22250 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

DEPARTMENT OF DEFENSE disclosure is restricted by statute. V. Overview of the Effects of the Rule and Certain other material, such as Supporting Analyses Department of the Army, Corps of copyrighted material, is not placed on VI. Statutory and Executive Order Reviews Engineers the internet and will be publicly A. Executive Order 12866: Regulatory Planning and Review; Executive Order available only in hard copy form. 33 CFR Part 328 13563: Improving Regulation and Publicly available docket materials are Regulatory Review available electronically through http:// B. Executive Order 13771: Reducing ENVIRONMENTAL PROTECTION www.regulations.gov. Regulation and Controlling Regulatory AGENCY FOR FURTHER INFORMATION CONTACT: Costs Michael McDavit, Oceans, , C. Paperwork Reduction Act 40 CFR Parts 110, 112, 116, 117, 120, D. Regulatory Flexibility Act and Communities Division, Office of 122, 230, 232, 300, 302, and 401 E. Unfunded Mandates Reform Act Water (4504–T), Environmental F. Executive Order 13132: Federalism [EPA–HQ–OW–2018–0149; FRL–10004–88– Protection Agency, 1200 Pennsylvania G. Executive Order 13175: Consultation OW] Avenue NW, Washington, DC 20460; and Coordination With Indian Tribal RIN 2040–AF75 telephone number: (202) 566–2465; Governments email address: [email protected]; or H. Executive Order 13045: Protection of The Navigable Waters Protection Rule: Jennifer A. Moyer, Regulatory Children From Environmental Health Definition of ‘‘Waters of the United Community of Practice (CECW–CO–R), and Safety Risks U.S. Army Corps of Engineers, 441 G I. Executive Order 13211: Actions States’’ Concerning Regulations That Street NW, Washington, DC 20314; Significantly Affect Energy Supply, AGENCY: Department of the Army, Corps telephone number: (202) 761–5903; of Engineers, Department of Defense; Distribution, or Use email address: USACE_CWA_Rule@ J. National Technology Transfer and and Environmental Protection Agency usace.army.mil. Advancement Act (EPA). SUPPLEMENTARY INFORMATION: K. Executive Order 12898: Federal Actions ACTION: Final rule. To Address Environmental Justice in Table of Contents Minority Populations and Low-Income SUMMARY: The Environmental Protection Populations Agency and the Department of the Army I. General Information L. Congressional Review Act A. Where can I find information related to are publishing a final rule defining the this rulemaking? I. General Information scope of waters federally regulated B. What action are the agencies taking? under the . The C. What is the agencies’ authority for A. Where can I find information related Navigable Waters Protection Rule is the taking this action? to this rulemaking? second step in a comprehensive, two- II. Background A. The Final Rule 1. Docket. An official public docket step process intended to review and for this action has been established revise the definition of ‘‘waters of the B. History of This Rulemaking 1. The Clean Water Act under Docket ID No. EPA–HQ–OW– ’’ consistent with the 2. Regulatory History 2018–0149. The official public docket Executive Order signed on February 28, 3. U.S. Supreme Court Decisions consists of the documents specifically 2017, ‘‘Restoring the Rule of Law, 4. The 2015 Rule referenced in this action and other Federalism, and Economic Growth by C. Executive Order 13778 and the ‘‘Step information related to this action. The Reviewing the ‘Waters of the United One’’ Rulemaking official public docket is the collection of States’ Rule.’’ Once effective, it replaces D. Summary of Stakeholder Outreach and the ‘‘Step Two’’ Rulemaking materials that is available for public the rule published on October 22, 2019. viewing at the OW Docket, EPA West, This final rule implements the overall E. Overview of Legal Construct for the Final Rule Room 3334, 1301 Constitution Ave. NW, objective of the Clean Water Act to 1. Statutory Framework Washington, DC 20004. This Docket restore and maintain the integrity of the 2. U.S. Supreme Court Precedent Facility is open from 8:30 a.m. to 4:30 nation’s waters by maintaining federal 3. Principles and Considerations p.m., Monday through Friday, excluding authority over those waters that F. Summary of Final Rule as Compared to legal holidays. The OW Docket Congress determined should be the 1986 Regulations Recodified in the 2019 Rule and the 2015 Rule telephone number is (202) 566–2426. A regulated by the Federal government reasonable fee will be charged for under its powers, G. Existing Guidance III. Definition of ‘‘Waters of the United copies. while adhering to Congress’ policy States’’ 2. Electronic Access. You may access directive to preserve States’ primary A. Key Terms and Concepts this Federal Register document authority over land and water resources. 1. Typical Year electronically under the ‘‘Federal This final definition increases the 2. Perennial, Intermittent, and Ephemeral Register’’ listings at http:// predictability and consistency of Clean 3. Breaks www.regulations.gov. An electronic Water Act programs by clarifying the B. Territorial Seas and Traditional version of the public docket is available Navigable Waters scope of ‘‘waters of the United States’’ through EPA’s electronic public docket federally regulated under the Act. C. Interstate Waters D. Tributaries and comment system, EPA Dockets. You DATES: This rule is effective on June 22, E. Ditches may access EPA Dockets at http:// 2020. F. and , and Impoundments of www.regulations.gov to view public ADDRESSES: The EPA has established a Jurisdictional Waters comments as they are submitted and docket for this action under Docket ID G. Adjacent Wetlands posted, access the index listing of the No. EPA–HQ–OW–2018–0149. All H. Waters and Features That Are Not contents of the official public docket, documents in the docket are listed on Waters of the United States and access those documents in the I. Placement of the Definition of ‘‘Waters of the http://www.regulations.gov website. the United States’’ in the Code of Federal public docket that are available Although listed in the index, some Regulations electronically, including the economic information is not publicly available, IV. State, Tribal, and Federal Agency Datasets and regulatory analyses for the final e.g., CBI or other information whose of Waters of the United States rule. For additional information about

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22251

EPA’s public docket, visit the EPA States are waters within the ordinary similar artificial feature, or through a Docket Center homepage at http:// meaning of the term, such as oceans, debris pile, boulder field, or similar www.epa.gov/epahome/dockets.htm. rivers, streams, lakes, ponds, and natural feature. A , , or Although not all docket materials may wetlands, and that not all waters are impoundment of a jurisdictional water be available electronically, you may still waters of the United States. The final is also jurisdictional if, in a typical year, access any of the publicly available rule includes the agencies’ longstanding it is inundated by flooding from a docket materials through the Docket category of the territorial seas and territorial sea or traditional navigable Facility. traditional navigable waters. A water, or tributary, or from another ‘‘tributary’’ is defined in the final rule jurisdictional lake, pond, or B. What action are the agencies taking? as a river, stream, or similar naturally impoundment. In this notice, the agencies are occurring surface water channel that The final rule defines ‘‘adjacent publishing a final rule defining ‘‘waters contributes surface water flow to a wetlands’’ as wetlands that abut a of the United States’’ in 33 CFR 328.3 territorial sea or traditional navigable territorial sea or traditional navigable and 40 CFR 120.2. water in a typical year either directly or water, a tributary, or a lake, pond, or indirectly through other tributaries, impoundment of a jurisdictional water; C. What is the agencies’ authority for are inundated by flooding from a taking this action? jurisdictional lakes, ponds, or impoundments, or adjacent wetlands. A territorial sea or traditional navigable The authority for this action is the tributary must be perennial or water, a tributary, or a lake, pond, or Federal Control Act, 33 intermittent in a typical year. The impoundment of a jurisdictional water U.S.C. 1251 et seq., including sections alteration or relocation of a tributary in a typical year; are physically 301, 304, 311, 401, 402, 404, and 501. does not modify its jurisdictional status separated from a territorial sea or traditional navigable water, a tributary, II. Background as long as it continues to be perennial or intermittent and contributes surface or a lake, pond, or impoundment of a A. The Final Rule water flow to a traditional navigable jurisdictional water only by a natural berm, bank, dune, or similar natural The U.S. Environmental Protection water or territorial sea in a typical year. feature; or are physically separated from Agency (EPA) and the U.S. Department A tributary does not lose its jurisdictional status if it contributes a territorial sea or traditional navigable of the Army (Army or Corps) (together, water, a tributary, or a lake, pond, or ‘‘the agencies’’) are publishing the surface water flow to a downstream jurisdictional water in a typical year impoundment of a jurisdictional water Navigable Waters Protection Rule only by an artificial dike, barrier, or defining the scope of waters subject to through a channelized non- jurisdictional surface water feature, similar artificial structure so long as that federal regulation under the Clean structure allows for a direct Water Act (CWA or the Act), in light of through a subterranean river, through a culvert, dam, tunnel, or other similar hydrological surface connection to the the U.S. Supreme Court cases in United territorial sea or traditional navigable States v. Riverside Bayview Homes artificial feature, or through a debris pile, boulder field, or similar natural water, tributary, or lake, pond, or (Riverside Bayview), Solid Waste impoundment of a jurisdictional water Agency of Northern Cook County v. feature. The term ‘‘tributary’’ includes a ditch that either relocates a tributary, is in a typical year, such as through a United States (SWANCC), and Rapanos culvert, flood or tide gate, pump, or v. United States (Rapanos), and constructed in a tributary, or is constructed in an adjacent as similar artificial feature. ‘‘Abut’’ means consistent with Executive Order 13778, when a wetland touches a territorial sea, signed on February 28, 2017, entitled long as the ditch is perennial or intermittent and contributes surface traditional navigable water, tributary, or ‘‘Restoring the Rule of Law, Federalism, lake, pond, or impoundment of a and Economic Growth by Reviewing the water flow to a traditional navigable water or territorial sea in a typical year. jurisdictional water at least at one point ‘Waters of the United States’ Rule.’’ or side. An adjacent wetland is In this final rule, the agencies The final rule defines ‘‘lakes and jurisdictional in its entirety when a road interpret the term ‘‘waters of the United ponds, and impoundments of or similar artificial structure divides the States’’ to encompass: The territorial jurisdictional waters’’ as standing wetland, as long as the structure allows seas and traditional navigable waters; bodies of open water that contribute for a direct hydrologic surface perennial and intermittent tributaries surface water flow in a typical year to connection through or over that that contribute surface water flow to a territorial sea or traditional navigable structure in a typical year. such waters; certain lakes, ponds, and water either directly or through a The final rule excludes from the impoundments of jurisdictional waters; tributary, another jurisdictional lake, definition of ‘‘waters of the United and wetlands adjacent to other pond, or impoundment, or an adjacent States’’ all waters or features not jurisdictional waters. Paragraph (a) of wetland. The agencies note that to be mentioned above. In addition to this the final rule identifies four categories jurisdictional, an ‘‘impoundment of a general exclusion, the final rule of waters that are ‘‘waters of the United jurisdictional water’’ must be an specifically clarifies that waters of the States.’’ These waters are referred to as impoundment of a territorial sea or United States do not include the ‘‘jurisdictional’’ in this notice and in the traditional navigable water, tributary, following: regulatory text. Paragraph (b) of the final jurisdictional lake or pond, or an • Groundwater, including rule identifies those waters and features adjacent wetland, and must meet the groundwater drained through that are excluded from the definition of conditions in paragraph (c)(6) of the subsurface drainage systems; ‘‘waters of the United States.’’ These final rule. A lake, pond, or • ephemeral features that flow only in waters are referred to as ‘‘non- impoundment of a jurisdictional water direct response to precipitation, jurisdictional’’ or ‘‘excluded’’ in this does not lose its jurisdictional status if including ephemeral streams, swales, notice and as ‘‘non-jurisdictional’’ in the it contributes surface water flow to a gullies, rills, and pools; regulatory text. Paragraph (c) of the final downstream jurisdictional water in a • diffuse stormwater runoff and rule defines applicable terms. typical year through a channelized non- directional sheet flow over upland; As a baseline concept, this final rule jurisdictional surface water feature, • ditches that are not traditional recognizes that waters of the United through a culvert, dike, spillway, or navigable waters, tributaries, or that are

