court revisited this dispute and addressed the expanded
statutory provisions of the Clean Water Act regulating water pollution. The scope of the
Clean Water Act amendments led the Court to reverse its decision in Illinois v. Milwaukee.
Congress has not left the formulation of appropriate federal standards to the
courts through application of often vague and indeterminate nuisance concepts
and maxims of equity jurisprudence, but rather has occupied the field through the
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establishment of a comprehensive regulatory program supervised by an expert
administrative agency. The 1972 Amendments to the Federal Water Pollution
Control Act were not merely another law "touching interstate waters".... Rather,
the Amendments were viewed by Congress as a "total restructuring" and
"complete rewriting" of the existing water pollution legislation considered in that
case.
451 U.S. at 317.
The Court's analysis in Illinois v. Milwaukee made clear that federal common law was
necessary to protect "the environmental rights of States against improper impairment by
sources outside its domain." 406 U.S. at 107 n.9. In the context of interstate water pollution,
nothing in the Court's language or logic limits the reach of this conclusion to only navigable
interstate waters. In City of Milwaukee, the Court found that the Clean Water Act was the
"comprehensive regulatory program" that "occupied the field" (451 U.S. 317) with regard
to interstate water pollution, eliminating the basis for an independent common law of
nuisance to address interstate water pollution. Since the federal common law of nuisance (as
well as the statutory provisions regulating water pollution in the FWPCA) applied to
interstate waters whether navigable or not, the Clean Water Act could only occupy the field
of interstate water pollution if it too extended to non-navigable as well as navigable
interstate waters.
With regard to the specifics of interstate water pollution, the City of Milwaukee Court noted
that, in Illinois v. Milwaukee, it had been concerned that Illinois did not have a forum in
which it could protect its interests in abating water pollution from out of state, absent the
recognition of federal common law remedies. 451 U.S. at 325. The Court then went on to
analyze in detail the specific procedures created by the Clean Water Act "for a State
affected by decisions of a neighboring State's permit-granting agency to seek redress." 451
U.S. at 326. The Court noted that "any State whose waters may be affected by the issuance
of a permit" is to receive notice and the opportunity to comment on the permit. Id. (citing to
Clean Water Act section 402(b)(3)(5)). In addition, the Court noted provisions giving EPA
the authority to veto and issue its own permits "if a stalemate between an issuing and
objecting state develops." Id. (citing to Clean Water Act sections 402(d)(2)(A) and (d)(4)). In
light of these protections for states affected by interstate water pollution, the court
concluded that
[t]he statutory scheme established by Congress provides a forum for the pursuit
of such claims before expert agencies by means of the permit-granting process. It
would be quite inconsistent with this scheme if federal courts were in effect to
"write their own ticket" under the guise of federal common law after permits
have already been issued and permittees have been planning and operating in
reliance on them.
451 U.S. at 326.
Nothing in the language or the reasoning of this discussion limits the applicability of these
protections of interstate waters to navigable interstate waters or interstate waters connected
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to navigable waters. If these protections only applied to navigable interstate waters, a
downstream state would be unable to protect many of its waters from out-of-state water
pollution. This would hardly constitute a comprehensive regulatory scheme that occupied
the field of interstate water pollution.
For these reasons, the holdings and the reasoning of these decisions establish that the
regulatory reach of the Clean Water Act extends to all interstate waters without regard to
navigability.14
C. The Supreme Court's decisions in SWANCC andRapanos do not limit or constrain
Clean Water Act jurisdiction over non-navigable interstate waters.
As noted above, the Supreme Court recognized that Congress, in enacting the Clean Water
Act, "intended to repudiate limits that had been placed on federal regulation by earlier
water pollution control statutes and to exercise its powers under the Commerce Clause to
regulate at least some waters that would not be deemed 'navigable' under the classical
understanding of that term." Riverside Bayview, 474 U.S. at 133; see also International Paper
Co. v. Ouellette, 479 U.S. 481, 486 n.6 (1987). In Riverside Bayview, and subsequently in
SWANCC and Rapanos, the Court addressed the construction of the Clean Water Act terms
"navigable waters" and "the waters of the United States." In none of these cases did the
Supreme Court address interstate waters, nor did it overrule prior Supreme Court
precedent which addressed the interaction between the Clean Water Act and federal
common law to address pollution of interstate waters. Therefore, the statute, even in light of
SWANCC and Rapanos, does not impose an additional requirement that interstate waters
must be water that is navigable for purposes of federal regulation under the Commerce
Clause or connected to water that is navigable for purposes of federal regulation under the
Commerce Clause to be jurisdictional waters for purposes of the Clean Water Act.
At the outset, it is worth noting that neither SWANCC nor Rapanos dealt with the
jurisdictional status of interstate waters. Repeatedly in the SWANCC decision the Court
emphasized that the question presented concerned the jurisdiction status of non-navigable
intrastate waters located in two Illinois counties. SWANCC 531 U.S. at 165-166,171 ("we
thus decline to... hold that isolated ponds, some only seasonal, wholly located within two
Illinois counties fall under [section] 404(a) definition of navigable waters ...."). Nowhere in
SWANCC does the majority discuss the Court's interstate water case law. The Court does
not even discuss the fact that Clean Water Act jurisdictional regulations identify interstate
waters as regulated "waters of the United States." In fact, the repeated emphasis on the
intrastate nature of the waters at issue can be read as an attempt to distinguish SWANCC
from the Court's interstate water jurisprudence.
14 Nothing in subsequent Supreme Court case law regarding interstate waters in any way conflicts with the agencies'
interpretation. See International Paper v. Ouellette, 479 U.S. 481 (1987); Arkansas v. Oklahoma, 503 U.S. 91
(1992). In both these cases, the Court detailed how the Clean Water Act had supplanted the federal common law of
nuisance to establish the controlling statutory scheme for addressing interstate water pollution disputes. Nothing in
either decision limits the applicability of the Clean Water Act to interstate water pollution disputes involving
navigable interstate waters or interstate waters connected to navigable waters.
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In Rapanos, the properties at issue were located entirely within the state of Michigan. 547
U.S. 715, 762-764. Thus, the Court had no occasion to address the text of the Clean Water
Act with respect to interstate waters or the agencies' regulatory provisions concerning
interstate waters. In addition, neither Justice Kennedy nor the plurality discusses the
impact of their opinions on the Court's interstate waters jurisprudence. The plurality
decision acknowledges that Clean Water Act jurisdictional regulations include interstate
waters. 547 U.S. 715, 724. However, the plurality did not discuss in any detail its views as to
the continued vitality of regulations concerning such waters.
Moreover, one of the analytical underpinnings of the SWANCC and Rapanos decisions is
irrelevant to analysis of regulations asserting jurisdiction over interstate waters. In
SWANCC, the Court declined to defer to agency regulations asserting jurisdiction over
isolated waters because
[w]here an administrative interpretation of a statute invokes the outer limits of
Congress' power, we expect a clear indication that Congress intended that result.
... This requirement stems from our prudential desire not to needlessly reach
constitutional issues and our assumption that Congress does not casually
authorize administrative agencies to interpret a statute to push the limit of
Congressional authority .... This concern is heightened where the administrative
interpretation alerts the federal-state framework by permitting federal
encroachment upon a traditional state power.
531 U.S. at 172-173 (citations omitted).
However, the Court's analysis in Illinois v. Milwaukee and City of Milwaukee makes clear
that Congress has broad authority to create federal law to resolve interstate water pollution
disputes. As discussed above, the Court in Illinois v. Milwaukee invited further federal
legislation to address interstate water pollution, and in so doing concluded that state law
was not an appropriate basis for addressing interstate water pollution issues. 406 U.S. at
107 n.9 (citing Texas v. Pankey, 441 F.2d 236, 241-242). In City of Milwaukee, the Court
indicated that central to its holding in Illinois v. Milwaukee was its concern "that Illinois did
not have any forum to protect its interests [in the matters involving interstate water
pollution]." 451 U.S. 325. As discussed above, the Court cited with approval the statutory
provisions of the Clean Water Act regulating water pollution as an appropriate means to
address that concern.
The City of Milwaukee and Illinois v. Milwaukee decisions make clear that assertion of
federal authority to resolve disputes involving interstate waters does not alter "the federal-
state framework by permitting federal encroachment on a traditional state power." 531 U.S.
at 173. "Our decisions concerning interstate waters contain the same theme. Rights in
interstate streams, like questions of boundaries, have been recognized as presenting federal
questions." Illinois v. Milwaukee, 406 U.S. at 105 (internal quotations and citations omitted).
The Supreme Court's analysis in SWANCC and Rapanos addressed the criteria for
analyzing Clean Water Act jurisdictional issues for wholly intrastate waters. However, these
decisions by their terms did not affect the body of case law developed to address interstate
waters. The holdings in the Supreme Court's interstate waters jurisprudence, in particular
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City of Milwaukee, apply Clean Water Act jurisdiction to interstate waters without regard
to, or discussion of, navigability. In City of Milwaukee, the Court held that the Clean Water
Act provided a comprehensive statutory scheme for addressing the consequences of
interstate water pollution. Based on this analysis, the Court expressly overruled its holding
in Illinois v. Milwaukee that the federal common law of nuisance would apply to resolving
interstate water pollution disputes, instead holding that such disputes would now be
resolved through application of the statutory provisions of the Clean Water Act regulating
water pollution.
Moreover, SWANCC and Rapanos acknowledge that Clean Water Act jurisdiction extends
to at least some non-navigable waters. See, e.g., 547 U.S. at 779 (Kennedy, J.). Neither the
SWANCC Court nor the plurality or Kennedy opinions in Rapanos purports to set out the
complete boundaries of Clean Water Act jurisdiction. See, e.g., 547 U.S. at 731 ("[w]e need
not decide the precise extent to which the qualifiers 'navigable' and 'of the United States'
restrict the coverage of the Act.") (plurality opinion).
As the Supreme Court has repeatedly admonished, if a Supreme Court precedent has direct
application in a case yet appears to rest on a rationale rejected in some other line of
decisions, lower courts should follow the case which directly controls, leaving to the
Supreme Court the prerogative of overruling its precedents. Agostino v. Felton, 521 U.S.
203, 237 (1997); United States v. Hatter, 532 U.S. 557, 566-567 (1981). Moreover, when the
Supreme Court overturns established precedent, it is explicit. See Lawrence v. Texas, 539
U.S. 558, 578 ("Bowers was not correct when it was decided, and it is not correct today. It
ought not to remain binding precedent. Bowers v. Hardwick should be and now is
overruled.").
D. The agencies' longstanding interpretation of the term "navigablewaters" includes
"interstate waters."
EPA, the agency charged with implementing the Clean Water Act, has always interpreted
the 1972 Act to cover interstate waters, until the change in position in the 2020 NWPR.
Final Rules, 38 FR 13528, May 22,1973 (the term "waters of the United States" includes
"interstate waters and their tributaries, including adjacent wetlands"). To the extent that
there is ambiguity about whether interstate waters are "waters of the United States," the
agencies' longstanding interpretation is consistent with the text and structure of the statute,
the statutory and legislative history, and advances the objective of the Act.
While the Corps in 1974 limited the scope of coverage for purposes of section 404 of the
Clean Water Act to those waters that were subject to the Rivers and Harbors Act of 1899,
the Corps amended its regulations through interim final regulations in 1975 to provide for
the same definition of "waters of the United States" that EPA's regulations had always
established. The Corps' revised regulations defined "navigable waters" to include
"[interstate waters landward to their ordinary high water mark and up to their
headwaters." In its final rules promulgated in 1977, the Corps adopted EPA's definition
and included within the definition of "waters of the United States" "interstate waters and
their tributaries, including adjacent wetlands." The preamble provided an explanation for
the inclusion of interstate waters:
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The affects [sic] of water pollution in one state can adversely affect the
quality of the waters in another, particularly if the waters involved are
interstate. Prior to the FWPCA amendments of 1972, most federal statutes
pertaining to water quality were limited to interstate waters. We have,
therefore, included this third category consistent with the Federal
government's traditional role to protect these waters from the standpoint
of water quality and the obvious effects on interstate commerce that will
occur through pollution of interstate waters and their tributaries.
42 FR 37122 (July 19,1977).
The legislative history similarly provides support for the agencies' interpretation.
Congress concluded in 1972 that the mechanism for controlling discharges and, thereby
abating pollution, under the FWPCA and Refuse Act "has been inadequate in every vital
aspect." S. Rep. No. 414, 92d Cong., 1st Sess. 7 (1972). The Senate Committee on Public
Works reported that development of water quality standards, assigned to the states
under the 1965 FWPCA Amendments, "is lagging" and the "1948 abatement
procedures, and the almost total lack of enforcement," prompted the search for "more
direct avenues of action against water polluters and water pollution." Id. at 5. The
Committee further concluded that although the Refuse Act permit program created in
1970 "seeks to establish this direct approach," it was too weak because it applied only to
industrial polluters and too unwieldy because the authority over each permit application
was divided between two Federal agencies. See id. at 5; see also id. at 70-72 (discussing
inadequacies of Refuse Act program).
In light of the poor success of those programs, the Committee recommended a more direct
and comprehensive approach which, after amendment in conference, was adopted in the
1972 Act. The text, legislative history and purpose of the 1972 Amendments all show an
intent—through the revisions—to broaden, improve and strengthen, not to curtail, the
federal water pollution control program that had existed under the Refuse Act and
FWPCA.15 The 1972 Amendments were "not merely another law 'touching interstate
waters'" but were "viewed by Congress as a 'total restructuring' and 'complete rewriting'
of the existing water pollution legislation."16
15 See id. at 9 ("The scope of the 1899 Refuse Act is broadened; the administrative capability is strengthened."); id.
at 43 ("Much of the Committee's time devoted to this Act centered on an effort to resolve the existing water quality
program and the separate pollution program developing under the 1899 Refuse Act."). Congress sought "to weave"
the Refuse Act permit program into the 1972 Amendments, id. at 71, as the statutory text shows. See 33 U.S.C.
1342(a) (providing that each application for a permit under 33 U.S.C. 407, pending on October 18, 1972, shall be
deemed an application for a permit under 33 U.S.C. 1342(a)).
16 City of Milwaukee v. Illinois, 451 U.S. at 317; see also id. at 318 (holding that the Clean Water Act precluded
federal common-law claims because "Congress' intent in enacting the [Clean Water Act] was clearly to establish an
all-encompassing program of water pollution regulation"); Middlesex County Sewerage Auth. v. National Sea
Clammers Ass'n, 453 U.S. 1, 22 (1981) (existing statutory scheme "was completely revised" by enactment of the
Clean Water Act).
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As the legislative history of the 1972 Act confirms, Congress's use of the term "waters of
the United States" was intended to repudiate earlier limits on the reach of federal water
pollution efforts: "The conferees fully intend that the term 'navigable waters' be given the
broadest possible constitutional interpretation unencumbered by agency determinations
which have been made or may be made for administrative purposes." See S. Conf. Rep.
No. 1236, 92d Cong., 2d Sess. 144 (1972). The House and Senate Committee Reports
further elucidate the Conference Committee's rationale for removing the word
"navigable" from the definition of "navigable waters," in 33 U.S.C. 1362(7). The Senate
report stated:
The control strategy of the Act extends to navigable waters. The definition of this
term means the navigable waters of the United States, portions thereof, tributaries
thereof, and includes the territorial seas and the Great Lakes. Through a narrow
interpretation of the definition of interstate waters the implementation of the 1965
Act was severely limited. Water moves in hydrologic cycles and it is essential that
discharge of pollutants be controlled at the source. Therefore, reference to the
control requirements must be made the navigable waters, portions thereof, and
their tributaries.
See S. Rep. 414, 92d Cong., 1st Sess. 77 (1971); see also H.R. Rep. No. 911, 92d Cong., 2d
Sess. 131 (1972) ("The Committee fully intends that the term "navigable waters" be given
the broadest possible constitutional interpretation unencumbered by agency determinations
which have been made or may be made for administrative purposes."). These passages
strongly suggest that Congress intended to expand federal protection of waters. There is no
evidence that Congress intended to exclude interstate waters, which were protected under
federal law, if they were not water that is navigable for purposes of federal regulation under
the Commerce Clause or connected to water that is navigable for purposes of federal
regulation under the Commerce Clause. Such an exclusion would be contrary to all the
stated goals of Congress in enacting the sweeping amendments which became the Clean
Water Act.
The Clean Water Act was enacted in 1972. EPA's contemporaneous regulatory definition of
"waters of the United States," promulgated in 1973, included interstate waters. The
definition has been EPA's interpretation of the geographic jurisdictional scope of the Clean
Water Act for approximately 40 years. Congress has also been aware of and has supported
the Agency's longstanding interpretation of the Clean Water Act. "Where 'an agency's
statutory construction has been fully brought to the attention of the public and the
Congress, and the latter has not sought to alter that interpretation although it has amended
the statute in other respects, then presumably the legislative intent has been correctly
discerned.'" North Haven Board of Education v. Bell, 102 456 U.S. 512, 535 (1982) (quoting
United States v. Rutherford, 442 U.S. 544 n. 10 (1979) (internal quotes omitted)).
The 1977 amendments to the Clean Water Act were the result of Congress's thorough
analysis of the scope of Clean Water Act jurisdiction in light of EPA and Corps regulations.
The 1975 interim final regulations, promulgated by the Corps in response to NRDC v.
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Callaway,11 aroused considerable congressional interest. Hearings on the subject of section
404 jurisdiction were held in both the House and the Senate.18 An amendment to limit the
geographic reach of section 404 to waters that were navigable and their adjacent wetlands
for purposes of federal regulation under the Commerce Clause was passed by the House,
123 Cong. Rec. 10434 (1977), but defeated on the floor of the Senate, 123 Cong. Rec. 26728
(1977), and eliminated by the Conference Committee, H.R. Conf. Rep. 95-830, 95th Cong.,
1st Sess. 97-105 (1977). Congress rejected the proposal to limit the geographic reach of
section 404 because it wanted a permit system with "no gaps" in its protective sweep. 123
Cong. Rec. 26707 (1977) (remarks of Sen. Randolph). Rather than alter the geographic
reach of section 404, Congress amended the statute by exempting certain activities—most
notably certain agricultural and silvicultural activities—from the permit requirements of
section 404. See 33 U.S.C. 1344(f).
Other evidence supports the conclusion that when Congress rejected the attempt to limit the
geographic reach of section 404, it was well aware of the jurisdictional scope of EPA and the
Corps' definition of "waters of the United States." For example, Senator Baker stated (123
Cong. Rec. 26718 (1977)):
Interim final regulations were promulgated by the [CJorps [on] July 25,
1975 .... Together the regulations and [EPA] guidelines established a
management program that focused the decision-making process on
significant threats to aquatic areas while avoiding unnecessary regulation
of minor activities. On July 19,1977, the [CJorps revised its regulations to
further streamline the program and correct several misunderstandings ...
Continuation of the comprehensive coverage of this program is essential
for the protection of the aquatic environment. The once seemingly
separable types of aquatic systems are, we now know, interrelated and
interdependent. We cannot expect to preserve the remaining qualities of
our water resources without providing appropriate protection for the
entire resource.
Earlier jurisdictional approaches under the [Rivers and Harbors Act]
established artificial and often arbitrary boundaries ....
This legislative history leaves no room for doubt that Congress was aware of the agencies'
definition of navigable waters. While there was controversy over the assertion of
jurisdiction over all adjacent wetlands and some non-adjacent wetlands, the agencies'
assertion of Clean Water Act jurisdiction over interstate waters was uncontroversial.
17 40 FR 31320, 31324 (July 25, 1975).
18 Section 404 of the Federal Water Pollution Control Act Amendments of1972: Hearings Before the Senate Comm.
on Public Works, 94th Cong., 2d Sess. (1976); Development of New Regulations by the Corps of Engineers,
Implementing Section 404 of the Federal Water Pollution Control Act Concerning Permits for Disposal of Dredge
or Fill Material: Hearings Before the Subcomm. on Water Resources of the House Comm. on Public Works and
Transportation, 94th Cong., 1st Sess. (1975).
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Finally, the constitutional concerns that led the Supreme Court to decline to defer to agency
regulations in SWANCC and Rapanos are not present where the agency is asserting
jurisdiction over interstate waters. In SWANCC, the Court declined to defer to agency
regulations asserting jurisdiction over non-adjacent, non-navigable, intrastate waters
because the Court felt such an interpretation of the statute invoked the outer limits of
Congress's power. The Court's concern "is heightened where the administrative
interpretation alters the federal-state framework by permitting federal encroachment upon
a traditional state power." 531 U.S. at 172-73 (citations omitted). Authority over interstate
waters is squarely within the bounds of Congress's Commerce Clause powers.19 Further,
the federal government is in the best position to address issues which may arise when waters
cross state boundaries, so this interpretation does not disrupt the federal-state framework
in the manner the Supreme Court feared that the assertion of jurisdiction over a non-
adjacent, non-navigable, intrastate body of water based on the presence of migratory birds
did. The Supreme Court's analysis in Illinois v. Milwaukee and City of Milwaukee makes
clear that Congress has broad authority to create federal law to resolve interstate water
pollution disputes. Therefore, as discussed above, it is appropriate for the agencies to adopt
an interpretation of the extent of Clean Water Act jurisdiction over interstate waters that
gives full effect to City of Milwaukee unless and until the Supreme Court elects to revisit its
holding in that case.