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22252 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

not constructed in adjacent wetlands, CWA as it is commonly called,1 in 1972 ‘addition of pollutants,’ but deals with subject to certain limitations; to address longstanding concerns ‘pollution’ generally’’). • prior converted cropland; regarding the quality of the nation’s The objective of the new statutory • artificially irrigated areas that waters and the federal government’s scheme was ‘‘to restore and maintain would revert to upland if artificial ability to address those concerns under the chemical, physical, and biological irrigation ceases; existing law. Prior to 1972, the ability to integrity of the Nation’s waters.’’ 33 • artificial lakes and ponds that are control and redress water pollution in U.S.C. 1251(a). In order to meet that not jurisdictional impoundments and the nation’s waters largely fell to the objective, Congress declared two that are constructed or excavated in Corps under the Rivers and Harbors Act national goals: (1) ‘‘that the discharge of upland or non-jurisdictional waters; of 1899 (RHA). While much of that pollutants into the navigable waters be • water-filled depressions statute focused on restricting eliminated by 1985’’; and (2) ‘‘that constructed or excavated in upland or in obstructions to navigation on the wherever attainable, an interim goal of non-jurisdictional waters incidental to nation’s major waterways, section 13 of water quality which provides for the mining or construction activity, and pits the RHA made it unlawful to discharge protection and propagation of fish, excavated in upland or in non- refuse ‘‘into any navigable water of the shellfish, and wildlife and provides for jurisdictional waters for the purpose of United States, or into any tributary of recreation in and on the water be obtaining fill, sand, or gravel; any navigable water from which the achieved by July 1, 1983 . . . .’’ Id. at • stormwater control features same shall float or be washed into such 1251(a)(1)–(2). constructed or excavated in upland or in navigable water.’’ 2 33 U.S.C. 407. Congress also established several key non-jurisdictional waters to convey, Congress had also enacted the Water policies that direct the work of the treat, infiltrate, or store stormwater run- Pollution Control Act of 1948, Public agencies to effectuate those goals. For off; Law 80–845, 62 Stat. 1155 (June 30, example, Congress declared as a • groundwater recharge, water reuse, 1948), to address interstate water national policy ‘‘that the discharge of and wastewater recycling structures pollution, and subsequently amended toxic pollutants in toxic amounts be constructed or excavated in upland or in that statute in 1956 (giving the statute prohibited; . . . that Federal financial non-jurisdictional waters; and its current formal name), 1961, and assistance be provided to construct • waste treatment systems. 1965. The early versions of the CWA publicly owned waste treatment works; In addition, the agencies have defined promoted the development of pollution . . . that areawide waste treatment the terms ‘‘upland,’’ ‘‘prior converted abatement programs, required States to management planning processes be cropland,’’ and ‘‘waste treatment develop water quality standards, and developed and implemented to assure system’’ to improve regulatory authorized the Federal government to adequate control of sources of pollutants predictability and clarity. bring enforcement actions to abate water in each State; . . . [and] that programs To develop this revised definition of pollution. for the control of nonpoint sources of ‘‘waters of the United States,’’ the These early statutory efforts, however, pollution be developed and agencies looked to the text and structure proved inadequate to address the implemented in an expeditious manner of the CWA, as informed by its decline in the quality of the nation’s so as to enable the goals of this Act to legislative history and Supreme Court waters, see City of Milwaukee v. Illinois, be met through the control of both point guidance, and took into account the 451 U.S. 304, 310 (1981), so Congress and nonpoint sources of pollution.’’ 33 agencies’ expertise, policy choices, and performed a ‘‘total restructuring’’ and U.S.C. 1251(a)(3)–(7). Congress provided a major role for the scientific principles. This final rule ‘‘complete rewriting’’ of the existing States in implementing the CWA, presents a unifying legal theory for statutory framework in 1972, id. at 317 balancing the preservation of the federal jurisdiction over those waters (quoting legislative history of 1972 traditional power of States to regulate and wetlands that maintain a sufficient amendments). That restructuring land and water resources within their surface water connection to traditional resulted in the enactment of a borders with the need for a national navigable waters or the territorial seas. comprehensive scheme (including water quality regulation. For example, This definition strikes a reasonable and voluntary as well as regulatory the statute highlighted ‘‘the policy of the appropriate balance between Federal programs) designed to prevent, reduce, Congress to recognize, preserve, and and State waters and carries out and eliminate pollution in the nation’s protect the primary responsibilities and Congress’ overall objective to restore waters generally, and to regulate the rights of States to prevent, reduce, and and maintain the integrity of the discharge of pollutants into navigable eliminate pollution’’ and ‘‘to plan the nation’s waters in a manner that waters specifically. See, e.g., S.D. development and use . . . of land and preserves the traditional sovereignty of Warren Co. v. Maine Bd. of Envtl. Prot., water resources.’’ 33 U.S.C. 1251(b). States over their own land and water 547 U.S. 370, 385 (2006) (noting that Congress also declared as a national resources. The final rule also provides ‘‘the Act does not stop at controlling the clarity and predictability for Federal policy that States manage the major construction grant program and agencies, States, Tribes, the regulated 1 The FWPCA is commonly referred to as the community, and the public. This final CWA following the 1977 amendments to the implement the core permitting programs rule is intended to ensure that the FWPCA. Public Law 95–217, 91 Stat. 1566 (1977). authorized by the statute, among other agencies operate within the scope of the For ease of reference, the agencies will generally responsibilities. Id. Congress added that refer to the FWPCA in this notice as the CWA or Federal government’s authority over ‘‘[e]xcept as expressly provided in this the Act. Act, nothing in this Act shall . . . be navigable waters under the CWA and 2 The term ‘‘navigable water of the United States’’ the Commerce Clause of the U.S. is a term of art used to refer to waters subject to construed as impairing or in any Constitution. federal jurisdiction under the RHA. See, e.g., 33 manner affecting any right or CFR 329.1. The term is not synonymous with the jurisdiction of the States with respect to B. History of This Rulemaking phrase ‘‘waters of the United States’’ under the the waters (including boundary waters) CWA, see id., and the general term ‘‘navigable 3 1. The Clean Water Act waters’’ has different meanings depending on the of such States.’’ Id. at 1370. Congress context of the statute in which it is used. See, e.g., Congress amended the Federal Water PPL Montana, LLC v. Montana, 565 U.S. 576, 591– 3 33 U.S.C. 1370 also prohibits authorized States Pollution Control Act (FWPCA), or the 93 (2012). from adopting any limitations, prohibitions, or

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22253

pledged the Federal government to basin of the Great Lakes’’) (emphasis chemical, physical, and biological provide technical support and financial added). Similar broad pollution control integrity of the Nation’s waters’’ by aid to the States ‘‘in connection with the programs were created for other major addressing pollution of all waters via prevention, reduction, and elimination watersheds, including, for example, the non-regulatory means and federally of pollution.’’ Id. at 1251(b). Chesapeake Bay, see id. at 1267(a)(3), regulating the discharge of pollutants to To carry out these policies, Congress Long Island Sound, see id. at the subset of waters identified as broadly defined ‘‘pollution’’ to mean 1269(c)(2)(D), and Lake Champlain, see ‘‘navigable waters.’’ 4 ‘‘the man-made or man-induced id. at 1270(g)(2). Some commenters Many commenters on this rulemaking alteration of the chemical, physical, noted that the Great Lakes, Long Island agreed with this summary of the CWA, biological, and radiological integrity of Sound, Chesapeake Bay, and Lake stating that it accurately characterizes water,’’ 33 U.S.C. 1362(19), in keeping Champlain are waters of the United the full scope of the Act and the with the objective of the Act ‘‘to restore States to which regulatory programs thoughtful, holistic approach Congress and maintain the chemical, physical, apply, and that the purpose of the enacted to address water pollution in and biological integrity of the Nation’s technical assistance and grants in the this country. Many commenters stated waters.’’ Id. at 1251(a). Congress then cited sections is to assist states and that Congress developed both regulatory crafted a non-regulatory statutory others in achieving the requirements of and non-regulatory approaches for framework to provide technical and the Act. The agencies agree that these addressing water pollution, whereby financial assistance to the States to waters are waters of the United States, ‘‘navigable waters’’ are subject to federal prevent, reduce, and eliminate pollution but the emphasized language in the regulatory requirements under the CWA in the nation’s waters generally. For cited provisions above makes clear that but many other classes of the ‘‘nation’s example, section 105 of the Act, ‘‘Grants these provisions address all bodies of waters’’ are not. Some commenters for research and development,’’ water in the watersheds of the Great disagreed that the CWA distinguishes authorized the EPA ‘‘to make grants to Lakes, Long Island Sound, Chesapeake between the ‘‘nation’s waters’’ and a any State, municipality, or Bay, and Lake Champlain, regardless of subset of those waters known as the intermunicipal or interstate agency for the jurisdictional status of those waters. ‘‘navigable waters.’’ Many of these the purpose of assisting in the In addition to the Act’s non-regulatory commenters suggested that the agencies’ development of any project which will measures to control pollution of the interpretation is not supported by the demonstrate a new or improved method nation’s waters generally, Congress text or structure of the Act and is based of preventing, reducing, and eliminating created a federal regulatory permitting instead on mischaracterizations of the the discharge into any waters of Act’s provisions. Some commenters pollutants from sewers which carry program designed to address the discharge of pollutants into a subset of argued that the two terms are storm water or both storm water and synonymous under the Act, and others pollutants.’’ Id. at 1255(a)(1) (emphasis those waters identified as ‘‘navigable waters,’’ defined as ‘‘the waters of the stated that the non-regulatory provisions added). Section 105 also authorized the of the CWA were intended to EPA ‘‘to make grants to any State or United States,’’ 33 U.S.C. 1362(7). Section 301 contains the key regulatory complement the regulatory States or interstate agency to requirements applicable to waters of the demonstrate, in river basins or portions mechanism: ‘‘Except as in compliance with this section and sections 302, 306, United States, as opposed to addressing thereof, advanced treatment and a separate category of waters. environmental enhancement techniques 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any Fundamental principles of statutory to control pollution from all sources interpretation support the agencies’ . . . including nonpoint sources, . . . person shall be unlawful.’’ Id. at 1311(a). A ‘‘discharge of a pollutant’’ is recognition of a distinction between the [and] . . . to carry out the purposes of ‘‘nation’s waters’’ and ‘‘navigable section 301 of this Act . . . for research defined to include ‘‘any addition of any pollutant to navigable waters from any waters.’’ As the Supreme Court has and demonstration projects for observed, ‘‘[w]e assume that Congress prevention of pollution of any waters by point source,’’ defined to mean ‘‘any discernible, confined and discrete used two terms because it intended each industry including, but not limited to, term to have a particular, the prevention, reduction, and conveyance’’ such as a pipe or ditch. Id. at 1362(12), (14). The term ‘‘pollutant’’ nonsuperfluous meaning.’’ Bailey v. elimination of the discharge of United States, 516 U.S. 137, 146 (1995) pollutants.’’ Id. at 1255(b)–(c) (emphasis means ‘‘dredged spoil, solid waste, incinerator residue, sewage, garbage, added); see also id. at 1256(a) 4 Members of Congress were aware when they (authorizing the EPA to issue ‘‘grants to sewage sludge, munitions, chemical drafted the 1972 CWA amendments that different States and to interstate agencies to assist wastes, biological materials, radioactive types of the Nation’s waters would be subject to them in administering programs for the materials, heat, wrecked or discarded different degrees of federal control. For instance, in equipment, rock, sand, cellar dirt and House debate regarding a proposed and ultimately prevention, reduction, and elimination failed amendment to prohibit the discharge of of pollution’’). industrial, municipal, and agricultural pollutants to groundwater in addition to navigable Section 108, ‘‘Pollution control in the waste discharged into water.’’ Id. at waters, Representative Don H. Clausen stated, ‘‘Mr. Great Lakes,’’ authorized the EPA to 1362(6). Thus, it is unlawful to Chairman, in the early deliberations within the discharge pollutants into the ‘‘waters of committee which resulted in the introduction of enter into agreements with any State to H.R. 11896, a provision for ground waters . . . was develop plans for the ‘‘elimination or the United States’’ from a point source thoroughly reviewed and it was determined by the control of pollution, within all or any unless the discharge is in compliance committee that there was not sufficient information part of the watersheds of the Great with certain enumerated sections of the on ground waters to justify the types of controls that Lakes.’’ 33 U.S.C. 1258(a) (emphasis CWA, including obtaining authorization are required for navigable waters .... I refer the pursuant to the section 402 National gentleman to the objectives of this act as stated in added); see also id. at 1268(a)(3)(C) section 101(a). The objective of this act is to restore (defining the ‘‘Great Lakes System’’ as Pollutant Discharge Elimination System and maintain the chemical, physical, and biological ‘‘all the streams, rivers, lakes, and other (NPDES) permit program or the section integrity of the Nation’s waters. I call your attention bodies of water within the drainage 404 dredged or fill material permit to the fact that this does not say the Nation’s program. See id. at 1342, 1344. Congress [‘]navigable waters,’ ‘interstate waters,’ or ‘intrastate waters.’ It just says ‘waters.’ This includes ground standards that are less stringent than required by therefore intended to achieve the Act’s waters.’’ 118 Cong. Rec. at 10,667 (daily ed. March the CWA. objective ‘‘to restore and maintain the 28, 1972).

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22254 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

(recognizing the canon of statutory States within their boundaries,5 and two tributaries or coastal marshes above the construction against superfluity). States (Michigan and New Jersey) mean high tide mark or wetlands above Further, ‘‘the words of a statute must be administer the section 404 permit the ordinary high water mark. The read in their context and with a view to program for those waters that are District Court held that the term their place in the overall statutory assumable by States pursuant to section ‘‘navigable waters’’ is not limited to the scheme.’’ FDA v. Brown & Williamson 404(g). Several additional states are traditional tests of and Tobacco Corp., 529 U.S. 120, 133 (2000) exploring the possibility of assuming ordered the Corps to revoke its (internal quotation marks and citation the section 404 permit program. At definition and publish a new one omitted); see also United Sav. Ass’n of present, no Tribes administer the ‘‘clearly recognizing the full regulatory v. Timbers of Inwood Forest section 402 or 404 programs, although mandate of the Water Act.’’ Natural Associates, 484 U.S. 365, 371 some are exploring the possibility. For Resources Defense Council, Inc. v. (‘‘Statutory construction . . . is a additional information regarding State Callaway, 392 F. Supp. 685 (D.D.C. holistic endeavor. A provision that may and tribal programs, see the Resource 1975). seem ambiguous in isolation is often and Programmatic Assessment for the In response to this decision, the Corps clarified by the remainder of the final rule. issued interim regulations in 1975 that statutory scheme—because the same defined the term ‘‘navigable waters’’ to terminology is used elsewhere in a 2. Regulatory History include periodically inundated coastal context that makes its meaning clear[.]’’) In May 1973, the EPA issued its first wetlands contiguous with or adjacent to (citation omitted). Here, the non- set of regulations to implement the new navigable waters, periodically regulatory sections of the CWA reveal NPDES permit program established in inundated freshwater wetlands Congress’ intent to restore and maintain the 1972 CWA amendments. Those contiguous with or adjacent to navigable the integrity of the nation’s waters using regulations defined the phrase waters, and, as in the EPA’s 1973 federal assistance to support State and ‘‘navigable waters’’ as: local partnerships to control pollution • All navigable waters of the United regulations, certain intrastate waters in the nation’s waters and a federal States; based on non-transportation impacts on regulatory prohibition on the discharge • Tributaries of navigable waters of interstate commerce. The Corps revised of pollutants to the navigable waters. If the United States; the definition in 1977 to encompass Congress had intended the terms to be • Interstate waters; traditional navigable waters, tributaries synonymous, it would have used • Intrastate lakes, rivers, and streams to navigable waters, interstate waters, identical terminology. Instead, Congress which are utilized by interstate travelers adjacent wetlands to those categories of chose to use separate terms, and the for recreational or other purposes; waters, and ‘‘[a]ll other waters’’ the agencies are instructed by the Supreme • Intrastate lakes, rivers, and streams ‘‘degradation or destruction of which Court to presume Congress did so from which fish or shellfish are taken could affect interstate commerce.’’ 42 intentionally. and sold in interstate commerce; and FR 37122, 37144 (Jul. 19, 1977). Under the enacted statutory scheme, • Intrastate lakes, rivers, and streams The EPA and the Corps have the States are primarily responsible for which are utilized for industrial maintained separate regulations developing water quality standards for purposes by industries in interstate defining the statutory term ‘‘waters of waters of the United States within their commerce. the United States,’’ but the text of the borders and reporting on the condition 38 FR 13528, 13529 (May 22, 1973) regulations has been virtually identical of those waters to the EPA every two (codified at 40 CFR 125.1 (1973)). starting in 1986.6 In 1986, for example, years. 33 U.S.C. 1313, 1315. States must In 1974, the Corps issued its first set the Corps consolidated and recodified develop total maximum daily loads of regulations defining ‘‘waters of the its regulations to align with (TMDLs) for waters that are not meeting United States’’ for the purpose of clarifications that the EPA had established water quality standards and implementing section 404 of the CWA previously promulgated. See 51 FR must submit those TMDLs to the EPA as well as sections 9, 10, 11, 13, and 14 41206 (Nov. 13, 1986). While the Corps for approval. Id. at 1313(d). States also of the RHA. These regulations stated in 1986 that the recodified have authority to issue water quality reaffirmed the Corps’ view that its regulation neither reduced nor certifications or waive certification for dredged and fill jurisdiction under expanded jurisdiction, its previous every federal permit or license issued section 404 was the same as its exclusion for ditches was moved from within their borders that may result in traditional jurisdiction under the RHA. the regulatory text to the final rule a discharge to navigable waters. Id. at See 39 FR 12115, 12119 (Apr. 3, 1974) preamble. Id. at 41216–17. And the 1341. (codified at 33 CFR 209.120). Corps added to the preamble what later These same regulatory authorities can Specifically, the Corps defined the became known as the ‘‘Migratory Bird be assumed by Indian tribes under ‘‘waters of the United States’’ as waters Rule,’’ which claimed jurisdiction over section 518 of the CWA, which that ‘‘are subject to the ebb and flow of any waters which are or may be used by authorizes the EPA to treat eligible the tide, and/or are presently, or have birds protected by migratory bird Indian tribes with reservations in a been in the past, or may be in the future treaties, waters which may be used as manner similar to States for a variety of susceptible for use for purposes of habitat for birds flying across state lines, purposes, including administering each interstate or foreign commerce.’’ Id. waters which may be used by of the principal CWA regulatory Environmental organizations endangered species, and waters used to programs. 33 U.S.C. 1377(e). In challenged the Corps’ 1974 regulation in addition, States and Tribes retain the U.S. District Court for the District of 6 authority to protect and manage the use For convenience, the agencies generally refer to Columbia, arguing that the Corps’ the Corps’ regulations throughout this notice at 33 of those waters that are not navigable definition of ‘‘navigable waters’’ was CFR 328.3. The EPA’s codification of the definition waters under the CWA. See, e.g., id. at inadequate because it did not include of ‘‘waters of the United States’’ is found at 40 CFR 1251(b), 1251(g), 1370, 1377(a). At this 110.1, 112.2, 116.3, 117.1, 122.2, 230.3, 232.2, 300.5, 302.3, 401.11, and Appendix E to Part 300. time, forty-seven States administer 5 Three States (Massachusetts, New Hampshire, This final rule also codifies the definition of portions of the CWA section 402 permit and New Mexico) do not currently administer any ‘‘waters of the United States’’ in a new section program for those waters of the United part of the CWA section 402 program. 120.2.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22255

irrigate crops sold in interstate agencies did not include a definition of issued a joint Memorandum to the Field commerce. Id. at 41217. ‘‘prior converted cropland’’ in the text (the 2005 Memorandum) in an effort to The 1986 regulatory text identified of the Code of Federal Regulations but again align the CWA section 404 the following as waters of the United noted in the preamble to the 1993 Rule program with the FSA amendments.9 States: that the term was defined at that time The 2005 Memorandum provided that a • All traditional navigable waters,7 by the USDA National Food Security ‘‘certified [prior converted] interstate waters, and the territorial seas; Act Manual (NFSAM). Id. The agencies determination made by [USDA] remains • All impoundments of jurisdictional at that time also declined to establish valid as long as the area is devoted to waters; regulatory text specifying when the an agricultural use. If the land changes • All ‘‘other waters’’ such as lakes, prior converted cropland designation is to a non-agricultural use, the [prior ponds, and sloughs the ‘‘use, no longer applicable. In the preamble to converted] determination is no longer degradation or destruction of which the 1993 Rule, the agencies stated that applicable and a new wetland could affect interstate or foreign ‘‘[t]he Corps and EPA will use the determination is required for CWA commerce’’; [Natural Resources Conservation purposes.’’ 2005 Memorandum at 4. • Tributaries of traditional navigable Service’s] provisions on ‘abandonment,’ The 2005 Memorandum did not waters, interstate waters, thereby ensuring that PC cropland that clearly address the abandonment impoundments, or ‘‘other waters’’; and, is abandoned within the meaning of principle that the agencies had been • Wetlands adjacent to traditional those provisions and which exhibit[s] implementing since the 1993 navigable waters, interstate waters, the wetlands characteristics will be rulemaking. The change in use policy territorial seas, impoundments, considered wetlands subject to Section was also never promulgated as a rule tributaries, or ‘‘other waters’’ (other than 404 regulation.’’ Id. at 45034. The and was declared unlawful by one waters that are themselves wetlands). agencies summarized these district court because it effectively 33 CFR 328.3(a)(1)–(7) (1987). The 1986 abandonment provisions by explaining modified the 1993 preamble language regulation also excluded ‘‘waste that prior converted cropland which without any rulemaking process. New treatment systems’’ from the definition meets wetland criteria is considered to Hope Power Co. v. U.S. Army Corps of of ‘‘waters of the United States,’’ be abandoned unless: At least once in Eng’rs, 746 F. Supp. 2d 1272, 1282 (S.D. consistent with the EPA’s regulatory every five years the area has been used Fla. 2010). definition. Id. at 328.3 (a)(7), (b) (1987); for the production of an agricultural see also 44 FR 32854 (June 7, 1979). commodity, or the area has been used 3. U.S. Supreme Court Decisions On August 25, 1993, the agencies and will continue to be used for the From the earliest rulemaking efforts amended the regulatory definition of production of an agricultural following adoption of the 1972 CWA ‘‘waters of the United States’’ to commodity in a commonly used amendments, to the agencies’ most categorically exclude ‘‘prior converted rotation with aquaculture, grasses, recent attempt to define ‘‘waters of the croplands.’’ 58 FR 45008, 45031 (Aug. legumes, or pasture production. Id. United States’’ in 2015, the sparse 25, 1993) (‘‘1993 Rule’’) (codified at 33 Congress amended the FSA wetland statutory definition has spurred CFR 328.3(a)(8) (1994)). The stated conservation provisions in 1996 to state substantial litigation testing the purpose of the amendment was to that USDA certifications of eligibility for meaning of the phrase. Hundreds of promote ‘‘consistency among various program benefits (e.g., determinations cases and dozens of courts have federal programs affecting wetlands,’’ in by the Natural Resources Conservation attempted to discern the intent of particular the Food Security Act of 1985 Service (NRCS) that particular areas Congress when crafting the phrase. See, (FSA) programs implemented by the constitute prior converted cropland) e.g., Rapanos v. United States, 547 U.S. U.S. Department of Agriculture (USDA) ‘‘shall remain valid and in effect as long 715, 739 (2006) (Scalia, J., plurality) and the CWA programs implemented by as the area is devoted to an agricultural (briefly summarizing case history). The the agencies.8 58 FR 45031. The use or until such time as the person federal courts have established different affected by the certification requests analytical frameworks to interpret the 7 ‘‘Traditional navigable waters’’ (or waters that review of the certification by the phrase, and the applicable test may are traditionally understood as navigable) refers to Secretary [of Agriculture].’’ Public Law differ from State to State. See, e.g., all waters which are currently used, were used in 104–127, 322(a)(4), 110 Stat. 888 (1996); Memorandum from Dick Pedersen, the past, or may be susceptible to use in interstate 16 U.S.C. 3822(a)(4). Thus, for purposes or foreign commerce, including all waters subject to President of the Environmental Council the ebb and flow of the tide. of farm program eligibility, the 1996 of the States (ECOS) of September 11, 8 Title XII of the Food Security Act of 1985, as amendments designate as prior 2014, Concerning Waters of the United amended, encourages participants in USDA converted cropland those areas that may States under the Act at 2–23 (2014) programs to adopt land management measures by not have qualified for the CWA linking eligibility for USDA program benefits to (hereinafter, the ‘‘ECOS farming practices on highly erodible land and exclusion under the abandonment Memorandum’’), available at http:// wetlands (i.e., the wetland conservation principles from the 1993 preamble, so acoel.org/file.axd?file=2014%2f9%2f provisions). USDA policy guidance regarding long as such areas remain in agricultural Waters+of+the+U+S+Final+9_11_14.pdf implementation of the wetland conservation use. The agencies did not update their provisions is found in the current edition of the (summarizing case history following Natural Resource Conservation Service National prior converted cropland regulations for Rapanos). Food Security Act Manual (NFSAM), including the purposes of the CWA following the 1996 As part of this complex litigation procedures for how to delineate wetlands and make amendments to wetland conservation history, three key U.S. Supreme Court wetland determinations in accordance with Subpart provisions of the FSA, as those C of 7 CFR part 12. Due to the unique statutory decisions have interpreted the term provisions of the FSA, USDA wetland regulations neither defined prior determinations may identify certain areas as exempt converted cropland nor specified when 9 Natural Resources Conservation Service and under the 1985 Act but remain subject to the a valid prior converted cropland U.S. Army Corps of Engineers. Memorandum to the requirements of the CWA. To avoid potential determination might cease to be valid. Field on Guidance on Conducting Wetland confusion, USDA clearly informs program Determinations for the Food Security Act of 1985 participants that USDA wetland determinations are However, in 2005, the Army and USDA and section 404 of the Clean Water Act (Feb. 25, for purposes of implementing the wetland 2005), available at https://usace.contentdm. conservation provisions only, and that participants whether a particular activity will require a CWA oclc.org/utils/getfile/collection/p16021coll11/id/ should contact the Corps for clarification as to section 404 permit. 2508.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22256 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