The final rule does not change the pre-2015 regulation's provision that defines "waters of
the United States" to include "interstate waters including interstate wetlands," and also
included, for example, tributaries to interstate waters. While the Supreme Court did not
specifically address the status of interstate waters for purposes of the Clean Water Act in
Riverside Bayview Homes, SWANCC, or Rapanos, as discussed above, the agencies conclude
that the Supreme Court provided guidance on the status of interstate waters for purposes of
the Clean Water Act in earlier decisions. The agencies have looked to Congress and the
language of the Clean Water Act in concluding that interstate waters are "waters of the
United States," and in the final rule, based on the language of the statute, the statutory
history, the legislative history, and the caselaw, the agencies' continue their longstanding
interpretation of "navigable waters" to include interstate waters. In addition, since the
Supreme Court's decision in SWANCC identified a significant nexus to the waters clearly
covered by the Clean Water Act—in those cases, the traditional navigable waters—as the
basis for Clean Water Act jurisdiction, the agencies are promulgating a final rule that
similarly protects the interstate waters that the agencies concluded were similarly clearly
covered by the Clean Water Act.
The agencies are not providing a definition for "interstate waters" in the final rule. This
provision remains unchanged from the pre-2015 rule which does not contain a definition of
interstate waters. As discussed above, the assertion of jurisdiction over interstate waters is
based on the statute and under predecessor statutes "interstate waters" were defined as all
rivers, lakes, and other waters that flow across, or form a part of, state boundaries. Section
10, 62 Stat. 1161 (1948). The agencies will continue to implement the provision consistent
with the intent of Congress.
19 In Illinois v. Milwaukee, the Supreme Court noted that "Congress has enacted numerous laws touching interstate
waters." 406 U.S. at 101.
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E. The 2020 NWPR's exclusion of the category of "interstate waters" from the
definition of "waters of the United States" is inconsistent with the Act and reduced
the agencies' ability to effectively advance the objective of the Act.
The 2020 NWPR removed interstate waters as an independent category of "waters of the
United States" for the first time in the history of the Clean Water Act. As discussed above,
this change cannot be reconciled with the structure, history, and objective of the statute, as
well as judicial interpretations of the Act. The 2020 NWPR asserted that Congress's
replacement of the term "navigable or interstate waters" with "navigable waters" in 1972
was an "express rejection" of the regulation of interstate waters as an independent category,
reflecting Congress's intent to protect interstate waters only to the extent that they are
navigable. 85 FR 22583 (April 21, 2020). In support of its rationale, the 2020 NWPR cited
the order of the U.S. District Court for the Southern District of Georgia remanding the 2015
Clean Water Rule. Id.; citing Georgia v. Wheeler, 418 F. Supp. 3d 1336 (S.D. Ga. 2019). That
order found that the categorical inclusion of interstate waters exceeds the agencies'
authority under the Clean Water Act because it "reads the term navigability out of the
CWA," and would assert jurisdiction over waters that are not navigable-in-fact and
otherwise have no significant nexus to any other navigable-in-fact water. Id. at 1358-59. The
court also found the 2015 Clean Water Rule's approach overly broad because it would
result in Clean Water Act jurisdiction over tributaries, adjacent waters, and case-by-case
waters based on their relationship to non-navigable interstate waters. Id. at 1359-60.
The interpretation of the agencies' authority over interstate waters articulated in the 2020
NWPR and in Georgia v. Wheeler is inconsistent with both the text and the history of the
Clean Water Act, as well as Supreme Court caselaw, for all of the reasons discussed above.
While the term "navigable waters" is ambiguous in some respects, interstate waters are
waters that are clearly covered by the plain language of the definition of "navigable
waters." Congress defined "navigable waters" to mean "the waters of the United States,
including the territorial seas."
The text of the 1972 Act specifically addresses "interstate waters" regardless of their
connection to navigability. The 1972 statute retains the term "interstate waters" in 33
U.S.C. 1313(a), which provides that pre-existing water quality standards for "interstate
waters" remain in effect unless EPA determined that they were inconsistent with any
applicable requirements of the pre-1972 version of the Act. The 2020 NWPR disputes the
importance of the reference to "interstate waters" in section 303(a), pointing to references
to water quality standards for "interstate navigable waters" in the legislative history of the
1972 Act as indicating that section 303(a) was referring to "interstate navigable waters," not
"interstate waters" more broadly. See 85 FR 22284 (April 21, 2020), citing S. Rep. No. 92-
414, at 2, 4 (1971) (referring to standards for "interstate navigable waters"); 118 Cong. Reg.
10240 (1972) (same). However, the Act ultimately incorporated the term "interstate waters"
in section 303(a), and the agencies interpret that plain language as a clear indication that
Congress intended the agencies to continue to protect the water quality of interstate waters
without reference to their navigability. Excluding "interstate waters" as an independent
category of Clean Water Act jurisdiction disregards the plain language of section 303(a).
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The 2020 NWPR's approach left parties affected by out-of-state pollution into interstate
waters not captured by one of the other categories of jurisdictional waters with no recourse
but to litigate, once again relying on the "vague and indeterminate" principles of "State or
Federal common law." City of Milwaukee, 451 U.S. at 325-326; 85 FR 22286 (April 21,
2021). While Lake Michigan would have been a jurisdictional traditional navigable water
under the 2020 NWPR regardless of its interstate status, and therefore protected by the
Clean Water Act's regulatory program, interstate waters that do not fall into another
category of regulated waters lacked protections under the 2020 NWPR. For example,
commenters on the 2020 NWPR indicated that closed basins in New Mexico that straddle
the state's borders with Texas or Mexico serve as essential sources of water for drinking
and irrigation for tribes and other communities, but waters within these basins would no
longer be jurisdictional under the 2020 NWPR if there is no traditional navigable water in
the watershed. See Comment Letter from National Wildlife Federation on the proposed
Revised Definition of Waters of the United States, Docket ID No. EPA-HQ-OW-2018-0149-
6880, pp. 33-36 (April 15, 2019).
The 2020 NWPR's exclusion of non-navigable interstate waters from the Clean Water Act's
protections reduced the agencies' ability to efficiently and effectively protect the quality of
waters shared by more than one state, and therefore "of the United States." In the agencies'
judgment, restoring categorical protection of interstate waters is more consistent with the
text, structure, and history of the statute, as well as Supreme Court caselaw, than the 2020
NWPR, and better fulfills the agencies' charge to implement a "comprehensive regulatory
program" that protects the chemical, physical, and biological integrity of the nation's
waters.
2.3.2.2 State-tribal boundaries
Some commenters addressed whether interstate waters should include waters that cross a state-tribal
boundary.
Several commenters expressed concern with a state-tribal boundary giving rise to an "interstate water." A
couple commenters argued that the history of the Clean Water Act does not support treating waters that
cross a state-tribal boundary as "interstate waters," asserting that the term "interstate waters" as used in
the 1948 Federal Water Pollution Control Act and a 1956 amendment was defined with respect to state
boundaries, not tribal boundaries. These commenters also suggested that it is relevant and significant that
the Clean Water Act does not include tribes in the statutory definition of "State."
Other commenters, including tribal commenters, expressed support for treating waters that cross a state-
tribal boundary as interstate waters, with some commenters asserting that waters that cross or serve as
boundaries between the lands of different tribes (i.e.. tribal/tribal boundaries) should also be deemed
interstate waters under the rule. One of these commenters asserted that waters that cross a state-tribal
boundary may be regulated as interstate waters because a water that crosses the boundary between state
and tribal lands "will be regulated by two different sovereign entities on either side of that boundary," and
thus these types of waters "present the same regulatory issues as waters that form or cross the boundary
between two states" such that "it is appropriate for the agencies to regulate them in the same manner."
This commenter added that the Indian Commerce Clause also gives the agencies authority to regulate
such waters as interstate waters. As support, the commenter asserted that "the 'broad power to regulate
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tribal affairs' contained in the Indian Commerce Clause is delegated to the executive branch where, as
here, federal agencies are given a mandate to regulate in a particular area, such as to ensure clean water,"
citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980). The commenter further
asserted that "[b]ecause the 'Interstate Commerce and Indian Commerce Clauses have very different
applications,' [quoting Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989)] . . . the
agencies must consider the unique needs of Indian Tribes and the unique authority to address those needs
that is provided by the Indian Commerce Clause" in revising the definition of "waters of the United
States."
A few commenters stated that establishing federal Clean Water Act protections over waters that cross a
state-tribal boundary by designating them categorically jurisdictional interstate waters is important
because not all tribes have their own permitting programs due to a lack of resources and other issues.
These commenters suggested that upstream pollution may raise environmental justice concerns that the
agencies should examine.
With respect to what "tribal boundary" the agencies should use for purposes of implementing the
interstate waters provision, many commenters recommended that the agencies rely on the definition of
"Indian country" as provided in 18 U.S.C. § 1151. A few commenters, however, urged the agencies not to
use this definition to determine which waters flow across, or form a part of, state-tribal boundaries. One
of these commenters asserted that the definition of "Indian country" is too narrow and was specifically
designed to limit the areas where tribes have exclusive criminal enforcement jurisdiction, arguing that
there is no basis for the agencies to use that definition to determine whether a water crosses or forms the
boundary between a tribe and a state. Another commenter stated that the agencies should adopt the most
expansive understanding of tribal lands that the Commerce Clause and the Clean Water Act allow.
Agencies' Response: The agencies appreciate the feedback commenters provided on
whether interstate waters should include waters that cross a state-tribal boundary and how
to identify "tribal boundaries" for purposes of implementing the interstate waters
provision. As discussed in Final Rule Preamble Section IV.C.2.b.iii, the agencies have
considered the input received during pre-proposal tribal consultation and the public
comment period for the proposed rule and, at this time, are continuing to evaluate the issue
of interstate waters and tribal boundaries, including what should appropriately be
considered "tribal boundaries" for purposes of identifying interstate waters under the
Clean Water Act. The agencies have weighed the benefits of addressing this issue now,
based on the record currently before them, versus undertaking additional analysis and
outreach to tribes to gain a better understanding of tribal boundaries as related to
interstate waters and related implications via a separate process to avoid delaying the entire
rule. Based on the agencies' evaluation of the comments received and the benefits of further
analysis and outreach, the agencies have decided to conduct additional analysis and
outreach to inform a future action related to considering designating waters that cross a
state-tribal boundary as interstate waters under the definition of "waters of the United
States." The agencies recognize the importance of this issue to tribes and are fully
committed to directly engaging with tribal governments as the agencies continue to evaluate
this aspect of the scope of "waters of the United States." Accordingly, the agencies will
address this issue in a subsequent action after completing additional analysis and essential
outreach and engagement activities with tribes and interested stakeholders.
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2.3.3 Impoundments
A few commenters addressed the issue of the agencies' legal authority to assert jurisdiction over
impoundments.
One commenter argued that asserting categorical jurisdiction over impoundments of "waters of the United
States" lacks support in law or science, citing S.D. Warren Co. v. Maine Board of Environmental
Protection, 547 U.S. 370 (2006) and United States v. Moses, 496 F.3d 984 (9th Cir. 2007), and stated that
the agencies should instead make case-by-case determinations of jurisdiction over impounded waters.
This same commenter expressed support for not treating impoundments of "other waters" as jurisdictional
impoundments and suggested that there may be other types of impoundments that should not be
considered jurisdictional, such as "an impoundment of a tributary to an impounded wetland."
Conversely, one commenter argued that there is no reasonable basis for excluding impoundments of
"other waters" from jurisdiction, citing SWANCC, S.D. Warren Co., and Jefferson City v. Washington
Dep't of Ecology, 511 U.S. 700 (1994).
Agencies' Response: The agencies disagree that that asserting categorical jurisdiction over
impoundments of "waters of the United States" lacks support in law or science. The
agencies have concluded that S.D. Warren Co. v. Maine Board of Environmental Protection,
547 U.S. 370 (2006) and United States v. Moses, 496 F.3d 984 (9th Cir. 2007) provide support
for their longstanding regulations establishing jurisdiction of impoundments of "waters of
the United States. See Final Rule Preamble Section IV.C.3. The agencies agree with
commenters that impoundments of waters not identified in paragraphs (a)(1) through (a)(4)
of the rule should not be jurisdictional by rule under paragraph (a)(2) of the final rule. See
Final Rule Preamble Section IV.C.6.
2.3.4 Tributaries
2.3.4.1 General
Many commenters addressed the issue of the agencies' legal authority to assert jurisdiction over
tributaries. A few commenters asserted generally that the proposed rule's approach to tributaries is overly
broad and inconsistent with Rapanos.
Some commenters discussed the agencies' authority to assert jurisdiction over different types of
tributaries—i.e., ephemeral, intermittent, and perennial tributaries. Some commenters asserted that the
inclusion of ephemeral and intermittent streams in the definition of "waters of the United States" exceeds
the scope of the Clean Water Act and/or is not supported by Rapanos. Several commenters argued
specifically that the proposed rule's aggregation of ephemeral features under the significant nexus
standard goes beyond the scope of the Clean Water Act and is inconsistent with Rapanos and
congressional intent. Another commenter stated that it is inconsistent with Justice Kennedy's concurring
opinion in Rapanos to apply the significant nexus test to tributaries.
Additionally, multiple commenters suggested that, pursuant to Supreme Court precedent and the Clean
Water Act, jurisdiction over non-navigable tributaries should be limited to tributaries containing clearly
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discernible features and contributing consistent flow into traditional navigable waters. A few commenters
stated that case law, the Clean Water Act, and constitutional limits require jurisdictional tributaries to
either carry a volume of water needed for navigable capacity of an adjacent traditional navigable water or
be of a quality needed for interstate commerce, where impairment to water quality would have a negative
effect on interstate commerce.
In contrast, several commenters suggested that tributaries should be categorically jurisdictional, akin to
traditional navigable waters, and that the Rapanos decision supports this categorical approach. Some of
these commenters argued that such an approach is supported by the Clean Water Act's text and legislative
history. As support, one of the commenters asserted that the agencies "state[d] that they intend to protect
all waters that were protected under predecessor laws to the 1972 CWA Amendments," citing to the
proposed rule at 86 FR 69375. Another commenter suggested that any tributary that contributes flow to
another "water of the United States" should be regulated as a point source under the Clean Water Act.
Agencies' Response: The agencies disagree with the commenters who stated that the
proposed rule asserted overly broad jurisdiction over tributaries, including those who
recommended limiting jurisdiction to those tributaries that carry a volume of water
necessary to ensure the navigable capacity of an adjacent traditional navigable water or to
protect interstate commerce. As the Corps explained in 1977, its regulations necessarily
encompassed "the many tributary streams that feed into the tidal and commercially
navigable waters" because "the destruction and/or degradation of the physical, chemical,
and biological integrity of each of these waters is threatened by the unregulated discharge
of dredged or fill material." 42 FR 37123. See Final Rule Preamble Section IV.A.2.b.i.
Tributaries play an important role in the transport of water, sediments, organic matter,
nutrients, and organisms to paragraph (a)(1) waters. For example, tributaries slow and
attenuate floodwaters; provide functions that help maintain water quality; trap and
transport sediments; transport, store, and modify pollutants; and sustain the biological
productivity of paragraph (a)(1) waters. The agencies would not be able to protect
paragraph (a)(1) waters if it did not protect their tributaries, regardless of whether the
tributaries themselves carry a sufficient volume of water to ensure navigable and
commercial capacity of adjacent traditional navigable waters. See further discussion in the
Final Rule Preamble Section IV.A.2.c.i and in the Technical Support Document section
III.A.
In response to the commenters who objected to the inclusion of ephemeral and intermittent
streams in the definition of "waters of the United States," the agencies would like to clarify
that they are not categorically including or excluding streams as jurisdictional based on
their flow regime in this rule. 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.
Furthermore, nothing in the text of the statute or its legislative history excludes some
categories of tributaries based on their flow regime. Indeed, the best available science
demonstrates that ephemeral and intermittent streams can significantly affect the chemical,
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physical, and biological integrity of paragraph (a)(1) waters. See Final Rule Section
IV.A.5.C. All tributary streams, including perennial, intermittent, and ephemeral streams,
are chemically, physically, and biologically connected to larger downstream waters via
channels and associated alluvial deposits where water and other materials are concentrated,
mixed, transformed, and transported. For example, in Arizona, most of the stream
channels—96% by length—are classified as ephemeral or intermittent. The functions that
streams provide to benefit downstream waters occur even when streams do not flow
constantly. Ephemeral headwater streams shape larger downstream river channels by
accumulating and gradually or episodically releasing stored materials such as sediment and
large woody debris. Due to the episodic nature of flow in ephemeral and intermittent
channels, sediment and organic matter can be deposited some distance downstream in the
arid Southwest in particular, and then moved farther downstream by subsequent
precipitation events. Over time, sediment and organic matter continue to move downstream
and influence larger downstream waters. These materials help structure downstream river
channels by slowing the flow of water through channels and providing substrate and habitat
for aquatic organisms. See Final Rule Section IV.A.2.c.i.
The agencies disagree with commenters who stated that the significant nexus standard
should not apply to tributaries. The significant nexus standard is consistent with the plain
language of the Act's objective because it is based upon effects on the water quality of
paragraph (a)(1) waters and limits the scope of jurisdiction based on the text of that
objective. Moreover, protection of waters that significantly affect the paragraph (a)(1)
waters—i.e., traditional navigable waters, the territorial seas, and interstate waters—is
consistent with the scope of Commerce Clause authority that the Supreme Court in
SWANCC concluded Congress was exercising, while also fulfilling Congress's intent in
exercising that authority in enacting the Clean Water Act. See Final Rule Preamble Section
IV.A.3.a.i. The requirement that a significant nexus exist between upstream waters,
including tributaries, and "navigable waters in the traditional sense" thus clearly advances
Congress's stated objective in the Act while fulfilling "the need to give the term 'navigable'
some meaning." Rapanos, 547 U.S. at 779 (Kennedy, J., concurring). See Final Rule
Preamble Section IV.A.2.c.i. Indeed, in Rapanos, Justice Kennedy reasoned that Riverside
Bayview and SWANCC "establish the framework for" determining whether an assertion of
regulatory jurisdiction constitutes a reasonable interpretation of "navigable waters,"
according to which, with respect to both the connection from wetlands and nonnavigable
waters to navigable waters, "[ajbsent a significant nexus, jurisdiction under the Act is
lacking." 547 U.S. at 767. See Final Rule Preamble Section IV.A.3.a.i.
In response to the concerns about aggregating ephemeral features under the significant
nexus standard, streams and wetlands must sometimes be evaluated in context with other
streams because the incremental effects of individual streams and wetlands are cumulative
across entire watersheds. Downstream waters are the time-integrated result of all waters
contributing to them. For example, the amount of water or biomass contributed by a
specific ephemeral stream in a given year might be small, but the aggregate contribution of
that stream over multiple years, or by all ephemeral streams draining that watershed in a
given year or over multiple years, can have substantial consequences on the integrity of the
downstream waters. Similarly, the downstream effect of a single event, such as pollutant
discharge into a single stream or wetland, might be negligible but the cumulative effect of
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multiple discharges could degrade the integrity of downstream waters. See Section I.A.i of
the Technical Support Document. The significant nexus standard, under which waters are
assessed alone or in combination for the functions they provide downstream, is consistent
with the foundational scientific framework and concepts of hydrology. See Final Rule
Preamble Section IV.A.3.a.i.
The agencies agree with the commenters who stated that they 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 a case-specific, fact-based approach (for example, in this rule, tributaries and
their adjacent wetlands that meet the significant nexus standard or relatively permanent
standard). While the latter does not necessarily provide the same certainty as defining
waters as jurisdictional by category, case-specific determinations of the scope of Clean
Water Act jurisdiction are not unusual—in fact, they are the norm. In the Supreme Court's
most recent decision addressing a question about the jurisdictional scope of the Clean
Water Act, although not the scope of "waters of the United States," the Court established a
standard for determining jurisdiction that does not establish bright lines marking the
bounds of federal jurisdiction. Instead, like the significant nexus standard, the standard in
Maui requires an inquiry focused on the specific facts at issue and is guided by the purposes
Congress sought to achieve under the Clean Water Act. See Final Rule Preamble Section
IV.A.3.a.iii.
The question as to whether a creek on one property flows into a paragraph (a)(1) water
some distance away inevitably requires some ability to consider specific flow patterns, soil,
climate, or other facts. Imposing a bright line jurisdictional threshold, as the NWPR did in
attempting to implement the Rapanos plurality decision, only makes this determination
more challenging, not less, as was the agencies' experience during the year in which it
attempted to implement this rule. For example, one test that the NWPR implemented was
the requirement that, to be jurisdictional, a tributary must flow into a downstream (a)(1)
water at least once in a typical year. The typical year test was deemed necessary to
implement the plurality's surface connection requirement, because without it, the
jurisdictional status of many tributaries would change every year depending on whether the
year was wet or dry. Yet this bright line standard often proved unworkable, as discussed in
the Final Rule Section IV.B.3.C. Many landowners do not keep records demonstrating flow
of particular streams at least once per year. If the creek flowed through a neighbor's
property on its way to the traditional navigable water, the landowner might not know
whether and how the tributary flowed into the (a)(1) water. Like the Supreme Court's
"functional equivalent" standard, the significant nexus standard accommodates and
considers the specific facts available in particular instance.