‘‘waters of the United States’’ and its power. Id. The CWA contains no such months.’’ Id. at 732 n.5 (emphasis in implementing regulations and serve as clear statement. Id. at 174. original). guideposts for the agencies’ In January 2003, the EPA and the In a concurring opinion, Justice interpretation of the phrase ‘‘waters of Corps issued joint guidance interpreting Kennedy took a different approach, the United States.’’ In 1985, the the Supreme Court decision in concluding that ‘‘to constitute Supreme Court deferred to the Corps’ SWANCC.10 The guidance indicated ‘navigable waters’ under the Act, a assertion of jurisdiction over wetlands that SWANCC focused on nonnavigable, water or wetland must possess a actually abutting a traditional navigable isolated, intrastate waters, and called for ‘significant nexus’ to waters that are or water in Michigan, stating that adjacent field staff to coordinate with their were navigable in fact or that could wetlands may be regulated as waters of respective Corps or EPA Headquarters reasonably be so made.’’ Rapanos, 547 the United States because they are on jurisdictional determinations that U.S. at 759 (Kennedy, J., concurring in ‘‘inseparably bound up’’ with navigable asserted jurisdiction over such waters. the judgment) (citing SWANCC, 531 waters and ‘‘in the majority of cases’’ The agencies at that time focused their U.S. at 167, 172). He stated that adjacent interpretation of SWANCC to its facts, have ‘‘significant effects on water wetlands possess the requisite and applied the decision narrowly as significant nexus if the wetlands ‘‘either quality and the aquatic ecosystem’’ in restricting the exercise of federal alone or in combination with similarly those waters. United States v. Riverside jurisdiction solely based on the situated lands in the region, Bayview Homes, 474 U.S. 121, 131–35 & Migratory Bird Rule. significantly affect the chemical, n.9 (1985). The Court recognized that The Court most recently interpreted physical, and biological integrity of ‘‘[i]n determining the limits of its power the term ‘‘waters of the United States’’ other covered waters more readily to regulate discharges under the Act, the in Rapanos v. United States, 547 U.S. understood as ‘navigable.’ ’’ Id. at 780. Corps must necessarily choose some 715 (2006). Rapanos involved two Following Rapanos, on June 7, 2007, point at which water ends and land consolidated cases in which the CWA the agencies issued joint guidance begins .... Where on this continuum had been applied to wetlands located entitled ‘‘Clean Water Act Jurisdiction to find the limit of ‘waters’ is far from near man-made ditches that were Following the U.S. Supreme Court’s obvious.’’ Id. at 132. The Court ultimately connected to traditional Decision in Rapanos v. United States acknowledged the ‘‘inherent difficulties navigable waters. All members of the and Carabell v. United States’’ to of defining precise bounds to regulable Court agreed that the term ‘‘waters of address the waters at issue in that waters,’’ and deferred to the agencies’ the United States’’ encompasses some decision. The guidance did not change interpretation that the close ecological waters that are not navigable in the the codified definition of ‘‘waters of the relationship between adjacent wetlands traditional sense. United States.’’ The guidance indicated and traditional navigable waters A four-Justice plurality interpreted that the agencies would assert provided a legal justification for treating the term ‘‘waters of the United States’’ jurisdiction over traditional navigable wetlands as waters. Id. at 134. The Court to ‘‘include[ ] only those relatively waters and their adjacent wetlands, also ‘‘conclude[d] that a definition of permanent, standing or continuously relatively permanent nonnavigable ‘waters of the United States’ flowing bodies of water ‘forming tributaries of traditional navigable encompassing all wetlands adjacent to geographic features’ that are described waters and wetlands that abut them, other bodies of water over which the in ordinary parlance as ‘streams[,] . . . nonnavigable tributaries that are not Corps has jurisdiction is a permissible oceans, rivers, [and] lakes,’ ’’ Rapanos, relatively permanent if they have a interpretation of the Act.’’ Id. at 135. 547 U.S. at 739 (Scalia, J., plurality) significant nexus with a traditional (quoting Webster’s New International The Supreme Court again addressed navigable water, and wetlands adjacent Dictionary 2882 (2d ed. 1954)), and to nonnavigable tributaries that are not the definition of ‘‘waters of the United ‘‘wetlands with a continuous surface States’’ in Solid Waste Agency of relatively permanent if they have a connection’’ to a ‘‘relatively permanent significant nexus with a traditional Northern Cook County v. U.S. Army body of water connected to traditional Corps of Engineers, 531 U.S. 159 (2001) navigable water. The guidance was interstate navigable waters.’’ Id. at 742. reissued with minor changes on (SWANCC). In SWANCC, the Court The plurality explained that ‘‘[w]etlands rejected a claim of federal jurisdiction December 2, 2008 (hereinafter, the with only an intermittent, physically ‘‘Rapanos Guidance’’).11 After issuance over nonnavigable, isolated, intrastate remote hydrologic connection to ‘waters ponds that lack a sufficient connection of the Rapanos Guidance, Members of of the United States’ do not implicate Congress, developers, farmers, State and to traditional navigable waters, noting the boundary-drawing problem of that the term ‘‘navigable’’ must be given local governments, environmental Riverside Bayview,’’ and thus do not organizations, energy companies, and meaning within the context and have the ‘‘necessary connection’’ to others asked the agencies to replace the application of the statute. Id. The Court covered waters that triggers CWA guidance with a regulation that would held that interpreting the statute to jurisdiction. Id. at 742. The plurality provide clarity and certainty regarding extend to nonnavigable, isolated, also noted that its reference to the scope of the waters federally intrastate ponds that lack a sufficient ‘‘relatively permanent’’ waters did ‘‘not connection to traditional navigable regulated under the CWA. necessarily exclude streams, rivers, or Since Rapanos, litigation has waters would invoke the outer limits of lakes that might dry up in extraordinary Congress’ power under the Commerce continued to confuse the regulatory circumstances, such as drought,’’ or landscape. See, e.g., ECOS Clause. Id. at 172. Where an ‘‘seasonal rivers, which contain Memorandum at 2–23. The Supreme administrative interpretation of a statute continuous flow during some months of presses against the outer limits of the year but no flow during dry 11 See U.S. EPA and U.S. Army Corps of Congress’ constitutional authority, the Engineers. Clean Water Act Jurisdiction Following Court explained, it expects a clear 10 See U.S. EPA and U.S. Army Corps of the U.S. Supreme Court’s Decision in Rapanos v. statement from Congress that it intended Engineers. Legal Memoranda Regarding Solid Waste United States & Carabell v. United States at 1 (Dec. that result, and even more so when the Agency of Northern Cook County (SWANCC) v. 2, 2008) (‘‘Rapanos Guidance’’), available at https:// United States (Jan. 15, 2003), available at https:// www.epa.gov/sites/production/files/2016-02/ broad interpretation authorizes federal www.epa.gov/sites/production/files/2016-04/ documents/cwa_jurisdiction_following_ encroachment upon a traditional State documents/swancc_guidance_jan_03.pdf. rapanos120208.pdf.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22257

Court also has twice weighed in on 4. The 2015 Rule such as ‘‘adjacent’’ (by adding a new topics related to the agencies’ On June 29, 2015, the agencies issued definition of ‘‘neighboring’’ that is used implementation of their authorities a final rule (80 FR 37054) amending in the definition of ‘‘adjacent’’) that under the CWA to help clarify federal various portions of the CFR that set would determine whether waters were authority in this area. In each case, forth a definition of ‘‘waters of the ‘‘jurisdictional by rule.’’ See 80 FR members of the Court noted the United States,’’ a term contained in the 37105. Specifically, a ‘‘tributary’’ under longstanding confusion regarding the CWA’s definition of ‘‘navigable waters,’’ the 2015 Rule is a water that contributes scope of federal jurisdiction under the 33 U.S.C. 1362(7). One of the stated flow, either directly or through another CWA and the importance of providing purposes of the 2015 Rule was to water, to a water identified in the first clear guidance to the regulated ‘‘increase CWA program predictability three categories of ‘‘jurisdictional by community. In 2012, for example, the and consistency by clarifying the scope rule’’ waters that is characterized by the Supreme Court unanimously rejected of ‘waters of the United States’ protected presence of the ‘‘physical indicators’’ of a bed and banks and an ordinary high the EPA’s longstanding position that under the Act.’’ 80 FR 37054. The 2015 water mark. According to the 2015 compliance orders issued under the Rule defined the geographic scope of the CWA by placing waters into three Rule’s preamble, ‘‘[t]hese physical CWA to force property owners to restore indicators demonstrate there is volume, wetlands are not judicially reviewable categories: (A) Waters that are categorically ‘‘jurisdictional by rule’’ in frequency, and duration of flow as final agency actions. See Sackett v. sufficient to create a bed and banks and EPA, 566 U.S. 120, 131 (2012). In a all instances (i.e., without the need for any additional analysis); (B) waters that an ordinary high water mark, and thus concurring opinion, Justice Alito to qualify as a tributary.’’ Id.13 referred to the jurisdictional reach of the are subject to case-specific analysis to determine whether they are Tributaries under the 2015 Rule could CWA as ‘‘notoriously unclear’’ and jurisdictional; and (C) waters that are be natural, man-altered, or man-made, noted that the Court’s decision provided categorically excluded from jurisdiction. and do not lose their status as a only ‘‘a modest measure of relief.’’ Id. at Waters considered ‘‘jurisdictional by tributary if, for any length, there is one 133 (Alito, J., concurring) (‘‘For 40 rule’’ included (1) waters which are or more constructed breaks (such as years, Congress has done nothing to currently used, were used in the past, or bridges, culverts, pipes, or dams), or one resolve this critical ambiguity, and the may be susceptible to use in interstate or more natural breaks (such as EPA has not seen fit to promulgate a or foreign commerce, including all wetlands along the run of a stream, rule providing a clear and sufficiently waters which are subject to the ebb and debris piles, boulder fields, or a stream limited definition of the phrase [‘waters flow of the tide; (2) interstate waters, that flows underground) so long as a bed of the United States’]’’). including interstate wetlands; (3) the and banks and an ordinary high water mark could be identified upstream of In 2016, the Supreme Court in a territorial seas; (4) impoundments of the break. Id. at 37105–06. unanimous opinion rejected the Corps’ waters otherwise identified as jurisdictional; (5) tributaries of the first In the 2015 Rule, the agencies did not longstanding position that jurisdictional expressly amend the longstanding determinations issued by the Corps three categories of ‘‘jurisdictional by rule’’ waters; and (6) waters adjacent to definition of ‘‘adjacent’’ (defined as were not judicially reviewable as final ‘‘bordering, contiguous, or agency actions. Writing for the Court, a water identified in the first five categories of ‘‘jurisdictional by rule’’ neighboring’’), but the agencies added, the Chief Justice recognized that it ‘‘is for the first time, a definition of often difficult to determine whether a waters, including ‘‘wetlands, ponds, lakes, oxbows, impoundments, and ‘‘neighboring’’ that changed the particular piece of property contains meaning of ‘‘adjacent.’’ The 2015 Rule similar waters.’’ See 80 FR 37104. waters of the United States, but there are The 2015 Rule relied on a scientific defined ‘‘neighboring’’ to encompass all important consequences if it does.’’ U.S. literature review—the Connectivity waters located within 100 feet of the Army Corps of Eng’rs v. Hawkes Co., Report 12—to support exerting federal ordinary high water mark of a category 136 S. Ct. 1807, 1812 (2016). Given jurisdiction over certain waters. See 80 (1) through (5) ‘‘jurisdictional by rule’’ those important consequences, the FR 37065 (‘‘[T]he agencies interpret the water; all waters located within the 100- year floodplain of a category (1) through Court held that jurisdictional scope of ‘waters of the United States’ (5) ‘‘jurisdictional by rule’’ water and determinations are subject to immediate protected under the CWA based on the not more than 1,500 feet from the judicial review when made. Justice information and conclusions in the ordinary high water mark of such water; Kennedy authored a concurring [Connectivity] Report . . . .’’). all waters located within 1,500 feet of opinion, ‘‘not to qualify what the Court Although the agencies acknowledged the high tide line of a category (1) says but to point out that, based on the that science cannot dictate where to through (3) ‘‘jurisdictional by rule’’ Government’s representations in this draw the line of federal jurisdiction, see, water; and all waters within 1,500 feet case, the reach and systemic e.g., id. at 37060, notwithstanding that of the ordinary high water mark of the consequences of the Clean Water Act qualifier, the agencies relied on the Great Lakes. 80 FR 37105. The entire remain a cause for concern.’’ Id. at Connectivity Report extensively in water would be considered 1816–17 (referring to the ‘‘ominous establishing the 2015 Rule’s definition ‘‘neighboring’’ if any portion of it lies reach’’ of the Act). On remand, the of ‘‘waters of the United States.’’ See id. lower court found that the Corps’ at 37057 (‘‘The [Connectivity] Report 13 The 2015 Rule did not delineate jurisdiction assertion of jurisdiction over a peat farm provides much of the technical basis for specifically based on categories with established more than 90 miles from the nearest [the] rule.’’). scientific meanings such as ephemeral, intermittent, traditional navigable water based on the The 2015 Rule added new definitions and perennial waters that are based on the source of key terms such as ‘‘tributaries’’ and of the water and nature of the flow. See 80 FR ‘‘significant nexus’’ test described in the 37076 (‘‘Under the rule, flow in the tributary may agencies’ Rapanos Guidance was revised previous definitions of terms be perennial, intermittent, or ephemeral.’’). Under ‘‘arbitrary and capricious.’’ Hawkes Co. the 2015 Rule, tributaries also did not need to v. U.S. Army Corps of Eng’rs, No. 13– 12 U.S. EPA. Connectivity of Streams and possess any specific volume, frequency, or duration Wetlands to Downstream Waters: A Review and of flow, or to contribute flow to a traditional 107 ADM/TNL, 2017 U.S. Dist. LEXIS Synthesis of the Scientific Evidence (Jan. 2015) navigable water in any given year or specific time 10680 at *33 (D. Minn. Jan. 24, 2017). (EPA/600/R–14/475F). period.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22258 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

within one of these zones. See id. These or biological integrity of the nearest substantive deficiencies in the 2015 quantitative measures did not appear in category (1) through (3) ‘‘jurisdictional Rule itself. Some challengers argued the proposed rule and, as discussed in by rule’’ water was sufficient to that the 2015 Rule was too expansive, the 2019 Rule and below, the agencies establish a significant nexus. Id. Taken while others argued that it excluded too concluded that they were not together, the enumeration of the nine many waters from federal jurisdiction. sufficiently supported in the functions and the more expansive The day before the 2015 Rule’s administrative record for the final rule. consideration of ‘‘similarly situated August 28, 2015 effective date, the U.S. In addition to the six categories of waters in the region’’ in the 2015 Rule District Court for the District of North ‘‘jurisdictional by rule’’ waters, the 2015 meant that the vast majority of water Dakota preliminarily enjoined the 2015 Rule identified certain waters that features in the United States may have Rule in the 13 States that challenged the would be subject to a case-specific come within the jurisdictional purview rule in that court.18 The district court analysis to determine if they had a of the Federal government.14 found those States were ‘‘likely to ‘‘significant nexus’’ to a water that is The 2015 Rule also retained succeed’’ on the merits of their jurisdictional. 80 FR 37104–05. The first exclusions from the definition of challenge to the 2015 Rule because, category consists of five specific types of ‘‘waters of the United States’’ for prior among other reasons, ‘‘it appears likely waters in specific regions of the country: converted cropland and waste treatment that the EPA has violated its Prairie potholes, Carolina and Delmarva systems. 80 FR 37105. In addition, the Congressional grant of authority in its bays, pocosins, western vernal pools in agencies codified several exclusions promulgation of the Rule.’’ North California, and Texas coastal prairie that, in part, reflected longstanding Dakota v. EPA, 127 F. Supp. 3d 1047, wetlands. Id. at 37105. The second agency practice and added others such 1051 (D.N.D. 2015). In particular, the category consists of all waters located as ‘‘puddles’’ and ‘‘swimming pools’’ in court noted concern that the 2015 Rule’s within the 100-year floodplain of any response to concerns raised by definition of ‘‘tributary’’ ‘‘includes vast category (1) through (3) ‘‘jurisdictional stakeholders during the public comment numbers of waters that are unlikely to by rule’’ water and all waters located period on the proposed 2015 Rule. Id. have a nexus to navigable waters.’’ Id. within 4,000 feet of the high tide line or at 37096–98, 37105. at 1056. Further, the court found that ‘‘it ordinary high water mark of any Following the 2015 Rule’s appears likely the EPA failed to comply category (1) through (5) ‘‘jurisdictional publication, 31 States 15 and numerous with [Administrative Procedure Act by rule’’ water. Id. These quantitative non-state parties, including (APA)] requirements when measures did not appear in the environmental groups and groups promulgating the Rule,’’ suggesting that proposed rule and, as discussed in the representing farming, recreational, certain distance-based measures were 2019 Rule and below, the agencies forestry, and other interests, filed not a logical outgrowth of the proposal concluded that they were not complaints and petitions for review in to the 2015 Rule. Id. at 1051, 1058. No sufficiently supported in the multiple federal district 16 and party sought an interlocutory appeal. administrative record for the final 2015 appellate 17 courts challenging the 2015 The numerous petitions for review Rule. Rule. In those cases, the challengers filed in the courts of appeals were The 2015 Rule defined ‘‘significant alleged numerous procedural consolidated in the U.S. Court of nexus’’ to mean a water, including deficiencies in the development and Appeals for the Sixth Circuit. In that wetlands, that either alone or in promulgation of the 2015 Rule and litigation, State and industry petitioners combination with other similarly raised concerns about whether the 2015 situated waters in the region, 14 ‘‘[T]he vast majority of the nation’s water Rule violated the Constitution and the significantly affected the chemical, features are located within 4,000 feet of a covered CWA and whether its promulgation tributary, traditional navigable water, interstate physical, or biological integrity of a water, or territorial sea.’’ U.S. EPA and Department violated the APA and other statutes. category (1) through (3) ‘‘jurisdictional of the Army, Economic Analysis of the EPA-Army Environmental petitioners also by rule’’ water. 80 FR 37106. ‘‘For an Clean Water Rule at 11 (May 20, 2015) (‘‘2015 Rule challenged the 2015 Rule, claiming in effect to be significant, it must be more Economic Analysis’’) (Docket ID: EPA–HQ–OW– part that the 2015 Rule was too narrow 2011–0880–20866), available at https:// than speculative or insubstantial.’’ Id. www.regulations.gov/document?D=EPA-HQ-OW- because of the distance limitations and The term ‘‘in the region’’ meant ‘‘the 2011-0880-20866. other issues. On October 9, 2015, watershed that drains to the nearest’’ 15 Alabama, Alaska, Arizona, Arkansas, Colorado, approximately six weeks after the 2015 primary water. Id. This definition was Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Rule took effect in the 37 States, the different from the test articulated by the Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico District of Columbia, and U.S. agencies in their 2008 Rapanos (Environment Department and State Engineer), Guidance. That guidance interpreted North Carolina (Department of Environment and 18 Alaska, Arizona, Arkansas, Colorado, Idaho, ‘‘similarly situated’’ to include all Natural Resources), North Dakota, Ohio, Oklahoma, Missouri, Montana, Nebraska, Nevada, New wetlands (not waters) adjacent to the South Carolina, South Dakota, Tennessee, Texas, Mexico, North Dakota, South Dakota, and Utah, West Virginia, Wisconsin, and Wyoming. Wyoming. Iowa’s motion to intervene in the case same tributary. Iowa joined the legal challenge later in the process, was granted after issuance of the preliminary Under the 2015 Rule, to determine bringing the total to 32 States. Colorado, New injunction. In May 2019, the court granted motions whether a water, alone or in Mexico, and Wisconsin have since withdrawn from from Colorado and New Mexico to withdraw from combination with similarly situated litigation against the 2015 Rule. the litigation and lifted the preliminary injunction 16 U.S. District Courts for the Northern and as to Colorado and New Mexico. Order, North waters across the watershed of the Southern Districts of Georgia, District of Minnesota, Dakota v. EPA, No. 3:15–cv–00059 (D.N.D. May 14, nearest primary water, had a significant District of North Dakota, Southern District of Ohio, 2019). At the same time, the court stated that the nexus, one had to consider nine Northern District of Oklahoma, Southern District of preliminary injunction would remain in effect as to functions such as sediment trapping, Texas, District of Arizona, Northern District of a plaintiff-intervenor that represents ten counties in Florida, District of the District of Columbia, New Mexico. The agencies filed a motion seeking runoff storage, provision of life cycle Western District of Washington, Northern District of clarification of the applicability of the court’s dependent aquatic habitat, and other California, and Northern District of West Virginia. preliminary injunction to those ten counties in New functions. 80 FR 37106. A single In April 2019, an additional challenge against the Mexico. Defendants’ Motion for Clarification function performed by a water, alone or 2015 Rule was filed in the U.S. District Court for Regarding the Scope of the Court’s Preliminary the District of Oregon. Injunction, North Dakota v. EPA, No. 3:15–cv– together with similarly situated waters 17 U.S. Courts of Appeals for the Second, Fifth, 00059 (D.N.D. May 24, 2019). As of the time of in the region, that contributed Sixth, Eighth, Ninth, Tenth, Eleventh, and District signature of this final rule, that motion is pending significantly to the chemical, physical, of Columbia Circuits. before the court.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22259