With respect to commenters who argued that tributaries should be categorically
jurisdictional, as explained in section IV.A.3.a.iii of Final Rule Preamble, the agencies have
concluded that adjudication of which tributaries are within Clean Water Act protections,
through case-specific application of the significant nexus standard or the relatively
permanent standard under this rule, is appropriate.
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The agencies disagree with the commenter who asserted that the agencies "state[d] that they
intend to protect all waters that were protected under predecessor laws to the 1972 CWA
Amendments" at 86 FR 69375. Nothing in the language that the commenter cited provides
that the agencies would protect all waters protected under predecessor laws to the 1972
CWA Amendments. The proposed rule did state that it "would restore the longstanding
categorical protections for interstate waters, regardless of their navigability, that were
established by the earliest predecessors to the 1972 Clean Water Act," 86 FR 69417, but this
discussion focuses on interstate waters rather than tributaries.
In response to the commenter who stated that any tributary that contributes flow to
another "water of the United States" should be regulated as a point source under the Clean
Water Act, the agencies note that the rule reestablishes the agencies' historic position that a
feature can be both a point source and a "water of the United States."20 That position dates
back to 1975 in an opinion of the General Counsel of EPA interpreting the Clean Water
Act. That opinion stated: "it should be noted that what is prohibited by section 301 is ''any
addition of any pollutant to navigable waters from any point source.' It is therefore my
opinion that, even should the finder of fact determine that any given irrigation ditch is a
navigable water, it would still be permittable as a point source where it discharges into
another navigable water body, provided that the other point source criteria are also
present." In re Riverside Irrigation District, 1975 WL 23864, at *4 (June 27,1975) (emphasis
in original). The opinion stated that "to define the waters here at issue as navigable waters
and use that as a basis for exempting them from the permit requirement appears to fly
directly in the face of clear legislative intent to the contrary." Id. See Final Rule Section
IV.C.7.c.i. The same reasoning applies to tributaries other than irrigation ditches.
2.3.4.2 Reach analysis
Several commenters specifically criticized the proposed rule's approach to evaluating the "reach" of a
tributary as being inconsistent with the Rapanos plurality's opinion and Justice Kennedy's concurrence.
In general, these commenters expressed concern that the agencies could deem the entire reach of a
tributary to be jurisdictional so long as one portion of the tributary satisfies either the proposed rule's
relatively permanent or significant nexus standard. The commenters argued that this approach could allow
for a finding of jurisdiction "based on little more than a mere hydrological connection" and that such an
approach was rejected by the Rapanos plurality and Justice Kennedy, with one commenter citing
Rapanos, 547 U.S. at 716, 784-85, as support. A couple of these commenters stated that neither the
Rapanos plurality's or Justice Kennedy's opinion "supports the exercise of jurisdiction over broad
expanses of waters simply because of their proximity to, or hydrological connection with a single point of
water found to satisfy either standard" (emphasis in original). The commenters further asserted that the
proposed rule's reach analysis "raises the very same concern that Justice Kennedy expressed when he
20 The agencies considered that a district court has reached a contrary conclusion, but the agencies decline to adopt
the decision's reasoning in this rule, including because it relies on the change in interpretation articulated for the first
time in the 2020 NWPR and which the agencies reject in this rule, and is inconsistent with the position of five
Justices in Rapanos. See Toxics Action Center, Inc. & Conservation Law Found, v. Casella Waste Systems, Inc.,
2021 WL 3549938, *8 (D.N.H. Aug. 11, 2021) ("If a waterway can simultaneously be a navigable water (that is, a
water of the United States) and a point source, the distinction the statute draws between the two categories using the
prepositions 'from' and 'to' would be rendered meaningless.").
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rejected the Corps' definition of tributary in Rapanos" because it would cover waters "remote from any
navigable-in-fact water" and carrying "only minor volumes."
Likewise, several commenters expressed concern that the proposed rule's reach analysis is contrary to
Justice Kennedy's opinion because it could result in the assertion of jurisdiction over features "far
upstream" from a traditional navigable water and that have "insubstantial" volumes of flow, suggesting
that Justice Kennedy expressed concern about including such features as jurisdictional.
A different commenter expressed concern that the proposed rule's reach analysis would allow the
agencies "to assert jurisdiction over these uppermost reaches of an unlimited daisy chain of waters in a
stream system irrespective of whether those different segments or streams share a relatively permanent
surface connection to navigable waters and without ever examining whether those reaches share a
significant nexus with navigable waters," which the commenter asserted would be inconsistent with the
Rapanos plurality's opinion and Justice Kennedy's concurrence. The commenter added that such an
"intermittent, physically remote connection" to navigable waters would also be inconsistent with
Riverside Bayview and SWANCC.
Agencies' Response: In implementing the rule, to determine the flow characteristics of a
tributary, the agencies will evaluate the entire reach of the tributary that is of the same
Strahler stream order (i.e.,from the point of confluence, where two lower order streams
meet to form the tributary, downstream to the point such tributary enters a higher order
stream; see Technical Support Document IV.A.ii.l). The flow characteristics of lakes,
ponds, and impoundments that are part of the tributary network will be assessed in
conjunction with the stream with which they connect. Consistent with the pre-2015
regulatory regime, the agencies will assess the flow characteristics of a particular tributary
at the farthest downstream limit of such tributary (iethe /joint the tributary enters a
higher order stream). Rapanos Guidance at 6 n.24. Where data indicate the flow
characteristics at the downstream limit do not represent the entire reach of the tributary,
the flow characteristics that best characterize the entire tributary reach will be used. See
Final Rule Section IV.C.4.c.i; Technical Support Document IV.A.ii. This approach is not
inconsistent with the Riverside Bayview Homes, SWANCC, or Rapanos opinions, none of
which opined on the most appropriate way to measure stream reach. The approach in the
final rule is consistent with longstanding agency practice under the Rapanos Guidance and
with the science of stream flow. It is also the most intuitive and implementable approach to
assessing stream reach because it is based on the hydrology and landscape of particular
streams. Similarly, it accommodates regional differences rather than imposing a nationwide
bright line to measure stream reach (e.g., distance). For these reasons, the agencies'
approach is reasonable.
Contrary to the concerns expressed by a commenter, the approach to measuring stream
reach in this rule would not deem jurisdictional the "uppermost reaches of an unlimited
daisy chain of waters in a stream system" irrespective of whether those different segments
or streams share a relatively permanent surface connection to navigable waters and without
ever examining whether those reaches share a significant nexus with navigable waters." Nor
would it deem waters jurisdictional based on an "intermittent, physically remote
connection" to paragraph (a)(1) waters. A stream reach would only be jurisdictional if it
meets either the relatively permanent or significant nexus standard. The relatively
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permanent standard encompasses tributaries that have flowing or standing water year-
round or continuously during certain times of the year. In evaluating tributaries under the
significant nexus standard, the agencies will determine whether the tributaries, either alone
or in combination with similarly situated waters in the region, significantly affect the
chemical, physical, or biological integrity of paragraph (a)(1) waters. See Final Rule Section
IV.C.4.a, IV.C.4.C.
2.3.5 Adjacent Wetlands
Many commenters addressed the issue of the agencies' legal authority to assert jurisdiction over adjacent
wetlands. Some commenters argued that the agencies' use of the relatively permanent standard in the
proposed rule is inconsistent with the Rapanos plurality's opinion because it does not require a
continuous connection for adjacent wetlands to be jurisdictional, with one commenter referencing the
agencies' statement in the proposed rule that a continuous surface connection "does not require surface
water to be continuously present between the wetland and the tributary." Another commenter asserted that
the proposed rule's approach to adjacent wetlands is inconsistent with the Rapanos plurality's opinion
because it allows for the "continuous surface connection requirement to be satisfied by physical
connections such as non-jurisdictional ditches with irregular flow surface connection requirement."
Some commenters contended that the agencies do not have legal authority over adjacent wetlands because
the aggregation of wetlands and/or the reach approach are contrary to Justice Kennedy's requirement that
each wetland be judged in its own right, using the significant nexus test. Some commenters argued that
the proposed rule does not adequately look to the significance of the connection pursuant to Rapanos and
that this demonstrates the agencies' overreach of authority over adjacent wetlands.
One commenter questioned a statement in the proposed rule's preamble in which the commenter claimed
that the agencies had asserted that in Riverside Bayview, the Supreme Court held that it was appropriate
for the U.S. Army Corps of Engineers to regulate "all wetlands, even though some might not have any
impacts on traditional navigable waters." The commenter suggested that viewing the scope of jurisdiction
for isolated wetlands in a vacuum, including wetlands that are not intertwined with the ecosystem of
navigable water, is not supported by Rapanos.
Several commenters argued that the agencies should assert jurisdiction only over those wetlands that are
directly abutting other "waters of the United States." They contended that doing otherwise exceeds the
constitutional limits of the agencies' Clean Water Act jurisdiction. Similarly, one commenter contended
that the word "adjacent" should be given its plain meaning for the sake of regulatory certainty, adding that
the term "neighboring" within the definition of "adjacent" goes "beyond the ordinary understanding" of
adjacency. The same commenter argued that the proposed rule's approach to adjacent wetlands exceeds
the scope of the agencies' statutory authority and is inconsistent with Supreme Court case law and the
Clean Water Act's cooperative federalism structure.
Other commenters suggested that the proposed rule's approach to adjacent wetlands is legally defensible
and is supported by relevant Supreme Court precedent, particularly Riverside Bayview, as well as
available science. Several commenters argued that all wetlands adjacent to other "waters of the United
States"—not just those adjacent to the "foundational waters"—should be categorically jurisdictional.
Some of these commenters asserted that providing categorical protection for such wetlands is necessary to
achieve the Clean Water Act's statutory objective. Others asserted that categorical jurisdiction over
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adjacent wetlands is supported by the Clean Water Act's text and legislative history. Another commenter
argued that the Supreme Court upheld the agencies' assertion of jurisdiction over wetlands adjacent to
other "waters of the United States" in Riverside Bayview. Some commenters asserted that the significant
nexus standard and the relatively permanent standard should not apply to adjacent wetlands because such
features should be categorically jurisdictional under the Act pursuant to the best available science.
Agencies' Response: The agencies agree with commenters that the rule's approach to
adjacent wetlands is legally defensible and is supported by relevant Supreme Court
precedent as well as available science.
The agencies disagree with commenters that the use of the relatively permanent standard in
the rule is inconsistent with the plurality in Rapanos. See Final Rule Preamble Section
IV.C.5. In any case, this final rule is not based on an application of the Marks test for
interpreting Supreme Court decisions. In other words, while the agencies' interpretation of
the statute is informed by Supreme Court decisions, including Rapanos, it is not an
interpretation of the multiple opinions in Rapanos, nor is it based on an application of the
Supreme Court's principles to derive a governing rule of law from a decision of the Court
in a case such as Rapanos where "no opinion commands a majority." Rapanos, 547 U.S. at
758 (Roberts, C.J., concurring) (citing Marks v. United States, 430 U.S. 188,193 (1977)).
Rather, this final rule codifies the agencies interpretation of "navigable waters," informed
by the relevant revisions of the Clean Water Act and the statute as a whole, as well as the
scientific record, relevant Supreme Court case law, input from public comment, 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" including more
than a decade of implementing regulations after Rapanos. See Final Rule Preamble Section
IV.A.
The agencies disagree with commenters that argued that Justice Kennedy required that each
wetland be judged in its own right, using the significant nexus test. Again, this final rule is
not based on an application of the Marks test for interpreting Supreme Court decisions. See
Final Rule Preamble Section IV.A. Justice Kennedy explicitly stated that similarly situated
waters should be assessed for a significant nexus "alone, or in combination." 547 U.S. at 780.
Assessing the functions of identified waters in combination is consistent not only with the
significant nexus standard, as described in section IV.A of the Final Rule Preamble, but with
the science demonstrating how upstream waters affect downstream waters. Scientists
routinely analyze the combined effects of groups of waters, aggregating the known effect of
one water with those of ecologically similar waters in a specific geographic area, or to a
certain scale.
The agencies disagree with commenters that state that the rule does not adequately look to
the significance of the connection. The agencies have established a definition of
"significantly affect" in this rule for purposes of determining whether a water meets the
significant nexus standard to mean "a material influence on the chemical, physical, or
biological integrity of' a paragraph (a)(1) water. This rule identifies specific functions that
will be assessed and identifies specific factors that will be considered when assessing
whether the functions provided by the water, alone or in combination, have a material
influence on the integrity of a traditional navigable water, the territorial seas, or an
interstate water. The standard cannot be met by merely speculative or insubstantial effects
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on those aspects of those paragraph (a)(1) waters, but rather requires the demonstration of
a "material influence." In this rule, the agencies have specified that a "material influence" is
required for the significant nexus standard to be met. The phrase "material influence"
establishes that the agencies will be assessing the influence of the waters either alone or in
combination on the chemical, physical, or biological integrity of a paragraph (a)(1) water
and will provide qualitative and/or quantitative information and articulate a reasoned basis
for determining that the waters being assessed significantly affect a paragraph (a)(1) water.
See Final Rule Preamble Section IV.C.9.
The Supreme Court's statement in Riverside Bayview that "the Court went on to note that to
achieve the goal of preserving and improving adjacent wetlands that have significant
ecological and hydrological impacts on traditional navigable waters, it was appropriate for
the Corps to regulate all adjacent wetlands, even though some might not have any impacts
on traditional navigable waters," speaks for itself. Riverside Bayview at 135 n.9.
The agencies disagree with commenters stating that the scope of adjacent waters covered by
the rule exceeds constitutional limits. See Final Rule Preamble Section IV.A.3.
The agencies disagree that the term "neighboring" within the definition of "adjacent" goes
"beyond the ordinary understanding" of adjacency. The definition of adjacent is a
longstanding and familiar definition that is supported by the text of the statute, Supreme
Court case law, and science. See Final Rule Preamble Section IV.C.8.b. The well-established
definition of adjacent also accords with the term's plain meaning. See Final Rule Preamble
Section IV.A.2.b.ii.
Finally, the agencies agree that providing categorical protection of adjacent wetlands can be
a means of achieving the objective of the Clean Water Act, but disagree that it is the only
means. As noted by Justice Kennedy, the agencies can reasonably proceed to determine
which tributaries and their adjacent wetlands are jurisdictional through regulations or
adjudication. See 547 U.S. at 780-81; see also NLRB v. Bell Aerospace Co., 416 U.S. at 294.
With respect to wetlands adjacent to tributaries, the agencies are requiring case-specific
determinations of whether such wetlands meet the relatively permanent standard or the
significant nexus standard in this rule.
2.3.6 "Other Waters"
Many commenters addressed the agencies' legal authority to assert jurisdiction over the category of
waters described in paragraph (a)(3) of the proposed rule; i. e., the "other waters" category. Some
commenters suggested that the proposed rule's approach to "other waters" is legally defensible. Other
commenters suggested that per the Supreme Court's decision in SWANCC, the agencies lack authority to
assert jurisdiction over "other waters" altogether. Some commenters contended that the proposed rule's
inclusion of "other waters" is also inconsistent with Rapanos.
Multiple commenters stated that the proposed rule's inclusion of the "other waters" category would
impermissibly assert jurisdiction over a wide range of features that are far from navigable-in-fact and that
have only minor volumes of flow. A few commenters expressed concern that although the proposed rule
recognizes the importance of the strength of a feature's connection to downstream waters, as well as the
distance of "other waters" to navigable waters, the preamble to the proposed rule indicates that the
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agencies may rely too much on scientific principles when making jurisdictional determinations in a
manner that improperly expands the scope of the agencies' authority. Other commenters, however,
suggested that the proposed rule should provide broader protections for "other waters." Several of these
commenters argued that such an approach would not be inconsistent with Rapanos, SWANCC, ox Maui.
Additionally, several commenters argued that the significant nexus test is only applicable to tributaries
and/or adjacent wetlands and cannot be applied to "other waters," including because Justice Kennedy's
Rapanos concurrence discussed significant nexus only in the context of wetlands. One of these
commenters asserted that the agencies "should not assume that a test devised in the context of wetlands
should also apply to determine the jurisdictional status of other types of waters that may not perform the
same functions (or to the same degrees) as do wetlands," citing Justice Kennedy's statements about the
importance of wetlands, Rapanos, 547 U.S. at 777 ("Important public interests are served ... by the
protection of wetlands in particular."); id. ("Scientific evidence indicates that wetlands play a critical role
in controlling and filtering runoff."). This commenter further noted that "[a]t least one lower court has . . .
concluded that the significant nexus test does not automatically apply to every class of waters,"
referencing San Francisco Baykeeper v. Cargill Salt Division, 418 F.3d 700, 707 (9th Cir. 2007).
Moreover, one commenter indicated that applying the significant nexus standard to "other waters" that are
similarly situated is not the intention of Congress nor of the Supreme Court. Another commenter argued
that the agencies should not consider water functions that indicate isolation between water features as a
basis for finding a significant nexus for "other waters." The commenter cited Maui v. Hawaii Wildlife
Fund, 140 S. Ct. 1462, 1470 (2020), for the proposition that, while recognizing the connection of all
water, the Supreme Court still declined to grant jurisdiction over all waters—even water that could
influence downstream water quality—for Clean Water Act purposes.
Finally, multiple commenters criticized the agencies' removal of references to interstate or foreign
commerce in the proposed rule's paragraph (a)(3) provision as arbitrary, capricious, and/or not supported
by law. Other commenters criticized this change to the 1986 regulations based on the argument that the
Supreme Court in SWANCC did not strike down or invalidate that element of the regulations. One of
these commenters argued that alternative grounds for asserting jurisdiction based on effects on interstate
or foreign commerce thus remained viable post-SWANCC.
A few commenters stated that failing to require an effect on interstate commerce would unlawfully
expand federal jurisdiction over "other waters" to features such as ephemeral and isolated waters and
wetlands. Another commenter suggested that the agencies could not fulfill the Clean Water Act's
statutory objective without providing for jurisdiction over "other waters" that could affect interstate and
foreign commerce. This commenter emphasized that the Commerce Clause does not limit Congress to
regulating only navigable waters and referenced the statement in United States v. Holland, 373 F. Supp.
665, 673 (M.D. Fla. 1974) that "[i]t is beyond question that water pollution has a serious effect on
interstate commerce and that the Congress has the power to regulate activities . . . which cause such
pollution." A different commenter similarly urged the agencies to retain the "commerce-based"
provisions of the "other waters" category based on the grounds that Congress was exercising its "full"
Commerce Clause power—not just its power over navigation—in promulgating the Clean Water Act.
Agencies' Response: The agencies agree with commenters that the rule's approach to "other
waters" is legally defensible. The agencies disagree with commenters that stated that the
agencies lack authority based on Supreme Court decisions to assert jurisdiction over waters
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not identified in paragraphs (a)(1) through (a)(4) of the rule. First, as explained further in
Final Rule Preamble Section IV.A.l, in this rule the agencies are exercising the authority
granted to them by Congress to construe and implement the Clean Water Act and to
interpret an ambiguous term and its statutory definition. Therefore, while the agencies'
interpretation of the statute is informed by Supreme Court decisions, including Rapanos, it
is not an interpretation of SWANCC or the multiple opinions in Rapanos, nor is it based on
an application of the Supreme Court's principles to derive a governing rule of law from a
decision of the Court in a case such as Rapanos where "no opinion commands a majority."
The agencies disagree that asserting jurisdiction over any waters that meet the significant
nexus standard, including any paragraph (a)(5) waters, is inconsistent with SWANCC or
Rapanos. Based on the law, the science, and agency expertise, the agencies conclude that the
significant nexus standard applies to tributaries, adjacent wetlands, and intrastate lakes, as
well as ponds, streams, or wetlands not covered by other categories (i.e., paragraph (a)(3),
(a)(4), and (a)(5) waters under the final rule). In addition, the Court in SWANCC did not
hold that "other waters" (a category that has been modified and codified in this rule as
paragraph (a)(5) waters) could never be jurisdictional; rather it held that the potential use
of isolated ponds as habitat for migratory birds could not be used as the sole basis to justify
treating those ponds as "waters of the United States." See 531 U.S. at 164-65,171-72.
Indeed, the SWANCC Court in describing Riverside Bayview stated that "it was the
significant nexus between the wetlands and 'navigable waters' that informed our reading of
the CWA" in that case. Id. at 167. The agencies also disagree with commenters'
characterization of a statement by the Ninth Circuit in San Francisco Baykeeper v. Cargill
Salt Division, 481 F.3d 700,707 (9th Cir. 2007) as a holding that the significant nexus
standard does not apply to all types of waters. First, it is clear that Justice Kennedy's
significant nexus standard is not limited to wetlands. Justice Kennedy stated: "to constitute
'navigable waters' under the Act, a water or wetland must possess a 'significant nexus' to
waters that are or were navigable in fact or that could reasonably be so made." Rapanos at
759 (citing SWANCC, 531 U.S. at 167,172) (emphasis added).
Second, in the context of the case, the statement is about the interplay between the 1986
regulatory definition of "waters of the United States" and the Rapanos case. The adjacency
provision of the 1986 regulations applies only to wetlands and the water at issue in the case
was a pond. The Ninth Circuit's decisions after Baykeeper further demonstrate that
commenters' view of the decision is erroneous; the Ninth Circuit has applied the Kennedy
standard to non-wetland waters. For example, in United States v. Vierstra, 2012 U.S. Appeal
LEXIS 16876, **3 (9th Cir. Aug. 9, 2012), the Ninth Circuit upheld a finding of jurisdiction
over a tributary based on the significant nexus standard.