Territories that were not subject to the promulgated in violation of the APA. motion, finding that the States had preliminary injunction issued by the Georgia v. Wheeler, No. 2:15–cv–079, ‘‘failed to demonstrate that they will District of North Dakota, the Sixth 2019 WL 3949922 (S.D. Ga. Aug. 21, suffer imminent and irreparable harm Circuit stayed the 2015 Rule nationwide 2019). ‘‘[I]n light of the serious defects absent an injunction.’’ See Ohio v. EPA, after concluding, among other things, identified,’’ the court retained its No. 2:15–cv–02467, 2019 WL 1368850 that State petitioners had demonstrated injunction against the 2015 Rule. Id. at (S.D. Ohio Mar. 26, 2019). The court ‘‘a substantial possibility of success on *36.20 subsequently denied the States’ motion the merits of their claims.’’ In re EPA & In September 2018, the U.S. District for reconsideration of its order denying Dep’t of Def. Final Rule, 803 F.3d 804, Court for the Southern District of Texas the preliminary injunction motion, and 807 (6th Cir. 2015) (‘‘In re EPA’’). issued a preliminary injunction against the States have since filed an appeal of On January 13, 2017, the U.S. the 2015 Rule in response to motions the court’s order in the Sixth Circuit. Supreme Court granted certiorari on the filed by the States of Texas, Louisiana, See Ohio v. EPA, No. 2:15–cv–02467, question of whether the courts of and Mississippi and several business 2019 WL 1958650 (S.D. Ohio May 2, appeals have original jurisdiction to associations, finding that enjoining the 2019); Plaintiffs’ Notice of Appeal, Ohio review challenges to the 2015 Rule. See rule would provide ‘‘much needed v. EPA, No. 2:15–cv–02467 (S.D. Ohio Nat’l Ass’n of Mfrs. v. Dep’t of Def., 137 governmental, administrative, and May 28, 2019).22 S. Ct. 811 (2017). The Sixth Circuit economic stability’’ while the rule C. Executive Order 13778 and the ‘‘Step granted petitioners’ motion to hold in undergoes judicial review. See Texas v. One’’ Rulemaking abeyance the briefing schedule in the EPA, No. 3:15–cv–162, 2018 WL litigation challenging the 2015 Rule 4518230, at *1 (S.D. Tex. Sept. 12, On February 28, 2017, the President pending a Supreme Court decision on 2018). The court observed that if it did issued Executive Order 13778 entitled the question of the court of appeals’ not temporarily enjoin the rule, ‘‘it risks ‘‘Restoring the Rule of Law, Federalism, jurisdiction. On January 22, 2018, the asking the states, their governmental and Economic Growth by Reviewing the Supreme Court, in a unanimous subdivisions, and their citizens to ‘Waters of the United States’ Rule.’’ opinion, held that the 2015 Rule is expend valuable resources and time Section 1 of the Executive Order states, subject to direct review in the district operationalizing a rule that may not ‘‘[i]t is in the national interest to ensure courts. Nat’l Ass’n of Mfrs. v. Dep’t of survive judicial review.’’ Id. In May that the Nation’s navigable waters are Def., 138 S. Ct. 617, 624 (2018). 2019, the court remanded the 2015 Rule kept free from pollution, while at the Throughout the pendency of the to the agencies on the grounds that the same time promoting economic growth, minimizing regulatory uncertainty, and Supreme Court litigation (and for a short rule violated the APA. Specifically, the showing due regard for the roles of the time thereafter), the Sixth Circuit’s court found that the rule violated the Congress and the States under the nationwide stay remained in effect. In APA’s notice and comment Constitution.’’ The Executive Order response to the Supreme Court’s requirements because: (1) The 2015 directs the EPA and the Army to review decision, on February 28, 2018, the Rule’s definition of ‘‘adjacent’’ waters the 2015 Rule for consistency with the Sixth Circuit lifted the stay and (which relied on distance-based policy outlined in Section 1 of the Order dismissed the corresponding petitions limitations) was not a ‘‘logical and to issue a proposed rule rescinding for review. See In re Dep’t of Def. & EPA outgrowth’’ of the proposal’s definition or revising the 2015 Rule as appropriate Final Rule, 713 Fed. Appx. 489 (6th Cir. of ‘‘adjacent’’ waters (which relied on and consistent with law (Section 2). The 2018). ecologic and hydrologic criteria); and (2) Executive Order also directs the Following the Supreme Court’s the agencies denied interested parties an agencies to ‘‘consider interpreting the jurisdictional ruling, district court opportunity to comment on the final term ‘navigable waters’ . . . in a manner litigation regarding the 2015 Rule version of the Connectivity Report, consistent with’’ Justice Scalia’s resumed. At this time, the 2015 Rule which served as the technical basis for plurality opinion in Rapanos v. United continues to be subject to a preliminary the final rule. See Texas v. EPA, 389 F. States, 547 U.S. 715 (2006) (Section 3). injunction issued by the District of Supp. 3d 497 (S.D. Tex. 2019).21 On March 6, 2017, the agencies North Dakota as to 12 States: Alaska, In July 2019, the U.S. District Court Arizona, Arkansas, Idaho, Iowa, published a notice of intent to review for the District of Oregon issued a the 2015 Rule and provide notice of a Missouri, Montana, Nebraska, Nevada, preliminary injunction against the 2015 North Dakota, South Dakota, and forthcoming proposed rulemaking Rule in the State of Oregon. Order, Or. consistent with the Executive Order. 82 Wyoming.19 The 2015 Rule also is Cattlemen’s Ass’n v. EPA, No. 19–00564 subject to a preliminary injunction FR 12532. Shortly thereafter, the (D. Or. July 26, 2019). As a result, the agencies announced that they would issued by the U.S. District Court for the 2015 Rule was enjoined in more than Southern District of Georgia as to 11 implement the Executive Order in a half of the States. two-step approach. On July 27, 2017, more States: Georgia, Alabama, Florida, Three additional States (Ohio, Indiana, Kansas, Kentucky, North Michigan, and Tennessee) sought a 22 Parties challenging the 2015 Rule in the U.S. Carolina, South Carolina, Utah, West preliminary injunction against the 2015 District Court for the Northern District of Virginia, and Wisconsin. Georgia v. Rule in the U.S. District Court for the Oklahoma, including the State of Oklahoma and the Pruitt, 326 F. Supp. 3d 1356, 1364 (S.D. Southern District of Ohio. In March U.S. Chamber of Commerce, unsuccessfully sought Ga. 2018). The Southern District of a motion for a preliminary injunction against the 2019, the court denied the States’ 2015 Rule and later stipulated to a voluntary Georgia subsequently issued an order dismissal of the case. See Opinion & Order, remanding the 2015 Rule to the 20 The Southern District of Georgia later denied as Oklahoma v. EPA, No. 4:15–cv–00381 (N.D. Okla. agencies, finding that the 2015 Rule moot plaintiffs’ motions for reconsideration asking May 29, 2019); Stipulation of Voluntary Dismissal, exceeded the agencies’ statutory the court to vacate, rather than remand, the 2015 Oklahoma v. EPA, No. 4:15–cv–00381 (N.D. Okla. Rule. Order, Georgia v. Wheeler, No. 2:15–cv–079 Jan. 7, 2019). Following the effective date of the authority under the CWA and was (S.D. Ga. Jan. 3, 2020). 2019 Rule, an additional motion for a preliminary 21 The Southern District of Texas later denied injunction against the 2015 Rule was denied as 19 As of the date this final rule was signed, the plaintiffs’ motions for reconsideration urging the moot in the U.S. District Court for the Western applicability and scope of the North Dakota district court to vacate, rather than remand, the 2015 Rule. District of Washington. Order, Wash. Cattlemen’s court’s preliminary injunction in New Mexico is Order, Texas v. EPA, No. 3:15–cv–00162 (S.D. Tex. Ass’n v. EPA, No. 19–00569 (W.D. Wash. Dec. 30, unclear. See supra note 18. Nov. 6, 2019). 2019).

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22260 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

the agencies published the ‘‘Definition Rule to avoid interpretations of the rule. On April 19, 2017, the agencies of ‘Waters of the United States’— CWA that push the envelope of their held an initial Federalism consultation Recodification of Pre-Existing Rules’’ constitutional and statutory authority meeting with State and local notice of proposed rulemaking (NPRM) absent a clear statement from Congress government officials as well as national (82 FR 34899) that proposed to repeal authorizing the encroachment of federal organizations representing such the 2015 Rule and recodify the jurisdiction over traditional State land- officials. The agencies also convened regulatory text that governed prior to the use planning authority. Lastly, the several additional meetings with promulgation of the 2015 Rule, agencies concluded that the 2015 Rule’s intergovernmental associations and consistent with Supreme Court distance-based limitations suffered from their members to solicit input on the decisions and informed by applicable certain procedural errors and a lack of future rule. The EPA, with participation guidance documents and longstanding adequate record support. The agencies from the Army, initiated Tribal agency practice. The agencies refer to found that these reasons, collectively consultation on April 20, 2017, under this as the ‘‘Step One’’ rule. The and individually, warranted repealing the EPA Policy on Consultation and agencies invited comment on the NPRM the 2015 Rule. Coordination with Indian Tribes. See over a 62-day period. On July 12, 2018, At this time, the regulations defining Section VI for further details on the the agencies published a supplemental the scope of federal CWA jurisdiction agencies’ consultations. The agencies notice of proposed rulemaking (SNPRM) are those portions of the CFR as they considered comments received from to clarify, supplement, and seek existed before the amendments federalism and tribal consultations as additional comment on the proposed promulgated in the 2015 Rule. The they developed this final rule. repeal and recodification. 83 FR 32227. agencies concluded that it was In addition to engaging State, tribal, The agencies invited comment on the appropriate as an interim matter to and local officials through federalism SNPRM over a 30-day period. restore the pre-existing regulations to and tribal consultations, the agencies On October 22, 2019, the agencies provide regulatory certainty as the sought feedback on the definition of published a final rule repealing the 2015 agencies considered the proposed ‘‘waters of the United States’’ from a Rule and recodifying the pre-existing revised definition of ‘‘waters of the broad audience of stakeholders, regulations as an interim matter until United States’’ and because, as including small entities (small this final rule becomes effective. 84 FR implemented, those prior regulations businesses, small organizations, and 56626. In developing the final Step One adhere more closely than the 2015 Rule small government jurisdictions), rule (referred to as the ‘‘2019 Rule’’), the to the jurisdictional limits reflected in through a series of outreach webinars agencies reviewed approximately the statute and case law. As anticipated that were held September 9, 2017, 690,000 public comments received on in the 2019 Rule, this final rule replaces through November 21, 2017, and the NPRM and approximately 80,000 the recodified pre-2015 regulations, through an in-person meeting for small comments received on the SNPRM from upon its effective date. entities on October 23, 2017. A a broad spectrum of interested parties. As of the time of signature of this final summary of these public listening In the NPRM and SNPRM the agencies rule, challenges to the agencies’ 2019 sessions is available in the docket sought comment on all aspects of the Rule are pending in six district courts, (Docket Id. No. EPA–HQ–OW–2018– NPRM, the economic analysis for the wherein both environmental and 0149–0091) for this rule. The webinars NPRM, and the SNPRM, including the industry groups have either filed new were tailored to specific sectors, repeal of the 2015 Rule, the complaints or sought to supplement including agriculture (row crop, recodification of the prior regulations, existing complaints to challenge the rule livestock, silviculture); conservation the considerations underlying the in whole or in part. See New York v. (hunters and anglers); small entities proposal and agencies’ reasons for the Wheeler, No. 19–11673 (S.D.N.Y., (small businesses, small organizations, proposal, and the agencies’ proposed complaint filed Dec. 20, 2019); Wash. small government jurisdictions); conclusions that the 2015 Rule Cattlemen’s Ass’n v. EPA, No. 2:19–cv– construction and transportation; exceeded the agencies’ authority under 00569 (W.D. Wash., supplemental environment and public advocacy the CWA. amended complaint filed Dec. 20, 2019); (including health and environmental The agencies finalized the 2019 Rule, Murray v. Wheeler, No. 1:19–cv–01498 justice); mining; energy and chemical which became effective December 23, (N.D.N.Y., complaint filed Dec. 4, 2019); industry; scientific organizations and 2019, and repealed the 2015 Rule for S.C. Coastal Conservation League v. academia; stormwater, wastewater four primary reasons. First, the agencies Wheeler, No. 2:19–cv–3006 (D.S.C., management, and drinking water concluded that the 2015 Rule did not complaint filed Oct. 23, 2019); N.M. agencies; and the general public. implement the legal limits on the scope Cattle Growers’ Ass’n v. EPA, No. 1:19– At the pre-proposal webinars and of the agencies’ authority under the cv–988 (D.N.M., complaint filed Oct. 22, meetings with stakeholders, the CWA as intended by Congress and 2019); Pierce v. EPA, No. 0:19–cv–2193 agencies provided a presentation and reflected in Supreme Court cases, (D. Minn., supplemental complaint filed sought input on specific issues, such as including Justice Kennedy’s articulation Oct. 22, 2019). potential approaches to defining the of the significant nexus test in Rapanos. phrases ‘‘relatively permanent’’ waters Second, the agencies concluded that in D. Summary of Stakeholder Outreach and ‘‘continuous surface connections’’ promulgating the 2015 Rule the agencies and the ‘‘Step Two’’ Rulemaking as articulated by the plurality opinion in failed to adequately consider and accord Following the March 6, 2017 Federal Rapanos, as well as other considerations due weight to the policy of the Congress Register notice announcing the addressing specific geomorphological in CWA section 101(b) to ‘‘recognize, agencies’ intent to review and rescind or features, exclusions and exemptions, preserve, and protect the primary revise the 2015 Rule, the agencies costs and benefits, and aquatic resource responsibilities and rights of States to initiated an effort to engage the public data that the agencies might consider in prevent, reduce, and eliminate to hear perspectives as to how the the technical analyses for a future rule. pollution’’ and ‘‘to plan the agencies could define ‘‘waters of the As part of this outreach effort, the development and use . . . of land and United States,’’ including creating a new agencies established a public water resources.’’ 33 U.S.C. 1251(b). website to provide information on the recommendations docket (Docket ID No. Third, the agencies repealed the 2015 rulemaking. See www.epa.gov/wotus- EPA–HQ–OW–2017–0480) that opened

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22261

August 28, 2017, and closed November the proposed revised definition of document is available in the docket for 28, 2017. Participant comments and ‘‘waters of the United States’’ (‘‘Step this final rule at Docket ID No. EPA– letters submitted represent a diverse Two’’ Rule) closed on April 15, 2019.23 HQ–OW–2018–0149. range of interests, positions, The agencies conducted a variety of The agencies also engaged with the suggestions, and recommendations stakeholder outreach on the proposed EPA’s Science Advisory Board (SAB) provided to the agencies. The agencies rule upon its publication in the Federal during the development of the rule on received over 6,300 recommendations Register. On February 14, 2019, the several occasions. The agencies met (available on Regulations.gov at https:// agencies held a public webcast to with the SAB prior to the proposed rule www.regulations.gov/docket?D=EPA- present key elements of the proposed and following publication of the HQ-OW-2017-0480) that were rule (see https://www.youtube.com/ proposed rule to explain the basis for considered as the agencies developed watch?v=ZZ6kFJasDhg&feature= the rule and to address the SAB’s the proposed revised definition of youtu.be), and held a public hearing in questions and initial observations. The ‘‘waters of the United States.’’ The Kansas City, Kansas, on February 27 and SAB issued a draft commentary on the agencies also considered 28, 2019, to hear feedback from proposed rule on December 31, 2019, recommendations as to how the individuals from regulated industry and held a public meeting on the matter agencies should define ‘‘waters of the sectors, environmental and conservation on January 17, 2020. The SAB’s draft United States’’ that were submitted in organizations, State agencies, tribal commentary asserted that the proposed public comments on the agencies’ governments, and private citizens. The rule did not fully incorporate the proposed ‘‘Step One’’ rule (82 FR 34899, agencies also continued engagement Connectivity Report and offers no July 27, 2017) and the July 2018 SNPRM with States and Tribes through a series comparable body of peer reviewed (83 FR 32227, July 12, 2018). of in-person meetings with State and evidence to support this departure. As The agencies continued their pre- tribal representatives in Kansas City, the agencies made clear in the proposed proposal engagement with States and Kansas; Atlanta, Georgia; Albuquerque, rule preamble and explain in greater Tribes via additional webinars and in- New Mexico; and Seattle, Washington detail in this notice, the agencies used person meetings. On March 8 and 9, during the public comment period for the Connectivity Report to inform 2018, the agencies held an in-person the proposed rule. During these certain aspects of the definition of State Co-Regulators Workshop with meetings, the agencies provided an ‘‘waters of the United States,’’ but representatives from nine States overview of the proposed rule, recognize that science cannot dictate (Arizona, Arkansas, Florida, Iowa, responded to clarifying questions from where to draw the line between Federal Maryland, Minnesota, Oregon, participants, discussed implementation and State waters, as this is a legal Pennsylvania, and Wyoming) and considerations, and heard feedback on question that must be answered based convened a subsequent in-person the agencies’ interest in developing on the overall framework and construct meeting on March 22, 2018, with geospatial datasets of jurisdictional of the CWA. The SAB’s draft also representatives from all States at the waters. A transcript of the public addresses the absence of ‘‘ground water spring meeting of the Environmental hearing and related materials and protection;’’ the exclusion of ‘‘irrigation Council of the States. The agencies also summaries of the State and tribal canals’’ from regulatory jurisdiction; the held an in-person Tribal Co-Regulators meetings can be found in the docket for exclusion of ‘‘adjacent wetlands that do Workshop on March 6 and 7, 2018, with the final rule. At the request of not abut or have a direct hydrologic representatives from 20 tribes. These individual Tribes, the agencies also surface connection to otherwise meetings were intended to seek continued to hold staff-level and leader- jurisdictional waters;’’ and the absence technical input as the agencies to-leader meetings with individual of ‘‘long term clarity’’ as a result of the developed the proposed rule. The Tribes. asserted lack of scientific basis for the agencies also sought pre-proposal input In developing this final rule, the proposed rule. from Tribes through national and agencies reviewed and considered The relevant comments raised by the regional tribal meetings, including approximately 620,000 comments SAB were also raised by public through listening sessions at the Tribal received on the proposed rule from a commenters throughout the rulemaking Land and Environment Forum (August broad spectrum of interested parties. process, and as a result, have been 16, 2017 and August 15, 2018) and the Commenters provided a wide range of addressed by the agencies in the final National Congress of American Indians feedback on the various aspects of the rule, supporting documents, and Annual Convention (October 24, 2018). proposal, including the legal basis for throughout this notice. In brief, On December 12, 2018, the agencies the proposed rule, the agencies’ however, the agencies note that the final signed the proposed rule to revise the proposed treatment of categories of rule is consistent with the agencies’ definition of ‘‘waters of the United jurisdictional waters and those features longstanding position that ‘‘waters of States,’’ as the second step of the that would not be jurisdictional, the the United States’’ do not include comprehensive two-step process economic analysis and resource and groundwater; that the agencies do not consistent with Executive Order 13778. programmatic assessment for the use the term ‘‘irrigation canals’’ in the The proposal was published on proposed rule, and the agencies’ final rule; that ‘‘irrigation ditches’’ February 14, 2019. 84 FR 4154. The considerations for developing geospatial constructed in uplands and ‘‘irrigation agencies proposed to interpret the term datasets of jurisdictional waters in return flows’’ generally have been not ‘‘waters of the United States’’ to partnership with other federal agencies, been subject to CWA regulatory encompass: Traditional navigable States, and Tribes. The agencies discuss requirements; and that the agencies waters, including the territorial seas; comments received and their responses have expanded jurisdiction over certain tributaries that contribute perennial or in the applicable sections of this final ‘‘adjacent wetlands’’ compared to the intermittent flow to such waters; certain rule. A complete response to comments proposal to better incorporate common ditches; certain lakes and ponds; principles from the Rapanos plurality impoundments of otherwise 23 The pre-publication of the proposed rule was and concurring opinions, that the final jurisdictional waters; and wetlands published on EPA’s website on December 12, 2018, rule strikes a better balance between the approximately 60 days prior to its publication in adjacent to other jurisdictional waters. the Federal Register and the date the formal public objective and policy in CWA sections The 60-day public comment period for comment period began. 101(a) and 101(b), respectively; and that

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22262 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

the final rule is consistent with the text, ‘‘restore and maintain the chemical, under the Commerce Clause. Gibbons v. structure, legislative history, and physical, and biological integrity of the Ogden, 22 U.S. (9 Wheat.) 1 (1824). In applicable Supreme Court guidance. A Nation’s waters,’’ 33 U.S.C. 1251(a), United States v. Lopez, the Supreme memorandum summarizing the while implementing the specific Court explained that the Commerce agencies’ interactions with the SAB and ‘‘policy’’ directives from Congress to, Clause gives Congress the authority to the SAB’s draft commentary are among other things, ‘‘recognize, regulate in three areas: The ‘‘channels of available in the docket for this final preserve, and protect the primary interstate commerce,’’ the rule. responsibilities and rights of States to ‘‘instrumentalities of interstate prevent, reduce, and eliminate commerce,’’ and those additional E. Overview of Legal Construct for the pollution’’ and ‘‘to plan the activities having ‘‘a substantial relation Final Rule development and use . . . of land and to interstate commerce.’’ 514 U.S. 549, As the preceding summary of the water resources.’’ Id. at 1251(b); see also 558–59 (1995). Some commenters stated statutory and regulatory history makes Webster’s II, New Riverside University that Congress’ authority over ‘‘waters of clear, the central term delineating the Dictionary (1994) (defining ‘‘policy’’ as the United States’’ is not tethered to federal geographic scope of authority a ‘‘plan or course of action, as of a navigable channels of interstate under the CWA—‘‘waters of the United government[,] designed to influence and commerce, but is also derived from its States’’—has been the subject of debate determine decisions and actions;’’ an authority over the ‘‘instrumentalities of and litigation for many years. The ‘‘objective’’ is ‘‘something worked interstate commerce’’ and activities that agencies are promulgating a regulation toward or aspired to: Goal’’).24 The ‘‘substantially affect’’ interstate to define ‘‘waters of the United States’’ agencies therefore recognize a commerce. See id. The agencies disagree adhering to Constitutional and statutory distinction between the specific word with these comments. The Supreme limitations, the policies and objective of choices of Congress, including the need Court made clear in SWANCC that the the CWA, and case law. The revised to develop regulatory and non- term ‘‘navigable’’ indicates ‘‘what definition will allow the regulatory regulatory programs that aim to Congress had in mind as its authority agencies and the regulated community accomplish the goals of the Act while for enacting the CWA: Its traditional to protect navigable waters from implementing the specific policy jurisdiction over waters that were or had pollution while providing an directives of Congress.25 To do so, the been navigable in fact or which could implementable approach to determining agencies must determine what Congress reasonably be so made.’’ 531 U.S. 159, regulatory jurisdiction under the CWA. had in mind when it defined ‘‘navigable 172 (2001). The Court further explained This subsection summarizes the legal waters’’ in 1972 as ‘‘the waters of the that nothing in the legislative history of principles that inform the agencies’ final United States.’’ the Act provides any indication that rule, and the following section (Section Congress’ authority to regulate ‘‘Congress intended to exert anything III) describes how the agencies are navigable waters under the CWA more than its commerce power over applying those legal principles to derives from its power to regulate the navigation.’’ Id. at 168 n.3. The Supreme support the final revised definition of ‘‘channels of interstate commerce’’ Court, however, has recognized that ‘‘waters of the United States.’’ Congress intended ‘‘to exercise its 24 The legislative history of the CWA further powers under the Commerce clause to 1. Statutory Framework illuminates the distinction between the terms ‘‘policy’’ and ‘‘objective,’’ or ‘‘goal.’’ As Congress regulate at least some waters that would To determine the scope of executive not be deemed ‘navigable’ under the branch authority under the CWA, the drafted the 1972 CWA amendments, the Senate bill set the ‘‘no-discharge of pollutants into the classical understanding of that term.’’ agencies begin with the text of the navigable water by 1985’’ provision as a policy Riverside Bayview, 474 U.S. at 133; see statute. The objective of the CWA, as whereas the House bill set it as a goal. The Act was also SWANCC, 531 U.S. at 167. established by Congress, is ‘‘to restore ultimately passed with the ‘‘no-discharge by 1985’’ provision established as a goal. See 33 U.S.C The classical understanding of the and maintain the chemical, physical, 1251(a)(1). During the House’s consideration of the term ‘‘navigable’’ was first articulated by and biological integrity of the Nation’s Conference Report, Representative Robert E. Jones, the Supreme Court in The Daniel Ball: waters.’’ 33 U.S.C. 1251(a). As discussed Jr. captured the policy versus goal distinction in in Section II.B, in order to meet that section 101(a)(1) as follows: ‘‘The objective of this Those rivers must be regarded as public legislation is to restore and preserve for the future navigable rivers in law which are navigable objective, Congress declared two the integrity of our Nation’s waters. The bill sets in fact. And they are navigable in fact when national water quality goals and forth as a national goal the complete elimination of they are used, or are susceptible of being established several key policies that all discharges into our navigable waters by 1985, used, in their ordinary condition, as direct the work of the agencies. but . . . the conference report states clearly that highways of commerce, over which trade and achieving the 1985 target date is a goal, not a Congress also envisioned a major role national policy. As such, it serves as a focal point travel are or may be conducted in the for the States in implementing the CWA, for long-range planning, and for research and customary modes of trade and travel on carefully balancing the traditional development in water pollution control technology water. And they constitute navigable waters power of States to regulate land and .... While it is our hope that we can succeed in of the United States within the meaning of eliminating all discharge into our waters by 1985, the acts of Congress, in contradistinction water resources within their borders without unreasonable impact on the national life, from the navigable waters of the States, when with the need for national water quality we recognized in this report that too many they form in their ordinary condition by regulation. imponderables exist, some still beyond our themselves, or by uniting with other waters, The agencies have developed horizons, to prescribe this goal today as a legal a continued highway over which commerce requirement.’’ 118 Cong. Rec. H. 33749 (daily ed. regulatory and non-regulatory programs October 4, 1972). is or may be carried on with other States or designed to ensure that the full statute 25 See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, foreign countries in the customary modes in is implemented as Congress intended. 567 U.S. 519, 544 (2012) (‘‘Where Congress uses which such commerce is conducted by water. See, e.g., Hibbs v. Winn, 542 U.S. 88, certain language in one part of a statute and 77 U.S. (10 Wall.) 557, 563 (1871). different language in another, it is generally 101 (2004) (‘‘A statute should be presumed that Congress acts intentionally.’’); Subsequently, this traditional test was construed so that effect is given to all its Russello v. United States, 464 U.S. 16, 23 (1983) expanded to include waters that had provisions, so that no part will be (‘‘[Where] Congress includes particular language in been used in the past for interstate inoperative or superfluous, void or one section of a statute but omits it in another commerce, see Economy Light & Power section of the same Act, it is generally presumed insignificant.’’). This includes pursuing that Congress acts intentionally and purposely in Co. v. United States, 256 U.S. 113, 123 the overall ‘‘objective’’ of the CWA to the disparate inclusion or exclusion.’’) (1921), and waters that are susceptible