The agencies disagree with commenters who stated that "failing to require an effect on
interstate commerce" would unlawfully expand federal jurisdiction over "other waters."
First, the rule is well within the bounds of the Commerce Clause, in part because the
agencies have deleted the broad Commerce Clause bases for jurisdiction in the 1986
regulations. See Final Rule Preamble Section IV.A.3 and IV.C.6. Second, the replacement of
those interstate commerce bases for jurisdiction with the relatively permanent standard and
the significant nexus standard narrows the scope of the rule rather than broaden it.
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Other commenters stated that the rule does not go far enough in protecting paragraph
(a)(5) waters and the agencies should retain the broad Commerce Clause jurisdictional
factors. While the agencies agree that the Supreme Court in SWANCC did not vacate (a)(3)
of the 1986 regulation, the Court did conclude that Congress was utilizing an aspect of its
Commerce Clause authority, so the agencies have concluded that this rule's reliance on the
relatively permanent standard and significant nexus standard properly balances the Clean
Water Act's broad statutory objective, while giving meaning to the word "navigable."
Accordingly, the agencies are not asserting jurisdiction over waters and wetlands simply
because "the use, degradation or destruction of which could affect interstate or foreign
commerce."
2.3.7 Ditches
A few commenters addressed the issue of the agencies' legal authority to assert jurisdiction over ditches.
Several commenters argued that the proposed rule would improperly assert jurisdiction over ditches by
not requiring the continuous connections required by Rapanos. A few commenters stated that, to provide
clarity and consistency with the agencies' historical treatment of ditches, most ditches should be
excluded.
One commenter argued that the proposed rule classified a ditch as both a "water of the United States" and
a point source contrary to the Water Transfers Rule, 40 CFR 122.3.
Other commenters suggested that the proposed rule's approach to ditches is legally defensible and
supported by case law, particularly where a ditch functions as a tributary. As support, one of these
commenters stated that the proposed rule's treatment of ditches and other channels as tributaries is
consistent with the authority granted by the Clean Water Act and as interpreted by district and appeals
courts and all Supreme Court precedent, except the Rapanos plurality.
Agencies' Response: The agencies disagree with commenters who argued that the proposed
rule would improperly assert jurisdiction over ditches by not requiring the continuous
connections described by Rapanos. As discussed in the final rule preamble, the scope of the
ditch exclusion is consistent with the agencies' longstanding practice and technical
judgment that certain waters and features are not subject to regulation under the Clean
Water Act. The exclusion is also informed by Rapanos. The agencies have concluded that
the relatively permanent standard in Rapanos on its own is insufficient to achieve the
objective of the Act. See Section IV.A of the Final Rule Preamble. However, the relatively
permanent standard is generally consistent with the agencies' longstanding practice of
finding certain ditches that lack important hydrogeomorphic features to be non-
jurisdictional. The agencies also disagree with commenters who asserted that to provide
clarity and consistency with the agencies' historical treatment of ditches, most ditches
should be excluded from jurisdiction. Importantly, the agencies' treatment of ditches in the
final rule is consistent with the agencies' historical treatment of ditches under the pre-2015
regulatory regime and the 2019 Repeal Rule. In accordance with this historical treatment,
the final rule excludes certain ditches from jurisdiction. In addition, where a ditch is not
excluded from jurisdiction, it is only jurisdictional if it satisfies the terms of the categories of
waters that are considered jurisdictional under this rule. For example, a ditch that is not
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excluded, but does not satisfy either the relatively permanent or significant nexus standard
would not be jurisdictional under this rule.
The agencies disagree with the commenter who argued that finding that a ditch can be both
a "water of the United States" and a point source is contrary to the Water Transfer Rule.
The agencies have historically taken the position that a ditch can be both a "water of the
United States" and a point source and are returning to that longstanding position.21 See
Section IV.C.7.c.i.3 of the Final Rule Preamble for further discussion of this issue. EPA's
regulations exclude from section 402 permitting requirements discharges from a water
transfer. Water transfer means an activity that conveys or connects waters of the United
States without subjecting the transferred water to intervening industrial, municipal, or
commercial use. This exclusion does not apply to pollutants introduced by the water
transfer activity itself to the water being transferred. 40 CFR 122.3(i). There is no
contradiction between these two rules. The conveyance or connection of "waters of the
United States" from a ditch that is both a "water of the United States" and a "point source"
is exempt from 402 permitting requirements under the water transfers regulation. The
conveyance or connection of "waters of the United States" from a ditch that is not a "water
of the United States" and is a "point source" is not exempt under the water transfers
regulation and may require a permit.
The agencies agree with commenters who suggested that the proposed rule's approach to
ditches was legally defensible and supported by case law. See Section IV.C.7.c.i of the Final
Rule Preamble for further discussion of the agencies' approach to determining jurisdiction
over ditches.
2.3.8 "Foundational Waters"
A commenter argued that "foundational waters" must "encompass waters that were already federally
protected at the time of the Federal Water Pollution Control Act Amendments of 1972," quoting the
agencies' statement in the preamble to the proposed rule that there is an "indisputable federal interest in
the protection of the foundational waters that prompted Congress to enact the various incarnations of the
Act," 86 FR 69400.
One commenter stated that the proposed rule should cover waters and adjacent wetlands that support
plants and animals traditionally harvested by indigenous people as categorically jurisdictional
"foundational waters" on the basis that such waters "are susceptible of supporting waterborne commerce."
Another commenter claimed that the proposed rule would allow for the assertion of jurisdiction over too
many water features because the relatively permanent and significant nexus standards each tie back to
overly broad categories of "foundational waters."
Agencies' Response: The agencies are not using the term "foundational waters" in the final
rule preamble or rule text. The agencies used the phrase "foundational waters" in the
preamble to the proposed rule simply for convenience and readability rather than writing
the phrase "traditional navigable waters, the territorial seas, and interstate waters"
21 See supra note 20.
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repeatedly. The agencies are not categorically covering all waters that were already
federally protected at the time of the Federal Water Pollution Control Act Amendments of
1972, but are providing that certain waters—not including paragraph (a)(1) waters—are
only jurisdictional if they meet either the relatively permanent standard or the significant
nexus standard. The agencies have discretionary authority to determine jurisdiction either
through categorical rulemaking or through informal adjudication. The agencies are also not
establishing in the rule all waters and adjacent wetlands that support plants and animals
traditionally harvested by indigenous people as categorically jurisdictional "foundational
waters" on the basis that such waters "are susceptible of supporting waterborne commerce"
because the agencies are mindful of the Supreme Court's decision in SWANCC regarding
the specific Commerce Clause authority Congress was exercising in enacting the Clean
Water Act—"its traditional jurisdiction over waters that were or had been navigable in fact
or which could reasonably be so made." The agencies disagree that the relatively permanent
standard and significant nexus standard tie back to overly broad categories of waters: the
Clean Water Act fundamentally protects these three categories of waters: traditional
navigable waters are clearly encompassed within the defined term "navigable waters"; the
territorial seas are explicitly mentioned in the definition of "navigable waters"; and,
interstate waters are waters of the several states and therefore unambiguously "waters of
the United States." See Final Rule Preamble Sections IV.A. and IV.C.2.
2.4 Tribal Issues
2.4.1 Federal Trust Responsibility
Multiple commenters stated that the United States has a federal trust responsibility to recognize and
protect tribal lands, assets, and resources, which the commenters asserted may include the water that
flows over and through tribal lands and the natural resources that depend on that water. One commenter
asserted that adopting a broad approach to the significant nexus standard, such as interpreting "in the
region" to mean "in a watershed or subwatershed," would fulfill the agencies' federal trust responsibility
by recognizing "the interrelatedness of tribal resources and the impacts of water on other tribal
resources." Another commenter stated that the federal trust responsibility includes an obligation to consult
with tribes when jurisdictional determinations are made in ceded territories. This commenter asserted that
tribes have specific traditional knowledge and other information about waterbodies that could help inform
a connection to interstate or foreign commerce or aid in the determination of a significant nexus.
One commenter asserted that the agencies must interpret the Clean Water Act as broadly as possible
under the Commerce Clause in order to fulfill their federal trust responsibility. Several commenters
suggested that federal Clean Water Act jurisdiction is necessary to implement the federal trust
responsibility and comply with treaty and reserved rights tied to water quality.
Finally, one commenter urged the agencies to review the record of proceedings related to tribal provisions
in the Clean Water Act, stating that strengthening these provisions would uphold trust and treaty
obligations and support tribal sovereignty.
Agencies' Response: The agencies acknowledge the federal government's trust
responsibility to federally recognized Indian tribes that arises from treaties, statutes,
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executive orders, and the historical relations between the United States and tribes.
Consistent with this federal trust responsibility, the agencies are committed to maintaining
their longstanding work with federally recognized tribes on a government-to-government
basis. 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. The
final rule also 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 also recognize the value of tribes' indigenous knowledge (also known as
traditional knowledge)—which includes information derived from a tribe's direct contact
with the environment and long-term experiences, as well as extensive observations, lessons,
and skills passed from generation to generation—and the importance of considering this
knowledge as part of decision-making processes. Indeed, the Army is currently in the midst
of reviewing its tribal consultation policy and evaluating issues such as whether to engage in
the tribal consultation process for all draft approved jurisdictional determinations. 87 FR
33756.22
See also the agencies' response to comments in Section 2.4.2 regarding tribal treaty rights
and in Section 2.4.3 regarding the importance of water to tribes.
2.4.2 Tribal Treaty Rights and Water Rights
A few commenters expressed concern around tribal treaty rights that are dependent on water, including
treaty rights to hunt and fish, as well as the attendant water rights necessary to protect the habitat
supporting those treaty rights. One commenter specifically listed tribal watersheds that they asserted
should be protected, including Escavado Wash, Largo Canyon Wash, and the Chaco Wash on the Navajo
Nation. Another commenter asserted that it is important that the agencies protect all waters within the
tribe's treaty-protected usual and accustomed fishing areas, adding that fishing has been the foundation on
which their tribe's culture, economy, and ceremonial life has been based. The commenter further stated
that the Supreme Court has recognized the importance of fishing for tribes, quoting language providing
that it is "not much less necessary to the existence of the Indians than the air they breathed," United States
v. Winans, 198 U.S. 371, 381 (1905).
22 See also U.S. Army, Army Civil Works announces publication of policy initiatives to modernize the Corps' Civil
Works program (June 2, 2022), available at
https://www.army.mil/article/257208/army_civil_works_announces_publication_of_policy_initiatives_to_moderniz
e the corps civil works program.
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Another commenter asserted that clean water is necessary to fulfill their reserved ceded territory rights
that guarantee that the tribe continue hunting, fishing, and gathering in a manner that meets their
subsistence, economic, cultural, medical, and spiritual needs. A different commenter stated that it is
critical that the definition of "waters of the United States" be defined expansive enough to uphold treaty-
reserved rights.
Additionally, several commenters stated that tribal water rights are held in trust by the United States on
behalf of the tribes and that there is no distinction in federal Indian water law as to whether these water
courses are perennial, ephemeral, intermittent, or connected to navigable waters. These commenters
further asserted that tribes are entitled to receive the benefit of their water rights in sufficient quantity and
at a sufficient quality necessary to support the tribe. A couple commenters stated that federal reserved
water rights are founded when a reservation is established for the benefit of a tribe and that typically these
waters that are appurtenant or adjacent to the reservation are the sources of water that satisfy these
reserved water rights and thus require federal protection.
Agencies' Response: The agencies acknowledge tribes' comments regarding the importance
of specific local or regional aquatic resources. The agencies also recognize that tribal treaty
rights constitute federal law. However, treaty rights do 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 regarding the federal trust
responsibility and in Section 2.4.3 regarding the importance of water to tribes.
2.4.3 Importance of Water to Tribes
Multiple commenters discussed the importance of clean water quality to tribes' cultural and traditional
values and uses of water and expressed general opposition to reducing water quality protections. One of
these commenters suggested that the revised definition of "waters of the United States" needs to protect
tribes' cultural and traditional values and uses of water. Another commenter stated that when water
quality is degraded, the tribal community and resources that the community depends upon are threatened.
Agencies' Response: The agencies recognize the importance to tribes of protecting water
resources and the importance of water resources to tribal life generally. As discussed in
Final Rule Preamble Section IV.A, the agencies find that the final rule advances the Clean
Water Act's statutory objective in section 101(a) to "restore and maintain the chemical,
physical, and biological integrity of the Nation's waters" as it is informed by the best
available science concerning the functions provided by upstream tributaries, adjacent
wetlands, and paragraph (a)(5) waters to restore and maintain the water quality of
paragraph (a)(1) waters. Further, the term "waters of the United States" is relevant to the
scope of most federal programs to protect water quality under the Clean Water Act because
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the Clean Water Act uses the term "navigable waters" or "waters of the United States" in
establishing such programs. This rule will thus protect the quality of the nation's waters by
restoring the important protections for jurisdictional waters provided by the Clean Water
Act, including not only protections provided by the Act's permitting programs, but also
protections provided by programs ranging from water quality standards and total
maximum daily loads to oil spill prevention, preparedness, and response programs, to the
tribal and state water quality certification programs.
The agencies also note that Congress has provided for eligible tribes to administer Clean
Water Act programs over their reservations and expressed a preference for tribal
regulation of surface water quality on reservations to ensure compliance with the goals of
the statute. See 33 U.S.C. 1377; 56 FR 64876, 64878-79 (December 12,1991). In addition,
tribes may establish more protective standards or limits under tribal law that may be more
stringent than the federal Clean Water Act. Indeed, section 510 of the Clean Water Act
provides that, unless expressly stated, nothing in the Clean Water Act precludes or denies
the right of any state or tribe to establish more protective standards or limits than the Clean
Water Act. For example, many states and tribes regulate groundwater, and some others
protect vital wetlands that may be outside the scope of the Clean Water Act.
2.4.4 Miscellaneous Tribal Issues
Some commenters discussed the Treaty of 1855 and how it relates to the definition of "waters of the
United States," with one commenter suggesting that the agencies define "waters of the United States" in a
manner that is consistent with not only the Clean Water Act but also the Treaty of 1855. A few
commenters stated that the Treaty of 1855 requires that water quality be maintained such that harvested
fish are free from toxic pollutants and that the Clean Water Act provides a regulatory mechanism for
achieving those requirements. One of these commenters added that the effectiveness of the Clean Water
Act to maintain adequate water quality is limited by the statute's jurisdictional scope.
Several commenters voiced support for creating a separate jurisdictional category of "waters of the United
States" known as "waters of the tribe." A couple of these commenters stated that establishing this
category would recognize tribes' important role in achieving the Clean Water Act's objective. These
commenters suggested that such waters should be jurisdictional even if they do not meet the significant
nexus standard, arguing that the agencies have special obligations to tribes that may not be fully satisfied
by limiting the definition of "waters of the United States" to only those waters that meet the significant
nexus standard.
Agencies' Response: As discussed in the agencies' response to comments in Section 2.4.2,
treaty rights—including the Treaty of 1855—do not expand Congress's grant of authority
to the agencies in the Clean Water Act. The agencies acknowledge, however, that the
jurisdictional scope of the Clean Water Act has a relationship to water quality, and that
water quality itself may be relevant to policies, goals, or requirements set forth in other
federal laws, such as treaties. Indeed, as explained in Final Rule Preamble Section IV.A.2,
the agencies must consider the Clean Water Act's objective "to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters" in interpreting the scope
of the statutory term "waters of the United States," and protecting the chemical, physical,
and biological integrity of the nation's waters means protecting their water quality.
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Nonetheless, the agencies are precluded from exceeding their statutory authority under the
Clean Water Act to achieve specific scientific, policy, or other outcomes.
The agencies acknowledge that both states and tribes have a vital role to play in
implementing and enforcing the Clean Water Act and thereby advancing the Act's
statutory objective. The agencies disagree, however, with commenters who requested
creation of a separate jurisdictional category for "waters of the tribe." States and tribes
may elect to implement their own water quality protection programs more broadly than the
scope of federal jurisdiction, interpreting "waters of the state" or "waters of the tribe" as
exceeding the scope of "waters of the United States." For example, where authorized by
tribal law, tribes may establish more protective water quality standards or choose to
address special hydrologic or aquatic concerns within their borders. Nothing in the Clean
Water Act nor the final rule affects or diminishes tribal authorities to establish protections
for their aquatic resources or from determining what kinds of aquatic resources to regulate
under tribal law to protect the interests of their tribal members.
See also the agencies' response to comments in Section 2.4.1 and Section 2.4.3, regarding the
agencies' federal trust responsibility and the importance of water to tribes, respectively.
2.5 Supreme Court Decisions
The agencies received many comments addressing Supreme Court decisions related to the definition of
"waters of the United States."
Several commenters asserted that the agencies' focus on Riverside Bayview, SWANCC, and Rapanos to
the exclusion of other Supreme Court precedent unjustifiably narrows the scope of the proposed rule, with
a few commenters stating that the agencies should review all relevant Supreme Court case law in
developing a revised definition of "waters of the United States"—including cases beyond Riverside
Bayview, SWANCC, and Rapanos. One of these commenters stated that a broad review of relevant case
law would aid the agencies in their goal of developing a "durable" definition and specifically suggested
that the agencies review ONRC Action v. U.S. Bureau of Reclamation, 798 F.3d 933 (9th Cir. 2015),
which the commenter characterized as a case that "acknowledge [s] the complex hydrologic conditions" of
the Lost and Klamath River basins. In contrast, other commenters suggested that the agencies'
consideration of relevant Supreme Court precedent in developing a jurisdictional standard in the proposed
rule was excessive.
Some commenters stated that the Supreme Court's decisions in Riverside Bayview, SWANCC, and
Rapanos provides support for the notion that the agencies should interpret the term "waters of the United
States" broadly. One of these commenters suggested that Congress intended to exert broad federal
jurisdiction in promulgating the Clean Water Act and argued that SWANCC and Rapanos do not preclude
the agencies from fulfilling this congressional intent. This commenter added that SWANCC and Rapanos
together stand for the proposition that nonnavigable waters with a significant nexus to traditional
navigable waters may jurisdictional. A few commenters asserted that additional Supreme Court precedent,
including International Paper Company v. Ouellette, 479 U.S. 481, 492 (1987), as well as decisions of
the courts of appeals and federal district courts, likewise supports establishing broad jurisdiction under the
Clean Water Act.
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Other commenters suggested that relevant Supreme Court precedent does not support a broad assertion of
Clean Water Act jurisdiction. Some of these commenters asserted that the intent of Riverside Bayview,
SWANCC, and Rapanos is to limit federal jurisdiction under the term "navigable waters" and emphasized
that the term "navigable" must be given import. One commenter stated that the Supreme Court would
likely reject a rule based on connectivity to navigable waters as too broad. Another commenter expressed
support for the agencies' statement in the preamble to the proposed rule that the Supreme Court's
interpretations of "waters of the United States" do not require adoption of the significant nexus standard.
Finally, one commenter urged the agencies to codify the Supreme Court's guidance from SWANCC and
Rapanos in the proposed rule and asserted that doing so would help the agencies construct a legally
defensible regulation that ensures consistent implementation across different regions of the country.
Agencies' Response: The agencies disagree with commenters that assert the agencies
focused too narrowly on the Supreme Court decisions in Riverside Bayview, SWANCC, and
Rapanos. The preamble to the final rule demonstrates that the agencies considered a wide
range of relevant Supreme Court cases. The agencies disagree that the relevant cases do not
support the assertion of jurisdiction in the final rule, but to be clear, in this rule the agencies
are exercising the authority granted to them by Congress to construe and implement the
Clean Water Act and to interpret an ambiguous term and its statutory definition.
Therefore, while the agencies' interpretation of the statute is informed by Supreme Court
decisions, including Riverside Bayview, SWANCC, and Rapanos, it is not an interpretation of
the cases, including the multiple opinions in Rapanos. Rather, this rule codifies the agencies'
interpretation of "navigable waters" informed by the text of the relevant provisions of the
Clean Water Act and the statute as a whole, as well as the scientific record, relevant
Supreme Court case law, input from public comment, 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," including more than a decade of
implementing the regulations after Rapanos. Based on these considerations, the agencies
have concluded that the significant nexus standard in this rule is the best interpretation of
section 502(7) of the Clean Water Act.
2.5.1 Riverside Bayview
Many commenters asserted that the proposed rule is consistent with the Supreme Court's decision in
Riverside Bayview. Several of these commenters suggested that the Supreme Court in Riverside Bayview
recognized that the agencies may exert a broad scope of jurisdiction under the Clean Water Act. Further,
some commenters suggested that the Court in Riverside Bayview deferred to the agencies as technical
experts in determining the bounds of Clean Water Act jurisdiction.
Other commenters suggested that the proposed rule is not consistent with the Supreme Court's decision in
Riverside Bayview. One of these commenters specifically referenced the proposed rule's approach to
wetlands adjacent to relatively permanent waters. The commenter referenced the proposed rule's
discussion that a "continuous surface connection" does not require surface water to be continuously
present between the wetland and the tributary and referenced the example of a man-made ditch that drains
from the wetland to the relatively permanent water, arguing that this "provides an opportunity for
regulating under the relatively permanent standard wetlands that are quite distant (maybe miles) from the
relatively permanent water under the guise of adjacency" and "that such wetlands do not present the
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boundary-drawing problem addressed in Riverside Bayview." Another commenter similarly argued that
"it plainly is not enough for wetlands to have 'only an intermittent, physically remote hydrologic
connection to "waters of the United States'" because such wetlands 'do not implicate the boundary-
drawing problem of Riverside Bayview'" (citing Rapanos, 547 U.S. at 742 (plurality)).
Finally, a different commenter asserted that though the Court in Riverside Bayview found that Congress
intended "navigable waters" to include "at least some waters that would not be deemed 'navigable' under
the classical understanding of that term," the Court "repudiated the idea that Congress abandoned the
concept of navigability altogether." This commenter argued that the proposed rule does not give enough
meaning to the term "navigable."
Agencies' Response: The agencies agree that the rule is consistent with Riverside Bayview.
The agencies disagree with commenters that assert that the rule does not give enough
meaning to the term "navigable." The Clean Water Act delegates authority to the agencies
to construe the key term "navigable waters," which Congress broadly defined to mean "the
waters of the United States, including the territorial seas." 33 U.S.C. 1362(7) (Clean Water
Act section 502(7)). The text of the statute, including in particular sections 501 and 502(7),
and congressional intent provide that delegation of authority. And the Supreme Court has
affirmed the conclusion that the agencies have the authority to define the bounds of "waters
of the United States." In this rule, the agencies are using the traditional tools of statutory
construction to exercise their delegated authority. Further, the rule is founded upon the
longstanding 1986 regulations, familiar to Congress and the Court, while incorporating
important limitations based on the text of the statute. The breadth of the definition of
"navigable waters" reflects a deliberate choice by Congress to both enact a statute with a
broad scope of waters protected by federal law and to delegate the authority to interpret the
specialized term and its definition to the expert agencies. See Final Rule Preamble Section
IV.A.1.
The agencies disagree with commenters' characterization of Riverside Bayview"1 s view of the
role of the agencies and with commenters' characterization of the boundary drawing
problem. In Riverside Bayview, the Supreme Court affirmed the conclusion that it is the
agencies' role to interpret the term "waters of the United States." As the Court explained in
Riverside Bayview, Congress delegated a "breadth of federal regulatory authority" and
expected the agencies to tackle the "inherent difficulties of defining precise bounds to
regulable waters." 474 U.S. at 134. In addition, the Riverside Bayview Court identified
"shallows, marshes, mudflats, swamps, [and] bogs" as examples of "areas that are not
wholly aquatic but nevertheless fall far short of being dry land," and it observed that
"[w]here on this continuum to find the limit of 'waters' is far from obvious." 474 U.S. at
132. The line-drawing problem in Riverside Bayview did not involve identifying the
boundary between a jurisdictional stream and an adjacent wetland. Rather, the line-
drawing problem involved the criteria that should be used to determine whether particular
types of hydrogeographic features should be regarded as "waters" under the Clean Water
Act. That line-drawing problem—in essence, determining how wet is wet enough—can arise
even when a particular swamp or marsh is separated by a barrier from a nearby lake or
stream. After discussing at some length the regulatory definition of "wetlands" and its
application to the property at issue in that case, see id. at 129-131, the Riverside Bayview
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Court upheld as reasonable "the Corps' approach of defining adjacent wetlands as 'waters'
within the meaning of' the Clean Water Act. Id. at 132. Final Rule Preamble Section
IV.A.3.
2.5.2 SWANCC
Multiple commenters expressed the view that SWANCC removed or at least limited the agencies' ability
to assert federal jurisdiction over non-navigable, "isolated," intrastate waters. Some commenters argued
that the agencies should interpret SWANCC broadly as limiting jurisdiction over tributaries, ditches,
wetlands, and other bodies of water not at issue in SWANCC. One commenter characterized the decision
as "[laying] the groundwork for the basic proposition that federalism, states' rights, and the limits of the
Commerce Clause define the outer bounds of federal CWA authority."
Other commenters argued that the SWANCC decision was specific to an abandoned sand and gravel pit
and addressed only the agencies' authority to assert jurisdiction over a water based solely on its use by
migratory birds. As such, these commenters contended that SWANCC does not provide any basis for
removing protections for tributaries, adj acent waters, or "other waters" covered under the pre-2015
definition.
Some commenters asserted that the proposed rule is inconsistent with SWANCC. A few of these
commenters argued that retention of the "other waters" category would be inconsistent with SWANCC.
Another commenter expressed concern that the suggestion in the proposed rule that a significant nexus
could be found even where there is a lack of hydrologic connection was contrary to SWANCC because,
according to the commenter, "the lack of a hydrologic connection was central to the holding that isolated
ponds are not 'waters of the United States.'" Finally, several commenters argued that the proposed rule
would lead to overly broad federal jurisdiction over potentially all state waters, contrary to the Supreme
Court's holding in SWANCC that the Clean Water Act must be construed in a manner that avoids
federalism and constitutional questions.
Agencies' Response: The agencies disagree that the rule is inconsistent with SWANCC and
disagree with commenters' characterization of the holding in SWANCC. A 5-4 Court in
SWANCC held that the use of "nonnavigable, isolated, intrastate waters" by migratory
birds was not by itself a sufficient basis for the exercise of federal authority under the Clean
Water Act. SWANCC, 531 U.S. at 172. By placing traditional navigable waters, the
territorial seas, and interstate waters at the center of the agencies' jurisdiction and covering
additional waters only where those waters significantly affect (a)(1) waters, this rule reflects
the Court's guidance in SWANCC. While the agencies agree that the SWANCC decision
focused on rejecting the agencies' authority to assert jurisdiction over a water based solely
on its use by migratory birds, the agencies conclude that it is reasonable to inform their
interpretation of the Clean Water Act in this rule by the concerns and limitations identified
by the Court in SWANCC and discussed in section IV.A.3 of this preamble. In addition, to
be clear, in this rule the agencies are exercising the authority granted to them by Congress
to construe and implement the Clean Water Act and to interpret an ambiguous term and its
statutory definition, they are not interpreting Supreme Court decisions.
The agencies disagree that the rule would lead to overly broad federal jurisdiction over
potentially all state waters or is contrary to SWANCC. The agencies find that the rule
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appropriately draws the boundary of waters subject to federal protection by limiting the
scope to the protection of upstream waters that significantly affect the integrity of waters
where the federal interest is indisputable—the traditional navigable waters, the territorial
seas, and interstate waters. Waters that do not implicate federal interest in these paragraph
(a)(1) waters are not included within the scope of federal jurisdiction. The scope and
boundaries of the definition therefore reflect the agencies' considered judgment of both the
Clean Water Act's objective in section 101(a) and the congressional policy relating to states'
rights and responsibilities under section 101(b). See Final Rule Preamble Section IV.A.3.b.
2.5.3 Rapanos
Numerous commenters argued that the proposed rule would cover waters outside the scope of the Clean
Water Act as interpreted in Rapanos and thus exceeds the agencies' statutory authority. Several of these
commenters asserted that the proposed rule misinterprets both the plurality's and Justice Kennedy's
opinions in a way that impermissibly expands federal Clean Water Act jurisdiction.
Other commenters argued that the agencies must "reconcile" the Rapanos plurality's opinion and Justice
Kennedy's concurring opinion by developing a jurisdictional standard that relies on "points of
commonality" between the two opinions rather than adopting what the commenters characterized as the
proposed rule's "either/or" approach to jurisdiction, which the commenters asserted is indefensible. In
contrast, some commenters expressed support for including both the relatively permanent and significant
nexus standard from Rapanos in the proposed rule, including because the four dissenting Justices in
Rapanos stated that they would uphold jurisdiction under either test. Several commenters disagreed with
this position, suggesting that it is improper to invoke the dissent's opinion in Rapanos.
Many commenters discussing Rapanos cited Marks v. United States, 430 U.S. 188 (1977) to support
arguments around what controlling legal principles may be derived from the opinion of five or more
Supreme Court justices when there is no majority opinion, such as in Rapanos. Some of these
commenters asserted that the Rapanos plurality's opinion is controlling under the standard set forth in
Marks, with a few arguing that the plurality's opinion is controlling because it represents a narrower
holding than Justice Kennedy's concurrence. Other commenters stated that under Marks, either the
relatively permanent or significant nexus tests could be used to determine Clean Water Act jurisdiction.
Still other commenters argued that only those limited principles to which both the Rapanos plurality and
Justice Kennedy agreed should be followed.
Some commenters discussing Marks asserted that neither the plurality's nor Justice Kennedy's opinion
could be viewed as controlling. A few of these commenters suggested that the holding in Marks could not
be applied to Rapanos because neither opinion is a logical subset of the other. Another commenter,
however, argued that the significant nexus standard is supported by Rapanos and binding because a
majority of Justices supported it, citing Moses H. Cone Mem 'I Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 17 (1983).
Agencies' Response: While this rule, and the standards articulated in this rule, are
informed by the opinions in Rapanos, they are not dictated by those opinions. Instead, the
standards articulated in the rule represent the agencies' interpretation of the statute as a
whole, consideration of the best available science, and application of the agencies'
experience and technical expertise. Thus, while the agencies disagree that the standards as
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codified in this rule are inconsistent with the opinions in Rapanos, the agencies have
exercised their authority and concluded that the standards as they have articulated them in
this rule are the best interpretation of the statute based on their conclusions in section IV.A
of this preamble. Further, while the agencies' disagree with commenters that the plurality
opinion is controlling or that a rule must be based commonalities between the Kennedy
opinion and the plurality opinion, the rule is not an interpretation of the multiple opinions
in Rapanos, nor is it based on an application of the Supreme Court's principles to derive a
governing rule of law from a decision of the Court in a case such as Rapanos where "no
opinion commands a majority." Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring) (citing
Marks v. United States, 430 U.S. 188,193 (1977) ("Marks")). The Clean Water Act delegates
authority to the agencies to construe the key term "navigable waters," which Congress
broadly defined to mean "the waters of the United States, including the territorial seas." 33
U.S.C. 1362(7) (Clean Water Act section 502(7)). See Final Rule Preamble Section IV.A.1.
2.5.3.1 Plurality's opinion
Multiple commenters asserted that the proposed rule is inconsistent with Justice Scalia's plurality opinion
in Rapanos. Several of these commenters argued that the proposed rule misconstrues the plurality opinion
by relying on a test of whether water flows at least seasonally to meet the relatively permanent standard
and by failing to require relatively permanent waterways to be connected to traditional navigable
waterways.
Some commenters argued that Justice Scalia's plurality opinion in Rapanos should control the definition
of "waters of the United States" such that the proposed rule should include only the relatively permanent
standard.
A few commenters asserted that the proposed rule's reliance on the plurality's relatively permanent test as
an alternative to the significant nexus test is appropriate so long as the test is not too narrowly applied.
One of these commenters urged the agencies to clarify that relatively permanent waters need not flow
perennially and include waters that contain continuous flow during some months of the year but no flow
during dry months; the commenter claimed that this approach would be consistent with the plurality's
opinion. This commenter further argued that the proposed rule's relatively permanent standard should not
require that waters be fed by any particular source, asserting that this approach has no basis in the
plurality's opinion. The commenter also stated that it would be inconsistent with the Clean Water Act's
statutory objective, precedential case law, and relevant science to rely on the relatively permanent
standard as the sole standard for assessing jurisdiction.
Agencies' Response: The agencies' interpretation of the statute is informed by and
consistent with Supreme Court decisions, including Rapanos, but it is not an interpretation
of the plurality opinion or other opinions in Rapanos. "Only a judicial precedent holding
that the statute unambiguously forecloses the agency's interpretation, and therefore
contains no gap for the agency to fill, displaces a conflicting agency construction," and the
fractured decision in Rapanos provides no such precedent See BrandX, 545 U.S. at 982-83.
Rather, this rule codifies the agencies' interpretation of "navigable waters" as well as the
scientific record, relevant Supreme Court case law, input from public comment, 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," including more
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than a decade of implementing the regulations after Rapanos. The Chief Justice emphasized
the breadth of the agencies' discretion in defining "waters of the United States" through
rulemaking; indeed, the agencies' interpretations under the Clean Water Act, Chief Justice
Roberts emphasized, are "afforded generous leeway by the courts." 547 U.S. at 758. With
this rulemaking, the agencies are taking the path prescribed by the Chief Justice. See Final
Rule Section IV.A.1.
The agencies have decided to implement the relatively permanent standard because it is
consistent with the Rapanos plurality opinion, it reflects and accommodates regional
differences in hydrology and water management, and it can be implemented using
available, easily accessible tools. It will therefore be a straightforward approach for the
agencies and the regulated community to implement. In addition, maintaining an
interpretation that encompasses the tributaries considered relatively permanent under the
pre-2015 regulatory regime and the 2020 NWPR addresses the many comments from
stakeholders emphasizing the need for clarity and certainty in the scope of "waters of the
United States." See Final Rule Section IV.C.4.c.ii. However, the relatively permanent
standard is insufficient as the sole standard because it is inconsistent with the Act's text and
objective and runs counter to the scientific principles underlying protection of water
quality. See Final Rule Section IV.A.3.a.ii.
The agencies' interpretation of relatively permanent tributaries to include surface waters
that have flowing or standing water year-round or continuously during certain times of the
year is consistent with the Rapanos plurality's interpretation of "waters of the United
States." The Rapanos plurality interpreted "waters of the United States" as encompassing
"relatively permanent, standing or continuously flowing bodies of water," including
streams, rivers, oceans, lakes, and other bodies of waters that form geographical features.
547 U.S. at 732-33, 739, 742. The plurality noted that its reference to "relatively permanent"
waters did "not necessarily exclude streams, rivers, or lakes that might dry up in
extraordinary circumstances, such as drought," or "seasonal rivers, which contain
continuous flow during some months of the year but no flow during dry months." Id. at 732
n.5 (emphasis in original); see also 85 FR 22289 (citing the same language from the plurality
in support of the 2020 NWPR's interpretation of relatively permanent waters). The agencies
therefore agree with the commenter who stated that the relatively permanent standard can
include waters that do not flow during dry seasons, consistent with the plurality opinion.
The agencies also agree with the commenter who stated that nothing in the plurality opinion
limits the sources of relatively permanent waters. Under the rule relatively permanent
waters can be fed by any source. See Final Rule Section IV.C.4.c.ii.
Tributaries, including relatively permanent tributaries, are only jurisdictional if they flow
directly or indirectly into paragraph (a)(1) waters. There is no text in the Clean Water Act
supporting a more stringent requirement, such as for "direct" flow, and the agencies have
never interpreted the Act to cover only tributaries with "direct" flow. The Rapanos
plurality opinion did not so limit the scope of tributaries covered by the Act. 547 U.S. at 742.
Moreover, the science is clear that the chemical, physical, and biological integrity of
paragraph (a)(1) waters depends on the many tributaries, including headwater streams,
that feed such waters. It would be impossible to restore and maintain the chemical, physical,
and biological integrity as required by the Clean Water Act with a definition of "waters of
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the United States" that included solely the last tributary that flows "directly" into
paragraph (a)(1) waters. Waters that are part of a system that never reaches a paragraph
(a)(1) water, however, such as a small system of streams that ultimately flow to a non-
navigable stream in an intrastate basin with no outlet, are not jurisdictional under the
tributaries provision of this rule.
2.5.3.2 Justice Kennedy's concurrence
Numerous commenters asserted that the proposed rule's significant nexus standard is broader than or
otherwise inconsistent with Justice Kennedy's concurring opinion in Rapanos. Some of these commenters
suggested that Justice Kennedy's opinion does not provide support for applying the significant nexus
standard to features other than tributaries and adjacent wetlands. Several commenters stated that the
proposed rule's significant nexus standard is inconsistent with and thus contrary to Justice Kennedy's
opinion because it uses "or" instead of "and" in referencing the "chemical, physical, or biological
integrity" of downstream waters. Relatedly, a few commenters argued that Justice Kennedy rejected the
notion that a biological or ecological connection alone is sufficient to support a finding of significant
nexus and that the proposed rule thereby expands jurisdiction beyond Justice Kennedy's interpretation of
the Act. Another commenter criticized the proposed rule's significant nexus standard as allowing for a
finding of jurisdiction based on a single function, including contribution of flow, claiming that this is
inconsistent with language in Justice Kennedy's opinion suggesting that a "mere hydrologic connection"
is insufficient to establish jurisdiction. In contrast, another commenter argued that the agencies
misinterpreted Justice Kennedy's significant nexus test in the proposed rule in a manner that reduces
jurisdiction over historically protected waters.
Other commenters asserted that the proposed rule's significant nexus standard is not as stringent as
Justice Kennedy's test, including because it does not require that a significant nexus be demonstrated
through "substantial evidence," a term used in Justice Kennedy's opinion. One commenter argued that the
agencies should apply the legal principles of proximate causation and foreseeability in developing
"objective and measurable criteria as to the extent of scientific evidence needed to identify and assess
similarly situated wetlands in the region to support asserting jurisdiction over a particular wetland" and to
thereby "give meaning to Justice Kennedy's limiting principles." Another commenter stated that federal
courts have found that "significant" does not require statistical significance or specific quantitative data.
A different commenter criticized the proposed rule's approach to aggregation under the significant nexus
standard as being inconsistent with the approach articulated in Justice Kennedy's opinion. This
commenter asserted that Justice Kennedy's approach "focuses on making a significant nexus call for a
particular wetland . . . and then possibly concluding that other similar wetlands also possess a significant
nexus" while, according to the commenter, the proposed rule "would reverse that approach, assessing the
presence or absence of significant nexus for entire groups of waters (not just wetlands) collectively, then
applying that conclusion to each individual water in the class."
Several commenters asserted that Justice Kennedy's significant nexus standard was only intended to be a
check on unreasonable application of the statute rather than justification to extend the reach of Clean
Water Act jurisdiction.
Finally, some commenters argued that Justice Kennedy's opinion is not controlling, arguing in part that it
was not adopted by a majority of the Court, and thus should not dictate Clean Water Act jurisdiction.
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Another commenter, focusing on the proposed rule's reliance on the significant nexus standard, asserted
that the agencies should not base their interpretation of "waters of the United States" on the opinion of a
single Supreme Court Justice.
Agencies' Response: The agencies disagree with commenters that asserted that the rule's
significant nexus standard is broader than or otherwise inconsistent with Justice Kennedy's
concurring opinion in Rapanos. First, the agencies are not basing the rule on the opinion of
a single Justice, and this final rule is not based on an application of the Marks test for
interpreting Supreme Court decisions. In other words, while the agencies' interpretation of
the statute is informed by Supreme Court decisions, including Rapanos, it is not an
interpretation of the multiple opinions in Rapanos, nor is it based on an application of the
Supreme Court's principles to derive a governing rule of law from a decision of the Court
in a case such as Rapanos where "no opinion commands a majority." Rapanos, 547 U.S. at
758 (Roberts, C.J., concurring) (citing Marks v. United States, 430 U.S. 188,193 (1977)).
Rather, with this rule, the agencies are interpreting the scope of the definition of "navigable
waters," informed by relevant Supreme Court precedent, but also based on the text of the
relevant provisions of the Clean Water Act and the statute as a whole, the scientific record,
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.5.b. In addition, the elements of the significant nexus
test are each consistent with the elements as articulated in Justice Kennedy's opinion:
Waters possess the requisite significant nexus if the wetlands "either alone or in
combination with similarly situated [wetjlands in the region, significantly affect the
chemical, physical, and biological integrity of other covered waters more readily understood
as 'navigable.'" Id. at 780. Justice Kennedy's opinion notes that to be jurisdictional, such a
relationship with traditional navigable waters must be more than "speculative or
insubstantial." Id.
The agencies disagree that Justice Kennedy's opinion does not provide support for applying
the significant nexus standard to features other than tributaries and adjacent wetlands.
Justice Kennedy concluded that "to constitute 'navigable waters' under the Act, a water or
wetland must possess a 'significant nexus' to waters that are or were navigable in fact or
that could reasonably be so made." Id. at 759 (citing SWANCC, 531 U.S. at 167,172)
(emphasis added).
The agencies disagree that the proposed rule's significant nexus standard is inconsistent
with and thus contrary to Justice Kennedy's opinion because it uses "or" instead of "and"
in referencing the "chemical, physical, or biological integrity" of downstream waters.
Congress intended the Clean Water Act to "restore and maintain" all three forms of
"integrity," section 101(a), so if any one of them is compromised, then the statute's stated
objective would be contravened. It would be contrary to the plain language of the statute
and subvert the law's objective if the Clean Water Act only protected paragraph (a)(1)
waters upon a showing that there were effects on every attribute of their integrity. As the
agencies stated in the Rapanos Guidance: "Consistent with Justice Kennedy's instruction,
EPA and the Corps will apply the significant nexus standard in a manner that restores and
maintains any of these three attributes of traditional navigable waters." Rapanos Guidance
at 10 & n.35. See Final Rule Preamble Section IV.C.9.
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The agencies disagree that Justice Kennedy rejected the notion that a biological or
ecological connection alone is sufficient to support a finding of significant nexus and that
the proposed rule thereby expands jurisdiction beyond Justice Kennedy's interpretation of
the Act since Justice Kennedy's significant nexus standard refers to effects on "biological"
integrity. The agencies disagree with commenters' criticism of the rule's significant nexus
standard allowing for a finding of jurisdiction based on a single function, including
contribution of flow, claiming that this is inconsistent with language in Justice Kennedy's
opinion suggesting that a "mere hydrologic connection" is insufficient to establish
jurisdiction. Commenters misunderstand; the significant nexus standard in the rule does
not establish jurisdiction simple based on a hydrologic connection, but rather requires an
assessment of whether the water, alone or in combination with other similarly situated
waters in the region, significantly affects the chemical, physical, or biological integrity of a
paragraph (a)(1) water. The agencies disagree with a commenter that argued that the
agencies misinterpreted Justice Kennedy's significant nexus test in the rule in a manner
that reduces jurisdiction over historically protected waters; the rule protects those waters
that significantly affect paragraph (a)(1) waters. The 1986 regulations historically protected
some waters that would not meet the significant nexus standard.
The agencies disagree that the rule's approach to aggregation under the significant nexus
standard is inconsistent with the approach articulated in Justice Kennedy's opinion. The
commenter's assertion that Justice Kennedy's approach "focuses on making a significant
nexus call for a particular wetland ... and then possibly concluding that other similar
wetlands also possess a significant nexus" is inconsistent with Justice Kennedy's opinion
which explicitly stated that the test was whether wetlands "alone or in combination"
significantly affected chemical, physical, or biological integrity of downstream waters.
The agencies disagree with commenters who asserted that Justice Kennedy's significant
nexus standard was only intended to be a check on unreasonable application of the statute.
In Rapanos, Justice Kennedy reasoned that Riverside Bayview and SWANCC "establish the
framework for" determining whether an assertion of regulatory jurisdiction constitutes a
reasonable interpretation of "navigable waters," according to which, with respect to both
the connection from wetlands and nonnavigable waters to navigable waters, "[ajbsent a
significant nexus, jurisdiction under the Act is lacking." 547 U.S. at 767. See Final Rule
Preamble Section IV.A.3.a.i.
2.6 Miscellaneous Court Cases
2.6.1 Sackett v. EPA
Many commenters discussed Sackett v. Environmental Protection Agency23, a case that is currently
pending before the Supreme Court. Most commenters who discussed that case argued that the agencies
should withdraw or pause this rulemaking until there is a ruling in Sackett. Many of these commenters
argued that the final opinion in Sackett will likely provide relevant information to inform the agencies'
23 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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current rulemaking, particularly with respect to the scope of Clean Water Act jurisdiction, including
whether and how the significant nexus standard should still apply in assessing jurisdiction. Some
commenters asserted generally that waiting for the Supreme Court's opinion in Sackett before completing
the rulemaking would provide greater clarity and reduce confusion. Further, several commenters
suggested the agencies wait for the Supreme Court's decision in Sackett before undertaking a second
rulemaking process. One commenter suggested that the fact that the Supreme Court has decided to hear
the Sackett case over the Biden Administration's objections is a strong indication of the Court's leaning.
In contrast, other commenters stated that the agencies should continue the rulemaking to develop a
definition of "waters of the United States" that relies on science rather than leaving the definition "in the
hands of the judiciary." Another commenter urged the agencies to move forward promptly in issuing a
new definition of "waters of the United States" ahead of the Supreme Court's ruling in Sackett, arguing
that issuing a final rule by Spring 2023 could enable the agencies to request that the Supreme Court defer
their decision to the agencies, which the commenter argued would prevent a narrow interpretation of
Clean Water Act jurisdiction. This commenter also expressed the view that the agencies had engaged in
sufficient outreach and provided a sufficient opportunity to comment on the proposed rule such that it was
appropriate for the agencies to move forward in finalizing the rule without providing additional
opportunities for public comment.
Finally, a commenter stated that if the agencies decide to continue with the current rulemaking, they
should forgo making material changes to the pre-2015 regulatory regime so as to avoid subjecting the
regulated community to "yet another interim definition" that may be superseded by the Supreme Court's
decision in Sackett.
Agencies' Response: The agencies disagree with commenters that stated that the agencies
should withdraw or pause this rulemaking until there is a decision in Sackett. The Sackett
case is not a challenge to any of the rules defining "waters of the United States," but presents
the question of the Act's jurisdictional standard for adjacent wetlands in the context of a
challenge to an EPA administrative compliance order for the unauthorized discharge of a
pollutant into a "water of the United States." In this rulemaking, the agencies are exercising
the authority granted to them by Congress under the Clean Water Act. See Final Rule
Preamble Section IV.A.1. The final rule increases clarity and reduces confusion. The
agencies agree that they have provided sufficient notice and opportunity to comment to
finalize the rule.
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 thus disagree that the final rule is "interim" and
have made targeted changes to the pre-2015 regime consistent with the law, the science and
agency expertise.
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2.6.2
County of Maui v. Hawaii Wildlife Fund
Multiple commenters discussed County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1476 (2020)
("Maui"), where the Supreme Court held that the Clean Water Act "requires a permit when there is a
direct discharge from a point source into navigable waters or when there is the functional equivalent of a
direct discharge," 140 S. Ct. at 1476.
A few commenters suggested that the Supreme Court's ruling in Maui lends general support to the notion
of relying on science to make decisions on a case-by-case basis. One of these commenters asserted that
the proposed rule "aligns" with the Supreme Court's articulation in Maui of "a multi-factor test designed
for factual case-by-case analyses."
In contrast, a couple commenters criticized the proposed rule's significant nexus standard as being less
clear than the Maui functional equivalent standard. Another commenter asserted that Maui's functional
equivalent standard provides greater protection for "waters of the United States" than the proposed rule's
significant nexus standard, which the commenter stated would "dramatically reduce the scope of
protected waters."
Several commenters expressed concern that the Maui test could adversely impact farmers and ranchers,
stating that many agricultural activities could result in the "functional equivalent" of a direct discharge.
One of these commenters suggested that Maui underscores the importance of determining whether a
permit is needed for certain activities because, according to the commenter, historically exempt
discharges may now be covered under Maui. Another commenter agreed that Maui would "expand the
range of discharges, including from agricultural operations," that require permitting under the Act.
Moreover, a commenter asked the agencies to add an explicit exclusion for groundwater to the regulatory
text of the definition of "waters of the United States" to avoid the potential for future confusion over
whether Clean Water Act jurisdiction extends to groundwater. A different commenter asserted that
Maui's recognition that groundwater can convey pollutants from point sources to jurisdictional surface
waters does not give the agencies authority to expand Clean Water Act jurisdiction over groundwater.
Finally, a couple commenters, citing Maui, expressed the view that allowing unregulated pollution of
"other waters" that significantly affect downstream navigable waters is the functional equivalent of
polluting those navigable waters themselves.
Agencies' Response: The agencies agree with commenters who stated that the Supreme
Court's ruling in Maui supports the agencies' approach in the final rule of using case-specific
analyses to determine jurisdiction over certain waters. As described in the final rule
preamble, the Supreme Court's "functional equivalent" standard in Maui has several key
characteristics in common with the significant nexus standard and the agencies' approach in
the final rule. Notably, both the "functional equivalent" standard and the significant nexus
standard are multi-factor, case-specific standards that should be applied while keeping in
mind the purposes of the Clean Water Act. See section IV.A.3.a.iii of the final rule preamble
for further discussion of the similarities between these two standards.
The agencies disagree with commenters who asserted that the significant nexus standard is
less clear than the Maui functional equivalent standard. The final rule clarifies the
significant nexus standard by defining the term "significantly affect" for purposes of
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determining whether a water meets the significant nexus standard, and identifying specific
functions that will be assessed and identifies specific factors that will be considered when
determining whether the functions provided by the water, either alone or in combination,
have a material influence on the integrity of a traditional navigable water, the territorial
seas, or an interstate water. These aspects of the final rule add clarity to the significant nexus
standard. The agencies also disagree with the commenter who asserted that Maui's
functional equivalent standard provides greater protection for "waters of the United States"
than the significant nexus standard. These two standards address different jurisdictional
questions—the "functional equivalent" standard evaluates whether a discharge is
jurisdictional while the significant nexus standard evaluates whether a water is
jurisdictional—so it is not appropriate to compare whether one is more protective than the
other.
Comments regarding the impact of Maui on farmers and ranchers are outside the scope of
this rulemaking. The Supreme Court decision in Maui addresses which discharges are
jurisdictional under the Clean Water Act while the final rule addresses which waters are
jurisdictional under the Act. While both questions are important, they are distinct. The final
rule does not alter or otherwise address how Maui applies to various factual scenarios.
The agencies disagree with the commenter who suggested adding an explicit exclusion for
groundwater to the final rule regulatory text. The agencies are not adding an exclusion for
groundwater to the regulatory text because groundwater is not surface water and therefore
does not fall within the possible scope of "navigable waters." There is thus no need for a
regulatory exclusion. This position is longstanding and consistent with Supreme Court case
law. See section IV.C.7 of the final rule preamble for further discussion of the jurisdictional
status of groundwater. The agencies agree with the commenter who asserted that Maui does
not give the agencies authority to expand Clean Water Act jurisdiction over groundwater
and the final rule does not do so.
In response to comments regarding the pollution of "other waters" (i.e., waters not identified
in paragraphs (a)(1) through (a)(4) of the final rule), the agencies note that certain of these
waters are jurisdictional under the final rule and thus unauthorized discharges into those
waters are prohibited. See section IV.C.6 of the final rule preamble for discussion of waters
not identified in paragraphs (a)(1) through (a)(4) of the final rule. The agencies also note that
discharges of pollutants do not need to be directly to "waters of the United States" to be
subject to the prohibition in section 301 of the Clean Water Act or require a permit under
section 402 of the Act. In addition, discharges into tributaries that are no longer "waters of
the United States" can themselves become point sources triggering potential liability for all
upstream pollution for the last landowner before the "water of the United States."
2.6.3 Other Cases
One commenter asserted that the proposed rule's "expansive definitions" are in tension with "recent
guidance" the Supreme Court provided for EPA "when defining the limits of its authority," citing the
Supreme Court's opinion in Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2016) ("When an
agency claims to discover in a long-extant statute an unheralded power to regulate 'a significant portion
of the American economy,' we typically greet its announcement with a measure of skepticism.").
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One commenter argued that the agencies have misinterpreted Natural Resources Defense Council v.
Callaway, 392 F. Supp. 685 (D.D.C. 1975) and United States v. Holland, 373 F. Supp. 665 (M.D. Fla.
1974), suggesting that neither case supports the notion that the agencies' regulations at that time were too
narrow. With respect to Callaway, the commenter emphasized that it was a "one-page decision issued
without any explanatory justification" and "involved one narrow aspect of a rule that itself was an outlier
in the evolution of ['waters of the United States']," referencing 39 FR 12119 (Apr. 3, 1974) and stating
that this definition "was inconsistent" with both earlier and later regulations. Regarding Holland, the
commenter criticized the agencies' description of the case as pertaining to the Corps' regulations,
asserting that the court did not opine on the Corps' regulations and instead agreed with the United States
that the features at issue were jurisdictional. This commenter asserted that neither case justifies not
returning to the agencies' early 1970s regulations, which the commenter characterized as the "last valid"
interpretation of "waters of the United States," citing 38 FR 34164, 34165 (Dec. 11, 1973); 38 FR 13528,
13529 (May 22, 1973); 39 FR4532, 4533 (Feb. 4, 1974).
Agencies' Response: The agencies disagree that the rule conflicts with recent Supreme
Court precedent or reflects any transformative new assertion of agency authority. 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 a
reasonable interpretation based on the record before the agencies, including the best
available science, as well as the agencies' expertise and experience implementing the pre-
2015 regulatory regime. Contrary to some commenters' suggestions, the final rule does not
represent an expansion beyond the text of the pre-2015 regulations and is narrower in some
respects than the pre-2015 regulatory regime. Further, as discussed in Section IV.C of the
Preamble to the Final Rule, the final rule narrows the scope of jurisdiction from the text of
the 1986 regulations, including by replacing the broad Commerce Clause basis for
jurisdiction under the former paragraph "(a)(3)" or "other waters" provision with the
narrower relatively permanent and significant nexus standards in paragraph (a)(5) in the
final rule. The rule also codifies numerous exclusions from the definition of "waters of the
United States" that had previously only been generally treated as not jurisdictional through
guidance and practice. See also Final Rule Preamble Section V.A, explaining that the final
rule will generate de minimis costs and benefits as compared to the pre-2015 regulatory
regime that the agencies are currently implementing.
The agencies also disagree with commenters suggesting that the rule is in tension with the
guidance of the Supreme Court in Utility Air Regulatory Group v. EPA. 573 U.S. 302, 324
(2016) ("When an agency claims to discover in a long-extant statute an unheralded power to
regulate 'a significant portion of the American economy,' we typically greet its
announcement with a measure of skepticism."). The final rule is far from an exercise of
newly discovered authority in the Clean Water Act, nor is the scope of "waters of the United
States" unheralded. Rather, the definition of "waters of the United States" is fundamental
to the Clean Water Act, Congress fully intended to establish a comprehensive water quality
protection statute that would affect the American economy by regulation pollution at its
source, Congress clearly delegated the authority to define the term "waters of the United
States" to the expert agencies and is well-aware of the scope of that definition, and this rule
is narrower in scope than the rules the agencies promulgated nearly 50 years ago. In fact,
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the Supreme Court has at least twice concluded that the agencies have the authority to
interpret the scope of "waters of the United States." As the Court explained in Riverside
Bayview, Congress delegated a "breadth of federal regulatory authority" and expected the
agencies to tackle the "inherent difficulties of defining precise bounds to regulable waters."
474 U.S. at 134. In concurring with the Rapanos plurality opinion, the Chief Justice likewise
explained that, given the "broad, somewhat ambiguous, but nonetheless clearly limiting
terms Congress employed in the Clean Water Act, the Corps and the EPA would have
enjoyed plenty of room to operate" if they had addressed the relevant interpretive questions
through rulemaking. 547 U.S. at 758 (Roberts, C.J., concurring). The Chief Justice
emphasized the breadth of the agencies' discretion in defining "waters of the United States"
through rulemaking; indeed, the agencies' interpretations under the Clean Water Act,
Chief Justice Roberts emphasized, are "afforded generous leeway by the courts." Id. at 758
One of the Clean Water Act's principal tools in protecting the integrity of the nation's
waters is section 301(a), which prohibits "the discharge of any pollutant by any person"
without a permit or other authorization under the Act. Other substantive provisions of the
Clean Water Act that use the term "navigable waters" and are designed to meet the
statutory objective include the section 402 permit program, the section 404 dredged and fill
permit program, the section 311 oil spill prevention and response program, the section 303
water quality standards and total maximum daily load programs, and the section 401 state
and tribal water quality certification process. Each of these programs is designed to protect
water quality and, therefore, further the objective of the Clean Water Act. The question of
federal jurisdiction is foundational to most programs administered under the Clean Water
Act. In National Association of Manufacturers, the Supreme Court confirmed the
importance of the specific definitional language of the Act to achieving the objective of the
Act, and in particular the definitional language "waters of the United States." The Court
identified section 301's prohibition on unauthorized discharges as one of the Clean Water
Act's principal tools for achieving the objective and then identified the definition of "waters
of the United States" as key to the scope of the Act: "Congress enacted the Clean Water Act
in 1972 'to restore and maintain the chemical, physical, and biological integrity of the
Nation's waters.' [33 U.S.C.] 1251(a). One of the Act's principal tools in achieving that
objective is [section] 1311(a), which prohibits 'the discharge of any pollutant by any
person,' except in express circumstances.... Because many of the Clean Water Act's
substantive provisions apply to 'navigable waters,' the statutory phrase 'waters of the
United States' circumscribes the geographic scope of the Act in certain respects." 138 S. Ct.
617, 624. In Maui, the Supreme Court again recognized the importance of the specific
definitional language of the Act and of the Act's objective and instructed that "[t]he object
in a given scenario will be to advance, in a manner consistent with the statute's language,
the statutory purposes that Congress sought to achieve." 140 S. Ct. at 1476. The Court, in
recognizing that Congress's purpose to "'restore and maintain the ... integrity of the
Nation's waters'" is "reflected in the language of the Clean Water Act," also found that
"[t]he Act's provisions use specific definitional language to achieve this result," noting that
among that definitional language is the phrase "navigable waters." Id. at 1468-69 (quoting
33 U.S.C. 1251(a)).
The Clean Water Act was not "merely another law 'touching interstate waters,'" but rather
"a 'total restructuring' and 'complete rewriting' of [then] existing water pollution
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legislation." City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981) (citations omitted); EPA v.
California exrel. State Water Resources Control Bd., 426 U.S. 200, 203, 205 n.12 (1976) ("In
1972, prompted by the conclusion of the Senate Committee on Public Works that 'the
Federal water pollution control program ... has been inadequate in every vital aspect,'
Congress enacted the [Clean Water Act], declaring 'the national goal that the discharge of
pollutants into the navigable waters be Eliminated by 1985.'"); Int'lPaper Co. v. Ouellette,
479 U.S. 481, 492-93 (1987) ("Congress intended the 1972 Act amendments to 'establish an
all-encompassing program of water pollution regulation.' ... The Act applies to all point
sources and virtually all bodies of water, and it sets forth the procedures for obtaining a
permit in great detail."). Thus, Congress was, as the Supreme Court has frequently
recognized, fully cognizant that the Clean Water Act's "all-encompassing program of water
pollution regulation" would affect the American economy. Indeed, when President Nixon
vetoed the 1972 Clean Water Act, he cited its estimated cost: "I am compelled to withhold
my approval from S. 2770, the Federal Water Pollution Control Act Amendments of 1972--
a bill whose laudable intent is outweighed by its unconscionable $24 billion price tag." A
Legislative History of The Clean Water Act, 93rd Cong., 1st Sess. at p.137 (Comm. Print
1973). Congress overrode President Nixon's veto.
Congress established a broad definition of a term foundational to advancing the Act's clear
objective which requires additional interpretation to implement ef-that term by the expert
agencies charged with administering the statute. The breadth of the definition of "navigable
waters" reflects a deliberate choice by Congress to both enact a statute with a broad scope
of waters protected by federal law and to delegate the authority to interpret the specialized
term and its definition to the expert agencies. The relevant House bill would have defined
"navigable waters" as the "navigable waters of the United States, including the territorial
seas." H.R. Rep. No. 911, 92d Cong., 2d Sess. 356 (1972) (emphasis omitted). But the House
was concerned that the definition might be given an unduly narrow interpretation. The
House Report observed: "One term that the Committee was reluctant to define was the
term 'navigable waters.' The reluctance was based on the fear that any interpretation
would be read narrowly. However, this is not the Committee's intent. The Committee fully
intends that the term 'navigable waters' be given the broadest possible constitutional
interpretation unencumbered by agency determinations which have been made or may be
made for administrative purposes." H.R. Rep. No. 92-911, at 131 (1972). The Senate Report
also expressed disapproval of the narrow construction by the Corps of the scope of waters
protected under prior water protection statutes, stating "[tjhrough a narrow interpretation
of the definition of interstate waters the implementation [of the] 1965 Act was severely
limited. Water moves in hydrologic cycles and it is essential that discharge of pollutants be
controlled at the source." S. Rep. No. 92-414, at 77 (1971). Thus, in conference the word
"navigable" was deleted from that definition, and the conference report again urged that
the term "be given the broadest possible constitutional interpretation unencumbered by
agency determinations which have been made or may be made for administrative
purposes." S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972). Congress thus intended
the agencies to which it granted authority to implement the Clean Water Act to interpret
the scope of the definition of "navigable waters" consistent with Congress's intent and
objective in enacting the Act.
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Congress is also well-aware of the scope of the agencies' definition. In 1975, the Corps
promulgated interim final regulations providing for a phased-in expansion of its section 404
jurisdiction. 40 FR 31320 (July 25,1975); see 33 CFR 209.120(d)(2), (e)(2) (1976). In this
phased approach, all of the waters in the final regulation were "waters of the United
States," but the Corps would begin regulating activities within each type of "water of the
United States" in phases: Phase I, which was effective immediately, covered "coastal waters
and coastal wetlands contiguous or adjacent thereto or into inland navigable waters of the
United States [a term for waters protected under the Rivers and Harbors Act] and
freshwater wetlands contiguous or adjacent thereto"; Phase II, effective after July 1,1976,
covered "primary tributaries, freshwater wetlands contiguous or adjacent to primary
tributaries, and lakes"; and Phase III, effective after July 1,1977, covered "discharges ...
into any navigable water" including intrastate lakes and rivers and their adjacent wetlands.
40 FR 31320, 31324, 31326 (July 25,1975). The Corps defined "adjacent" to mean
"bordering, contiguous, or neighboring," and specified that "[wjetlands separated from
other waters of the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like are 'adjacent wetlands.'" 42 FR 37122, 37144 (July 19,1977). The
regulations also defined "wetlands" to mean "those areas that are inundated or saturated
by surface or ground water at a frequency and duration sufficient to support, and that
under normal circumstances do support, a prevalence of vegetation typically adapted for
life in saturated soil conditions." Id. Leading up to the 1977 Amendments, Congress
considered proposals to limit the geographic reach of section 404. "In both Chambers,
debate on the proposals to narrow the definition of navigable waters centered largely on the
issue of wetlands preservation." SWANCC, 531 U.S. at 170. A version of that legislation,
passed by the House, would have redefined "navigable waters" for purposes of section 404
to mean a limited set of traditional navigable waters and their adjacent wetlands. H.R.
3199, 95th Cong, section 16 (1977). But many legislators objected to the proposed changes.
Congress instead modified the Clean Water Act in other ways to respond to concerns about
the scope of federal authorities. Congress exempted certain agricultural and silvicultural
activities from the section 404 permitting program. See 1977 Act section 67(b), 91 Stat. 1600
(33 U.S.C. 1344(f)(1)(A)). In addition, Congress authorized the Corps to issue general
permits to streamline the permitting process. Id. (33 U.S.C. 1344(e)(1)). And importantly for
understanding the scope of "waters of the United States," Congress modified section 404 in
a way that incorporated into the statutory text an explicit endorsement of the Corps'
regulation defining "waters of the United States," including its inclusion of adjacent
wetlands. Specifically, the 1977 Act section 67(b), 91 Stat. 1601, establishing section 404(g),
allowed states and tribes to assume responsibility for the issuance of section 404 permits. As
Congress explained in the legislative history, under section 404(g) states could administer a
permitting program for the discharge of dredged or fill material into "phase II and III
waters" following EPA approval, but the Corps would retain jurisdiction over "those
waters defined as the phase I waters in the Corps ... 1975 regulations, with the exception of
waters considered navigable solely because of historical use." 123 Cong. Rec. 38,969 (Dec.
15,1977); H.R. Rep. No. 95-830, at 101 (1977) reprinted in 3 Legis. History 1977, at 185,
285.
The text of the agencies' longstanding regulations, in effect at the time of the 1977
amendments, are far broader than this rule. A key change is the deletion of the provision in
the 1986 regulations that defines "waters of the United States" as all paragraph (a)(3)
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"other waters" such as intrastate lakes, rivers, streams (including intermittent streams),
mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or
natural ponds, the use, degradation or destruction of which could affect interstate or
foreign commerce including any such waters: which are or could be used by interstate or
foreign travelers for recreational or other purposes; from which fish or shellfish are or
could be taken and sold in interstate or foreign commerce; or which are used or could be
used for industrial purposes by industries in interstate commerce. Under this rule, a broad
interstate commerce connection is not sufficient to meet the definition of "waters of the
United States." Instead, waters must meet either the relatively permanent standard or the
significant nexus standard. Further, waters in a watershed in which there is no connection
to a traditional navigable water, the territorial seas, or an interstate water, would not be
"waters of the United States." In addition, this rule would explicitly exclude some features
and waters over which the agencies have not generally asserted jurisdiction, but which are
not excluded in the text of the 1986 regulations, and in so doing eliminates the authority of
the agencies to determine in case-specific circumstances that some such waters are
jurisdictional "waters of the United States." This rule also provides new limitations on the
scope of jurisdictional tributaries and most adjacent wetlands by establishing a requirement
that they meet either the relatively permanent standard or the significant nexus standard.
Together, these changes serve to narrow the scope of this rule in comparison to the text of
the regulation in effect. Furthermore, the economic analysis for this rule concludes that the
final rule will generate de minimis costs and benefits as compared to the pre-2015
regulatory regime that the agencies are currently implementing. See also Final Rule
Preamble Section V.A.
Additionally, the agencies disagree that that they have misinterpreted the opinions in
Callaway and Holland. Regardless of the length of its decision, the district court in Callaway
was clear in expressing its finding that Congress intended to assert jurisdiction under the
Clean Water Act "to the maximum extent permissible under the Commerce Clause" and
that the term "'navigable waters' ... is not limited to the traditional tests of navigability."
392 F. Supp. at 686. The court in Holland likewise found that "Congress had the power to
go beyond the 'navigability' limitation in its control over water pollution and that it
intended to do so in the [Clean Water Act]." 373 F. Supp at 673. Moreover, the agencies do
not rely on these decisions to support a decision not to return to the 1970s regulations
defining "waters of the United States." Rather, the agencies discuss these cases in the
preamble to both the proposed and final rule simply in summarizing the history
surrounding the agencies' interpretation of the statutory term "waters of the United
States."
2.7 Constitutional Arguments
2.7.1 Giving sufficient effect to the term "navigable"
Multiple commenters stated that the Supreme Court has found that the Clean Water Act's use of the term
"navigable" indicates that Congress intended to exercise its traditional Commerce Clause power over
navigable waters in promulgating the Act and that as such, the term "navigable" must be given some
effect. Many of these commenters asserted that this term is intended to act as a limit on federal
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jurisdiction and expressed concern that the proposed rule reads the term "navigable" out of the statute,
including by extending jurisdiction to waters that are not navigable-in-fact, and that the rule thus exceeds
Congress's traditional commerce authority over navigation. One commenter argued that it is only by
giving full effect to the term "navigable" that the agencies can stay within the limits on federal authority
that flow from the Commerce Clause and respect Congress's choice to preserve and protect states'
traditional and primary authority over land and water resources.
Several commenters asserted specifically that the proposed rule's significant nexus standard reads
"navigable" out of the Act. One of these commenters criticized the standard because it does not consider
"navigability" as a factor in determining jurisdiction and argued that the assertion of jurisdiction over
nonnavigable features exceeds the agencies' statutory authority. A different commenter asserted generally
that the proposed rule's "similarly situated" provision is so ambiguous that it risks reading "navigable"
out of the Act.
Agencies' Response: The agencies disagree that the rule reads "navigable" out of the statute
or exceeds Congress's authority under the Commerce Clause. See Final Rule Preamble
Section IV.A.3. The agencies also disagree that Congress's traditional authority over
navigation is limited to waters that are navigable-in-fact and disagree that the Clean Water
Act is limited to waters that are navigable-in-fact. The Supreme Court has long held that
authority over traditional navigable waters is not limited to either protection of navigation
or authority over only the traditional navigable water. Rather, "the authority of the United
States is the regulation of commerce on its waters ... [f]lood protection, watershed
development, [and] recovery of the cost of improvements through utilization of power are
likewise parts of commerce control." United States v. Appalachian Electric Power Co., 311
U.S. 377, 426 (1940); see also Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508,
525-526 (1941) ("[J]ust as control over the non-navigable parts of a river may be essential
or desirable in the interests of the navigable portions, so may the key to flood control on a
navigable stream be found in whole or in part in flood control on its tributaries.... [T]he
exercise of the granted power of Congress to regulate interstate commerce may be aided by
appropriate and needful control of activities and agencies which, though intrastate, affect
that commerce."). The significant nexus standard included in this rule ensures that the
definition of "waters of the United States" remains within the bounds of the Clean Water
Act and addresses the concerns raised by the Court in SWANCC while also fulfilling the
directive of Congress enacting the Clean Water Act. See Final Rule Preamble Sections
IV.A.5 and IV.A.3. In addition, the agencies disagree that the "similarly situated" provision
is ambiguous and disagree that the language risks reading "navigable" out of the Act
because the limitations in the definition ensure that the agencies will not assert jurisdiction
where the effect on traditional navigable waters, the territorial seas, and interstate waters—
i.e., the paragraph (a)(1) waters—is not significant. See Final Rule Preamble Sections
IV.A.2 and IV.A.3 for further discussion of the rule's consistency with the Clean Water Act
and the Constitution.
2.7.2 Commerce Clause
Numerous commenters asserted that Congress, in enacting the Clean Water Act, intended to rely solely on
authority rooted in "its traditional jurisdiction over waters that were or had been navigable in fact or
which could reasonably be so made," citing SWANCC, 531 U.S. at 172, with a few commenters referring
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to this as Congress's authority to regulate the "channels of interstate commerce." Several of these
commenters, again citing SWANCC, argued that Congress's decision to exercise its traditional commerce
power over navigation demonstrates that it did not intend to exert federal jurisdiction to the maximum
extent possible under the Commerce Clause.
In contrast, other commenters suggested that Congress did intend to exert Clean Water Act jurisdiction to
the fullest extent possible under the Commerce Clause, citing cases such as NRDC v. Callaway, 392 F.
Supp. 685, 686 (D.D.C. 1975) ("Congress, by defining the term 'navigable waters' ... to mean 'the
waters of the United States, including the territorial seas,' asserted federal jurisdiction over the nation's
waters to the maximum extent permissible under the Commerce Clause of the Constitution."). One of
these commenters asserted that Congress sought to regulate to the full extent of its Commerce Clause
authority in order to achieve the Act's "broad and ambitious" goals. Another commenter stated that in
enacting the Clean Water Act, "Congress intended to repudiate the traditional navigability tests and
limitations on federal authority, and to instead utilize the full authority of the federal government to
regulate water pollution in 'virtually all surface water in the country' under its Commerce Clause
authority" and that Congress's Commerce Clause authority is not limited to traditional navigable waters
or traditional tests of navigability, citing Int 'I Paper Co. v. Ouellette, 479 U.S. at 489; Env 't Prot. Agency
v. California ex rel. State Water Res. Control Bd, 426 U.S. 200, 206-08 & n. 16 (1976); and New York v.
United States, 505 U.S. 144, 167 (1992).
One commenter emphasized that in finding that Congress relied only on its power to regulate the channels
of interstate commerce in promulgating the Act, the Supreme Court in SWANCC rejected the argument
that the agencies may assert jurisdiction over a feature based on whether it has a substantial effect on
interstate commerce. Other commenters, however, argued that the agencies have authority to assert Clean
Water Act jurisdiction based on whether a water has substantial effects on interstate commerce. One of
these commenters suggested that the proposed rule is unlawful because it does not require the agencies to
assess whether a feature has substantial effects on interstate commerce in determining jurisdiction, citing
Nat'l Fed'n oflndep. Bus. v. Sebelius, 567 U.S. 519, 551 (2012) and United States v. Wilson, 133 F.3d
251 (4th Cir. 1997).
Another commenter, citing the Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1, 22 (2005),
asserted that Congress has authority to regulate individual activities when it has a "rational basis" to
conclude that the "activities, taken in the aggregate, substantially affect interstate commerce" and that
"[t]his type of analysis is particularly relevant when considering a 'comprehensive regulatory regime'"
like the Clean Water Act. This commenter added that "[e]ven before" Congress enacted the Clean Water
Act, the Supreme Court in Oklahoma ex rel. Phillips v. Guy F. Atkinson, 313 U.S. 508, 523, 525 (1941),
found that Congress could exercise control over "the non-navigable stretches of a river in order to
preserve or promote commerce on the navigable portions," even if a project would have only "an
incidental effect in protecting or improving the navigability" of such waters; the commenter suggested
that in reaching this decision, "the Court recognized federal power over non-navigable tributaries for
purposes other than directly regulating navigation."
Some commenters asserted generally that the proposed rule exceeds Congress's authority under the
Commerce Clause.
Agencies' Response: The agencies are mindful of the Supreme Court's decision in SWANCC
regarding the specific Commerce Clause authority Congress was exercising in enacting the
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Clean Water Act—"its traditional jurisdiction over waters that were or had been navigable
in fact or which could reasonably be so made." 531 U.S. at 172. The decision in SWANCC in
2001 was issued by the Supreme Court after the decisions cited by commenters. The
agencies disagree with commenters asserting that the rule exceeds Congress's authority
under the Commerce Clause or is inconsistent with SWANCC. By placing traditional
navigable waters, the territorial seas, and interstate waters at the center of the agencies'
jurisdiction and covering additional waters only where those waters significantly affect
(a)(1) waters, this rule reflects the Court's guidance in SWANCC. As set forth in this rule,
the relatively permanent standard and the significant nexus standard allow the agencies to
fulfill the statute's and Congress's clearly stated objective, while being carefully crafted to
fall well within the authority granted to the agencies by Congress and to Congress by the
Constitution. Moreover, the SWANCC Court noted that the statement in the Conference
Report for the Clean Water Act that the conferees "intend that the term 'navigable waters'
be given the broadest possible constitutional interpretation," S. Conf. Rep. No. 92-1236, at
144 (1972), signifies Congress's intent with respect to its exertion of its commerce power
over navigation. Thus, while the agencies must be mindful that Congress was utilizing an
aspect of its commerce power, they must be similarly mindful that Congress intended to
fully exercise that authority in order to comprehensively address water pollution. The
agencies have concluded that the legislative history concerning the intent of Congress
regarding the scope of the Clean Water Act's protections under its power over navigation
confirms the appropriateness of the agencies' construction of the Clean Water Act in this
rule. See Final Rule Preamble Sections IV.A.3 and IV.A.5.
2.7.3 Due Process Clause
Multiple commenters expressed concern that the proposed rule violates the Due Process Clause of the
U.S. Constitution because it is impermissibly vague and thus does not provide the requisite fair notice of
what conduct is lawful. Some commenters referenced this concept as the "void for vagueness" doctrine.
Relying on the Supreme Court's opinion in Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018), numerous
commenters stated that the doctrine is intended to guarantee that ordinary people have "fair notice" of the
conduct a statute requires, in addition to protecting against "arbitrary or discriminatory law enforcement
by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries,
and judges." Another commenter quoted Justice Gorsuch's concurrence in Sessions v. Dimaya providing
that "vague laws . . . can invite the exercise of arbitrary power ... by leaving the people in the dark about
what the law demands and allowing prosecutors and courts to make it up," 138 S. Ct. at 1223-24.
A different commenter described the doctrine as requiring that "a law carrying criminal sanctions must be
readily understandable by the average person without legal advice," adding that "[a] statute that is unduly
vague and so indefinite that the average person can only guess as its meaning undermines the
constitutional right to due process." This commenter argued that under the proposed rule, "parties would
be unable to reliably discern the scope of federal jurisdiction," asserting that "no common person," for
example, would expect "remote and ordinarily dry features" to constitute "waters of the United States"
and that the proposed rule thus fails to provide fair notice.
Additionally, a number of commenters expressed concern that the proposed rule's significant nexus
standard does not provide sufficient clarity as to which waters may be jurisdictional, including because it
does not provide "objective criteria to evaluate agency assertions of federal jurisdiction," and that the
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proposed rule thus fails to provide the requisite fair notice to private property owners and is
unconstitutionally vague. In particular, some commenters suggested that the proposed rule's aggregation
of "similarly situated waters in the region" raises due process concerns. Several of these commenters
asserted that a significant nexus determination that relies on aggregation is, in essence, a finding that all
the waters that were aggregated in that region possess a significant nexus, and argued that this outcome is
unfair to landowners in that region because it means that the jurisdictional status of waters on their
property would be determined without their knowledge or participation. One of these commenters further
asserted that a landowner in that scenario may have no recourse to challenge the agencies' finding
because it is unclear whether an approved jurisdictional determination can be appealed as to waters not
specifically covered by the determination (i.e.. those "similarly situated waters in the region" that were
aggregated for purposes of the significant nexus determination but were not the subject of the approved
jurisdictional determination).
Another commenter stated that the agencies should provide landowners "in the region" with "due process
notice" where an entire class of wetlands or waters are deemed jurisdictional. A different commenter
suggested that the proposed rule raises "void for vagueness" concerns because the significant nexus
standard does not appear in the text of the Clean Water Act.
One commenter referenced a case involving application of Justice Kennedy's significant nexus test,
United States v. Bailey, 516 F. Supp. 2d 998, 1009 (D. Minn. 2007), in arguing that the proposed rule's
significant nexus standard fails to provide fair notice. The commenter stated that in that case, the court
found that neither the defendant property owner or the state environmental agency had sufficient expertise
to determine whether the defendant's property contained jurisdictional wetlands. The commenter then
asserted that "[w]here a court rules as a matter of law that, not only is a defendant incapable of knowing
whether or not the law applies, but that state environmental agencies are incapable of knowing either, then
the law cannot provide fair notice." The commenter concluded that the agencies should withdraw the
proposed rule given these due process concerns.
Several commenters suggested that the lack of clarity around which features would be jurisdictional under
the proposed rule is particularly problematic given the potential imposition of civil and criminal penalties
for noncompliance under the Clean Water Act, which commenters emphasized is a strict liability statute.
Commenters further asserted that the lack of certainty or predictability around implementation of the
proposed rule, especially the rule's significant nexus standard, could lead to arbitrary enforcement.
Agencies' Response: The agencies disagree with commenters stating that the rule violates
the Due Process Clause of the U.S. Constitution because it is impermissibly vague and thus
does not provide the requisite fair notice of what conduct is lawful. The rule comports with
the Due Process Clause. By identifying categories of waters that are jurisdictional and
waters that are excluded, and by providing clear guidelines for identifying waters that may
be jurisdictional under the relatively permanent standard or the significant nexus standard,
the rule provides fair notice to regulated parties and appropriate parameters for
enforcement. Moreover, parties have ample opportunity to request an approved
jurisdictional determination from the Corps and seek judicial review of such determination.
The agencies also disagree with a commenter stating that the proposed rule raises "void for
vagueness" concerns, arguing that the significant nexus standard does not appear in the text
of the Clean Water Act. See Final Rule Preamble Section IV.A. for discussion of the rule's
consistency with the text and structure of the Act.
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The agencies disagree with commenters stating that the rule's significant nexus standard
does not provide sufficient clarity as to which waters may be jurisdictional, including
because it does not provide "objective criteria to evaluate agency assertions of federal
jurisdiction," and that the proposed rule thus fails to provide the requisite fair notice to
private property owners and is unconstitutionally vague. The rule in fact adds clarity to the
1986 regulations and to the significant nexus standard. See Final Rule Preamble Section
IV.C.9. While the presence of a "water of the United States" may contain an element of
discretion, that discretion is bounded by the definitions and factors set forth in the rule. See
Grayned v. City of Rockford, 408 U.S. 104,114 (1972) ("As always, enforcement requires the
exercise of some degree of police judgment, but, as confined, that degree of judgment here is
permissible."). The rule allows regulators sufficient flexibility to address different
circumstances that may be present in different parts of the country, while providing at least
the "minimal guidelines" necessary to comport with due process. United States Telecom
Ass'n v. FCC, 825 F.3d 674, 737 (D.C. Cir. 2016) (citation omitted) ("a regulation is not
impermissibly vague because it is 'marked by flexibility and reasonable breadth, rather
than meticulous specificity'").
The agencies disagree with commenters stating that the rule's aggregation of "similarly
situated waters in the region" raises due process concerns based on arguments that the
jurisdictional status of waters on other landowners property would be determined without
their knowledge or participation. Corps approved jurisdictional determinations (AJDs) are
provided in response to a specific request and are only for aquatic resources within a
specific geographic area associated with that request. Completing an AJD that requires an
assessment under the significant nexus standard may require gathering information on
aquatic resources within a geographic area (e.g., the catchment) that is beyond the scope of
the specific geographic area associated with the AJD. While this may occur, the conclusions
reached on the jurisdictional status of aquatic resources is limited to only those within the
geographic area defined by the requestor and associated with the AJD and does not include
the similarly situated waters in the catchment area that lies outside the geographic area
associated with the AJD. Landowners of aquatic resources that were related to, but not
included as part of an AJD (e.g., aquatic resources determined to be similarly situated
waters in the geographic area beyond that specific to an AJD) are always free to request an
AJD to obtain a definitive determination of the jurisdictional status of those same aquatic
resources.
The agencies disagree with commenters that a lack of certainty or predictability around
implementation of the proposed rule, especially the rule's significant nexus standard, could
lead to arbitrary enforcement. An enactment does not violate the Due Process Clause
merely because it allows regulators some discretion to enforce the law. "[SJtatutes are not
automatically invalidated as vague simply because difficulty is found in determining
whether certain marginal offenses fall within their language." United States v. Nat'l Dairy
Prods. Corp., 372 U.S. 29, 32 (1963). The rule is neither too vague for ordinary people to
understand, nor so standardless that it fails to provide adequate guidelines for agency
discretion. 0, 553 U.S. 285, 304 (2008). The rule provides notice of what waters are subject
to the CWA's prohibition on discharges of pollutants: all paragraph (a)(1) waters and their
adjacent wetlands; all paragraph (a)(2) waters; and waters that fall within paragraphs
(a)(3), (a)(4), and (a)(5) that meet the relatively permanent standard or the significant nexus
standard. The rule further clarifies permissible and impermissible conduct by identifying
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waters that are categorically excluded from the definition of "waters of the United States."
The rule clarifies these categories by defining relevant terms, including "wetland," and
"adjacent." And, although the rule requires a case-specific assessments under the relatively
permanent standard or the significant nexus standard analysis for certain categories of
waters, it provides a clear definition about what qualifies as a significant nexus. The rule
thus provides fair notice to the ordinary person of where the Clean Water Act's restrictions
on discharges of pollutants apply and clear standards for agency personnel and courts to
apply in determining whether violations of the prohibition have occurred. That is what the
Due Process Clause requires. Moreover, a person who is uncertain about the jurisdictional
status of an aquatic feature may seek a formal determination from the Corps, which is
subject to judicial review.
2.7.4 Fifth Amendment
Numerous commenters expressed concern that the proposed rule would result in regulatory takings in
violation of the Fifth Amendment of the U.S. Constitution or otherwise fail to respect private property
rights. Several commenters stated that the agencies' revised definition of "waters of the United States"
must stay within the bounds of the Clean Water Act, relevant legal precedent, and the U.S. Constitution in
order to respect private property rights. Some commenters asserted specifically that the inclusion of
ephemeral and intermittent streams in the revised definition would violate private property rights.
Relatedly, some commenters cited language in Justice Kennedy's concurring opinion in Hawkes
suggesting that Clean Water Act jurisdiction "continues to raise troubling questions regarding the
Government's power to cast doubt on the full use and enjoyment of private property throughout the
Nation," U.S. Army Corps ofEng'rs v. Hawkes, 578 U.S. 590, 603 (2016). One commenter cautioned that
"the regulation of private property should be undertaken with a light hand," and a few others asserted that
the Clean Water Act does not grant jurisdiction over private property.
Agencies' Response: The agencies agree that the revised definition of "waters of the United
States" must stay within the bounds of the Clean Water Act, relevant legal precedent, and
the U.S. Constitution and have concluded that the final rule does. See Final Rule Preamble
Sections IV.A.2 and IV.A.3 for further discussion of the rule's consistency with the Clean
Water Act and the Constitution. The final rule does not constitute a taking of private
property in violation of the Fifth Amendment. Under the Clean Water Act, any person
discharging a pollutant from a point source into navigable waters must obtain authorization
under the Act. The rule clarifies which navigable waters trigger a permit requirement and
that does not constitute a taking. See, e.g., United States v. Riverside Bayview Homes, 474
U.S. 121,127 (1985) ("A requirement that a person obtain a permit before engaging in a
certain use of his or her property does not itself 'take' the property in any sense: after all,
the very existence of a permit system implies that permission may be granted, leaving the
landowner free to use the property as desired. Moreover, even if the permit is denied, there
may be other viable uses available to the owner. Only when a permit is denied and the effect
of the denial is to prevent 'economically viable' use of the land in question can it be said
that a taking has occurred.").
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2.7.5 Constitutional avoidance
Multiple commenters asserted that the proposed rule would impermissibly expand federal jurisdiction
over states' land and water resources, contrary to the policy expressed in Clean Water Act section 101(b)
and contrary to the Supreme Court's holding in SWANCC, 531 U.S. at 172-74, that the Act must be read
to avoid federalism and constitutional questions. Commenters argued, citing SWANCC, that the Clean
Water Act contains no clear statement indicating that Congress intended to authorize the agencies to
intrude upon traditional state authority over regulation of land and water resources.
Agencies' Response: The agencies disagree that the rule is contrary to the policy expressed
in Clean Water Act Section 101(b) or contrary to the holding in SWANCC. See section
IV.A.3.b of the final rule preamble further discussion of the agencies' balancing of federal
and state roles under the Clean Water Act. By placing traditional navigable waters, the
territorial seas, and interstate waters at the center of the agencies' jurisdiction and covering
additional waters only where those waters significantly affect (a)(1) waters, this rule reflects
the Court's guidance in SWANCC. See Final Rule Preamble Section IV.A.3.
2.7.6 Miscellaneous
One commenter argued that waters located within the borders of a state cannot be regulated as "waters of
the United States" and stated that, at most, navigable "rivers" that are "commonly recognized as use for
commercial transportation" may fall within the jurisdiction of the Department of Transportation. This
commenter further suggested that broad federal jurisdiction under the Clean Water Act would constitute
an infringement on state sovereignty and individual property rights.
Agencies' Response: The agencies disagree that waters located within the borders of a state
cannot be "waters of the United States." No decision of the Supreme Court has ever held
that Congress's Commerce Clause power is so limited or that Congress intended to so limit
the Clean Water Act. The agencies disagree that the Clean Water Act or the rule constitute
an infringement on state sovereignty or individual property rights. See also the agencies'
response to comments in Sections 2.2, 2.74, and 2.8.3.
2.8 Other Statutory Arguments
2.8.1 Section 101(g)
The agencies received several comments regarding the relationship between the proposed rule and Clean
Water Act section 101(g), which provides that "[i]t is the policy of Congress that the authority of each
state to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise
impaired by this Act" and that "[i]t is the further policy of Congress that nothing in this Act shall be
construed to supersede or abrogate rights to quantities of water which have been established by any
State." 33 U.S.C. 1251(g).
A state commenter requested that that final rule expressly recognize the language in Clean Water Act
section 101(g) regarding the primary authority of states over water management, asserting that the scope
of federal jurisdiction is "subordinate to the authority of states to allocate water resources" pursuant to
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section 101(g). The commenter stated that the Supreme Court has recognized these limits on the
jurisdictional reach of the Act, citing PUD No. 1 of Jefferson Cty. v. Wash. Dept. of Ecology, 511 U.S.
700, 720-21 (1994), adding that these "clear and recognizable limits" on Clean Water Act jurisdiction
"should be recognized in the rule."
Another state commenter asserted that the proposed rule's inclusion of ephemeral waters, intermittent
waters, and "other waters" as potentially jurisdictional "attempts to erode [the state's] primary authority
over low flow, remote, headwater stream channels and isolated ponds and wetlands by expanding the
concept of national significance" and suggested that this may be in tension with section 101(g).
Agencies' Response: The agencies disagree with commenters who stated that the rule is
inconsistent with Clean Water Act section 101(g) because it would interfere with states'
rights over waters or would impinge upon allocation and movement of state waters. Section
101(g) of the Clean Water Act provides that " [i]t is the policy of Congress that the authority
of each State to allocate quantities of its water within its jurisdiction shall not be
superseded, abrogated or otherwise impaired by [the Clean Water Act and] that nothing in
[the Clean Water Act] shall be construed to supersede or abrogate rights to quantities of
water which have been established by any State." Similarly, section 510(2) provides that
nothing in the Act shall "be construed as impairing or in any manner affecting any right or
jurisdiction of the States with respect to the waters ... of such States." The final rule is
entirely consistent with these policies. The rule does not impact or diminish state authorities
to allocate water rights or to manage their water resources. Nor does the rule alter the
Clean Water Act's underlying regulatory process. Having been enacted with the objective
of restoring and maintaining the chemical, physical, and biological integrity of our nation's
waters, the CWA serves to protect water quality. While Section 101(a) of the Act, which this
rule implements, states an overall objective that precedes the policy set in Section 101(g),
neither the Clean Water Act nor the rule impair the authorities of states to allocate
quantities of water. Instead, the Clean Water Act and the rule serve to enhance the quality
of the water that the states allocate.
Even if the rule were to have an incidental effect on water quantity or allocation, the rule
would still be consistent with section 101(g) of the CWA. In PUD No. 1 of Jefferson County
v. Washington Dept. of Ecology, 511 U.S. 700, 720,114 S. Ct. 1900,1913,128 L.Ed.2d 716,
733 (1994), the United States Supreme Court held, "Sections 101(g) and 510(2) [of the
CWA] preserve the authority of each State to allocate water quantity as between users; they
do not limit the scope of water pollution controls that may be imposed on users who have
obtained, pursuant to state law, a water allocation." First, the Court stated: "The Federal
Water Pollution Control Act, commonly known as the Clean Water Act, 86 Stat. 816, as
amended, 33 U.S.C. § 1251 et seq., is a comprehensive water quality statute designed to
'restore and maintain the chemical, physical, and biological integrity of the Nation's
waters.' § 1251(a). The Act also seeks to attain 'water quality which provides for the
protection and propagation of fish, shellfish, and wildlife.' § 1251(a)(2). To achieve these
ambitious goals, the Clean Water Act establishes distinct roles for the Federal and State
Governments. Under the Act, the Administrator of the Environmental Protection Agency
(EPA) is required, among other things, to establish and enforce technology-based
limitations on individual discharges into the country's navigable waters from point sources.
See §§ 1311,1314. Section 303 of the Act also requires each State, subject to federal
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approval, to institute comprehensive water quality standards establishing water quality
goals for all intrastate waters. §§ 1311(b) (1)(C), 1313. These state water quality standards
provide 'a supplementary basis ... so that numerous point sources, despite individual
compliance with effluent limitations, may be further regulated to prevent water quality
from falling below acceptable levels.' EPA v. California ex rel. State Water Resources Control
Bd., 426 U.S. 200, 205, n. 12, 48 L. Ed. 2d 578, 96 S. Ct. 2022 (1976)." 511 U.S. at 704.
Petitioners in the case argued that the Clean Water Act is only concerned with water
"quality," and does not allow the regulation of water "quantity." The Court held: "This is
an artificial distinction. In many cases, water quantity is closely related to water quality; a
sufficient lowering of the water quantity in a body of water could destroy all of its
designated uses, be it for drinking water, recreation, navigation or, as here, as a fishery. In
any event, there is recognition in the Clean Water Act itself that reduced stream flow, i.e.,
diminishment of water quantity, can constitute water pollution. First, the Act's definition of
pollution as 'the man-made or man induced alteration of the chemical, physical, biological,
and radiological integrity of water' encompasses the effects of reduced water quantity. 33
U.S.C. § 1362(19). This broad conception of pollution—one which expressly evinces
Congress's concern with the physical and biological integrity of water—refutes petitioners'
assertion that the Act draws a sharp distinction between the regulation of water 'quantity'
and water 'quality.' Moreover, § 304 of the Act expressly recognizes that water 'pollution'
may result from 'changes in the movement, flow, or circulation of any navigable waters ...,
including changes caused by the construction of dams.' 33 U.S.C. § 1314(f)." 511 U.S. at
719-20.
Petitioners also argued that sections 101(g) and 510(2) exclude the regulation of water
quantity from the coverage of the Act. In contrast, the Supreme Court held: "we read these
provisions more narrowly than petitioners. Sections 101(g) and 510(2) preserve the
authority of each State to allocate water quantity as between users; they do not limit the
scope of water pollution controls that may be imposed on users who have obtained,
pursuant to state law, a water allocation. In California v. FERC, 495 U.S. 490, 498,109 L.
Ed. 2d 474,110 S. Ct. 2024 (1990), construing an analogous provision of the Federal Power
Act, we explained that "minimum stream flow requirements neither reflect nor establish
'proprietary rights'" to water. Cf. First Iowa Hydro-Electric Cooperative v. FPC, 328 U.S.
152,176, 90 L. Ed. 1143, 66 S. Ct. 906, and n. 20 (1946). Moreover, the certification itself
does not purport to determine petitioners' proprietary right to the water of the Dosewallips.
In fact, the certification expressly states that a "State Water Right Permit (Chapters
90.03.250 RCW and 508-12 WAC) must be obtained prior to commencing construction of
the project." App. to Pet. for Cert. 83a. The certification merely determines the nature of
the use to which that proprietary right may be put under the Clean Water Act, if and when
it is obtained from the State. Our view is reinforced by the legislative history of the 1977
amendment to the Clean Water Act adding § 101(g). See 3 Legislative History of the Clean
Water Act of 1977 (Committee Print compiled for the Committee on Environment and
Public Works by the Library of Congress), Ser. No. 95-14, p. 532 (1978) ('The requirements
[of the Act] may incidentally affect individual water rights.... It is not the purpose of this
amendment to prohibit those incidental effects. It is the purpose of this amendment to
insure that State allocation systems are not subverted, and that effects on individual rights,
if any, are prompted by legitimate and necessary water quality considerations')." 511 U.S.
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at 720-21. The rule is consistent with the Supreme Court's reading of these provisions and
the objective of the Act.
2.8.2 Legislative History
One commenter asserted broadly that the agencies cannot rely on the Clean Water Act's legislative
history to support the proposed rule. In criticizing the agencies' discussion in the preamble to the
proposed rule of a 1977 legislative proposal that would have limited the waters subject to the Corps'
permitting authority under section 404 to only navigable-in-fact waters and their adjacent wetlands, the
commenter quoted language in SWANCC providing that "failed legislative proposals are a particularly
dangerous ground on which to rest an interpretation of a prior statute," as "[a] bill can be proposed for any
number of reasons, and it can be rejected for just as many others," 531 U.S. at 170. The commenter added
that the agencies have failed to explain "how the failure to pass a 1977 bill amounts to Congressional
acquiescence to a radically expanded view of 'waters of the United States' that first appeared in 2006 and
was adopted by the Agencies in 2015."
The same commenter also criticized the agencies' discussion of a 1972 Conference Report and asserted
that "[although the meaning of 'navigable' may be ambiguous, its presence in the statute is not—unlike
the 'tributaries thereof language relied upon so heavily by the Agencies." The commenter further argued
that Congress's removal of a reference to tributaries in prior versions of the Act "only affirms that it
intended a much narrower definition than the Agencies have historically used or that the Proposed Rule
uses."
In contrast, a different commenter supported the view that legislative history demonstrates that Congress
intended to exert broad, comprehensive jurisdiction under the Clean Water Act. This commenter
emphasized that Congress chose to define "navigable waters" as "the waters of the United States" rather
than "the navigable waters of the United States." The commenter added that "[f|or decades, the [Clean
Water Act] was understood to protect the vast majority of the nation's surface waters consistent with
Congress's intent."
Agencies' Response: The agencies disagree with commenters who suggested that the scope
of jurisdiction provided under the rule is inconsistent with the legislative history of the Act.
As noted in the preamble to the final rule, the "major purpose" of the Clean Water Act was
"to establish a comprehensive long-range policy for the elimination of water pollution." S.
Rep. No. 92-414, at 95 (1971), 2 Legislative History of the Water Pollution Control Act
Amendments of 1972 (Committee Print compiled for the Senate Committee on Public
Works by the Library of Congress), Ser. No. 93-1, p. 1511 (1971) (emphasis added). "No
Congressman's remarks on the legislation were complete without reference to [its]
'comprehensive' nature." City of Milwaukee, 451 U.S. at 318. In passing the 1972 Act,
Congress "intended to repudiate limits that had been placed on federal regulation by earlier
water pollution control statutes and to exercise its powers under the Commerce Clause to
regulate at least some waters that would not be deemed 'navigable' under the classical
understanding of that term." Riverside Bayview, 474 U.S. at 133; see also Int'lPaper Co. v.
Ouellette, 479 U.S. 481, 486 n.6 (1987).
Nor do the agencies agree that the rule is a radical expansion of Clean Water Act
jurisdiction. Rather, in this rule, the agencies are exercising their authority to interpret
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"waters of the United States" to mean the waters defined by the familiar 1986 regulations,
with amendments to reflect the agencies' determination of the statutory limits on the scope
of the "waters of the United States" informed by the text of the relevant provisions of the
Clean Water Act and the statute as a whole, the scientific record, relevant Supreme Court
precedent, and the agencies' experience and technical expertise after more than45 years of
implementing the longstanding pre-2015 regulations defining "waters of the United States.
Moreover, as discussed in Section V 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.
2.8.3 Miscellaneous
One commenter stated that statutes must be construed according to their plain meaning at the time of their
enactment, citing the Supreme Court's opinion in Wisconsin Central Ltd v. United States, 138 S. Ct.
2067, 2074 (2018) providing that it is a '"fundamental canon of statutory construction' that words
generally should be 'interpreted as taking their ordinary, contemporary, common meaning ... at the time
Congress enacted the statute'" (citation omitted). This commenter argued that the proposed rule fails to
interpret "waters of the United States" consistent with the "plain meaning" of those words at the time
Congress promulgated them in the Clean Water Act. The commenter added that "at an absolute
minimum," a feature cannot be jurisdictional "if it lacks water" and expressed support for the Rapanos
plurality's opinion as providing "the only plausible interpretation" of the phrase.
The same commenter argued that the proposed rule would expand the federal government's power over
private property beyond the Clean Water Act's grant of authority to the agencies, citing Louisiana Public
Service Commission v. Federal Communications Commission, 476 U.S. 355, 374 (1986) ("[A]n agency
literally has no power to act. . . unless and until Congress confers power upon it."). This commenter
stated that the Supreme Court has held that Congress must "enact exceedingly clear language if it wishes
to significantly alter . . . the power of the Government over private property," U.S. Forest Service v.
Cowpasture River Preservation Ass 'n, 140 S. Ct. 1837, 1849-50 (2020), and asserted that the Clean
Water Act does not provide a clear grant of power to expand federal control over private property.
Several commenters asserted generally that the definition of "waters of the United States" may be
informed by science but that the statutory text ultimately dictates jurisdiction. One of these commenters
added that "[t]he importance of groundwater (and protecting groundwater resources) is perhaps the
clearest example of why the science cannot dictate the definition."
Agencies' Response: The agencies disagree that the rule is inconsistent with the plain
meaning of the text of the statute. In the rule, the agencies are using well-established tools of
statutory construction of an ambiguous statutory term to define the meaning of "waters of
the United States," starting with the text of the statute and informed by the statute as a
whole, as well as 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. The categories of
water bodies subject to federal protection under this rule are all within a plain reading of
the term "waters of the United States." Furthermore, it is unreasonable to define "waters of
the United States" as suggested by the commenter in a manner that excludes a water body
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that has a significant effect on traditional navigable waters, the territorial seas, or interstate
waters simply because it lacks water some of the time.
The agencies disagree with the suggestion that Congress in 1972 thought that this
jurisdictional term would be interpreted more narrowly. As noted in the preamble to the
final rule, the "major purpose" of the Clean Water Act was "to establish a comprehensive
long-range policy for the elimination of water pollution." S. Rep. No. 92-414, at 95 (1971), 2
Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee
Print compiled for the Senate Committee on Public Works by the Library of Congress),
Ser. No. 93-1, p. 1511 (1971) (emphasis added). "No Congressman's remarks on the
legislation were complete without reference to [its] 'comprehensive' nature." City of
Milwaukee, 451 U.S. at 318. In passing the 1972 Act, Congress "intended to repudiate limits
that had been placed on federal regulation by earlier water pollution control statutes and to
exercise its powers under the Commerce Clause to regulate at least some waters that would
not be deemed 'navigable' under the classical understanding of that term." Riverside
Bayview, 474 U.S. at 133; see also Int'lPaper Co. v. Ouellette, 479 U.S. 481, 486 n.6 (1987).
As explained in Section IV.A.3.a.ii of the Preamble to the Final Rule, the agencies disagree
that the plurality opinion provides a reasonable reading of the scope of "waters of the
United States."
Because this rule is firmly grounded in the text of the statute and informed by Supreme
Court precedent, it does not represent an unwarranted expansion of authority over private
property. It is fundamentally a rule about protecting water quality, not about private
property interests. Moreover, the fact that a resource is a "water of the United States" does
not mean that activities such as farming, construction, infrastructure development, or
resource extraction, cannot occur in or near the resource at hand. For example, the Clean
Water Act exempts a number of activities from permitting or from the definition of "point
source," including agricultural storm water and irrigation return flows. See 33 U.S.C.
1342(/)(2), 1362(14). Since 1977 the Clean Water Act in section 404(f) has exempted
activities such as many "normal farming, silviculture, and ranching activities" from the
section 404 permitting requirement, including seeding, harvesting, cultivating, planting, and
soil and water conservation practices. Id. at 1344(f)(1). This rule does not affect these
statutory exemptions. In addition, permits are routinely issued under Clean Water Act
sections 402 and 404 to authorize certain discharges to "waters of the United States." The
permitting authority generally works with permit applicants to ensure that activities can
occur without harming the integrity of the nation's waters. Thus, the permitting programs
allow for discharges to "waters of the United States" to occur while also ensuring that those
discharges meet statutory and regulatory requirements designed to protect water quality.
The agencies agree that the rule is appropriately informed by science but cannot be based
solely on scientific principles; instead, as discussed in Final Rule Preamble Section IV.A.,
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.
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2.9 Miscellaneous Comments on Legal Issues
Several commenters discussed water rights and/or the prior appropriation doctrine and expressed concern
about the proposed rule infringing upon state water rights, landowners' existing water rights, and
traditional water uses.
A number of state commenters asserted that the proposed rule attempts to expand the agencies'
jurisdiction in the name of "climate change," the "climate crisis" and "environmental justice," citing 86
FR 69382-86, 69393, 69446-47. The commenters stated that the Clean Water Act does not include these
terms and that addressing these concepts by substituting the purpose of the statute for its text would be
impermissible. The commenters further asserted that both the Rapanos plurality and concurrence
"recognized that such policy aims have nothing to do with the jurisdictional limits Congress set," citing
Justice Kennedy's statement that "environmental concerns provide no reason to disregard limits in the
statutory text," 547 U.S. at 778, and the plurality's statements that an "exclusive focus on ecological
factors, combined with [a] total deference" to the agencies' "ecological judgments" would let the agencies
"regulate the entire country as 'waters of the United States," id. at 749.
One commenter asked the agencies to clarify in the final rule that statements in the preamble are not
legally binding and cannot be relied upon by regulators or litigants to support claims of jurisdiction.
Agencies' Response: The agencies disagree that the Prior Appropriation Doctrine or water
rights generally have any relevance to this rulemaking, as the final rule does not address or
impact water rights under state law. Rather, the final rule defines water bodies that are
subject to permitting and other protections under the Clean Water Act and thus relates to
water quality—not about who has the rights to use any water in particular water bodies.
For further discussion of water quantity issues, see the agencies' response to comments in
Section 2.8.1.
The agencies also disagree with the suggestion that the rule impermissibly relies on climate
change or environmental justice issues to expand the scope of Clean Water Act jurisdiction.
As the agencies acknowledged in the preamble to the proposed rule, climate change can
have a variety of impacts on water resources. 86 FR 69382. 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
upstream 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.
Further, 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 conclude that this action does not have
disproportionately high and adverse human health or environmental effects on minority
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populations, low-income populations, and/or indigenous peoples, 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.
Regarding the function of the final rule's preamble language, the agencies note that
preamble language should be used for purposes of understanding the scope, requirements,
and basis of the final rule. The preamble to the final rule is the agencies' definitive
statement of the rationale for the final rule, including the rationale for any revisions to the
proposed rule, and should be used to assist in interpreting the final rule and providing
guidance on implementing the final rule. The supporting scientific, policy, and legal
rationales are contained in the preamble and the technical support document. Preamble
language is published in the Federal Register and provides additional background and detail
regarding the associated rule text.
Revised Definition of "Waters of the United States" - Response to Comments Document
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