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22263

for use with reasonable improvement, limited the scope of waters that could be water ends and land begins. Our common see United States v. Appalachian Elec. assumed by a State or Tribe by requiring experience tells us that this is often no easy Power Co., 311 U.S. 377, 407–10 (1940). the Corps to retain permitting authority task: The transition from water to solid By the time the 1972 CWA over RHA waters (as identified by the ground is not necessarily or even typically an amendments were enacted, the Supreme test outlined in The Daniel Ball) plus abrupt one. Rather, between open waters and dry land may lie shallows, marshes, Court had held that Congress’ authority wetlands adjacent to those waters, , swamps, bogs—in short, a huge over the channels of interstate minus historic-use-only waters. See 33 array of areas that are not wholly aquatic but commerce was not limited to regulation U.S.C. 1344(g)(1).27 This suggests that nevertheless fall far short of being dry land. of the channels themselves but could Congress had in mind a broader scope Where on this continuum to find the limit of extend to activities necessary to protect of waters subject to CWA jurisdiction ‘‘waters’’ is far from obvious. the channels. See Oklahoma ex rel. than waters traditionally understood as Id. at 132 (emphasis added). Within this Phillips v. Guy F. Atkinson Co., 313 U.S. navigable. See SWANCC, 531 U.S. at statement, the Supreme Court identifies 508, 523 (1941) (‘‘Congress may exercise 171; Riverside Bayview, 474 U.S. at 138 a basic principle for adjacent wetlands: its control over the non-navigable n.11. Thus, Congress intended to assert The limits of jurisdiction lie within the stretches of a river in order to preserve federal authority over more than just ‘‘continuum’’ or ‘‘transition’’ ‘‘between or promote commerce on the navigable waters traditionally understood as open waters and dry land.’’ Observing portions.’’). The Supreme Court had also navigable, and Congress rooted that that Congress intended the CWA ‘‘to clarified that Congress could regulate authority in ‘‘its commerce power over regulate at least some waters that would waterways that formed a part of a navigation.’’ SWANCC, 531 U.S. at 168 not be deemed ‘navigable,’ ’’ the Court channel of interstate commerce, even if n.3. However, there must be a limit to held that it is ‘‘a permissible they are not themselves navigable or do that authority and to what water is interpretation of the Act’’ to conclude not cross state boundaries. See Utah v. subject to federal jurisdiction. How the that ‘‘a wetland that actually abuts on a United States, 403 U.S. 9, 11 (1971). agencies should exercise that authority navigable waterway’’ falls within the These developments were discussed has been the subject of dispute for ‘‘definition of ‘waters of the United during the legislative process leading up decades, but the Supreme Court on States.’ ’’ Id. at 133, 135. Thus, a to the passage of the 1972 CWA three occasions has analyzed the issue wetland that abuts a water traditionally amendments, and certain members and provided some instructional understood as navigable is subject to referred to the scope of the amendments guidance for the agencies to consider in CWA jurisdiction because it is as encompassing waterways that serve developing this final rule. ‘‘inseparably bound up with the ‘waters’ as a ‘‘link in the chain’’ of interstate 2. U.S. Supreme Court Precedent of the United States.’’ Id. at 134. ‘‘This commerce as it flows through various holds true even for wetlands that are not a. Adjacent Wetlands channels of transportation, such as the result of flooding or permeation by railroads and highways. See, e.g., 118 In Riverside Bayview, the Supreme water having its source in adjacent Cong. Rec. 33756–57 (1972) (statement Court considered the Corps’ assertion of bodies of open water.’’ Id. of Rep. Dingell); 118 Cong. Rec. 33699 jurisdiction over ‘‘low-lying, marshy The Supreme Court also noted that (Oct. 4, 1972) (statement of Sen. land’’ immediately abutting a water the agencies can establish categories of 26 Muskie). Other references suggest that traditionally understood as navigable on jurisdiction for adjacent wetlands. See congressional committees at least the grounds that it was an ‘‘adjacent id. at 135 n.9. It made clear that these contemplated applying the ‘‘control wetland’’ within the meaning of the categories could be reasonable if the requirements’’ of the Act ‘‘to the Corps’ then-existing regulations. 474 Corps concludes that ‘‘in the majority of navigable waters, portions thereof, and U.S. at 124. The Court addressed the cases, adjacent wetlands have their tributaries.’’ S. Rep. No. 92–414, at question of whether non-navigable significant effects on water quality and 77 (1971). Some commenters on this wetlands may be regulated as waters of the aquatic ecosystem.’’ Id. A definition rulemaking stated that Congress’ the United States on the basis that they of ‘‘waters of the United States’’ ‘‘can authority under the CWA is limited to are ‘‘adjacent to’’ navigable-in-fact stand’’ even if it potentially sweeps in waters that actually transport waters and ‘‘inseparably bound up individual wetlands that are not commerce, not their tributaries or with’’ them because of their ‘‘significant sufficiently ‘‘intertwined with the adjacent wetlands, and that this effects on water quality and the aquatic ecosystem of adjacent waterways’’ to limitation on CWA jurisdiction would ecosystem.’’ See id. at 131–35 & n.9. warrant protection. Id. In such cases, if fully preserve the authority of States to In determining whether to give the regulating entity determines that a address pollution. The agencies disagree deference to the Corps’ assertion of particular wetland lacks importance to with these commenters based on the jurisdiction over adjacent wetlands, the the aquatic environment, or its Supreme Court’s holdings and the Court acknowledged the difficulty in importance is outweighed by other legislative history of the 1972 determining where federal jurisdiction factors, that wetland could be developed amendments discussed above, as well as ends, noting that the line is somewhere through the permit issuance process. Id. the text of the 1977 amendments to the between open water and dry land: Some commenters noted that the CWA. Specifically, in 1977, when In determining the limits of its power to definition of ‘‘adjacent wetlands’’ that Congress authorized State assumption regulate discharges under the Act, the Corps the Supreme Court unanimously upheld over the section 404 dredged or fill must necessarily choose some point at which in Riverside Bayview included material permitting program, Congress categories of wetlands that would not be 27 For a detailed discussion of the legislative per se ‘‘adjacent’’ under the proposed 26 The agencies recognize that individual member history supporting the enactment of CWA section statements are not a substitute for full congressional 404(g), see Final Report of the Assumable Waters rule, including all ‘‘[w]etlands separated intent, but they do help provide context for issues Subcommittee (May 2017), App. F., available at from other waters of the United States that were discussed during the legislative debates. https://www.epa.gov/sites/production/files/2017- by man-made dikes or barriers, natural For a detailed discussion of the legislative history 06/documents/awsubcommitteefinalreprort_05- river berms, beach dunes and the like.’’ of the 1972 CWA amendments, see Albrecht & 2017_tag508_05312017_508.pdf < Caution-https:// Nickelsburg, Could SWANCC Be Right? A New Look www.epa.gov/sites/production/files/2017-06/ 51 FR 41251 (Nov. 13, 1986). These at the Legislative History of the Clean Water Act, documents/awsubcommitteefinalreprort_05-2017_ commenters stated that the Court 32 ELR 11042 (Sept. 2002). tag508_05312017_508.pdf. deferred to the Corps’ judgment that

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22264 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

wetlands may affect the water quality of later, however, the Supreme Court state power.’’ Id. at 173; see also Will v. jurisdictional waterbodies even if the analyzed a similar question in the Michigan Dep’t of State Police, 491 U.S. waterbodies do not inundate the context of an abandoned sand and 58, 65 (1989) (‘‘[I]f Congress intends to wetlands. See Riverside Bayview, 474 gravel pit located some distance from a alter the ‘usual constitutional balance U.S. at 133–35. The proposed rule traditional navigable water, with between the States and the Federal included wetlands as jurisdictional excavation trenches that ponded—some Government,’ it must make its intention absent inundation by another water. See only seasonally—and served as habitat to do so ‘unmistakably clear in the e.g., 84 FR 4187 (‘‘The proposed for migratory birds. 531 U.S. at 162–63. language of the statute.’ ’’ (quoting definition of ‘adjacent wetlands’ would The Supreme Court rejected the Atascadero State Hospital v. Scanlon, not require surface water exchange government’s stated rationale for 473 U.S. 234, 242 (1985))); Gregory v. between wetlands and the jurisdictional asserting jurisdiction over such Ashcroft, 501 U.S. 452, 460–61 (1991) waters they abut to create the ‘‘nonnavigable, isolated, intrastate (‘‘[The] plain statement rule . . . jurisdictional link[.]’’). As explained in waters’’ as outside the scope of CWA acknowledg[es] that the States retain Section III.G., the agencies have jurisdiction. Id. at 171–72. In doing so, substantial sovereign powers under our considered public comments in light of the Supreme Court noted that Riverside constitutional scheme, powers with the statutory text and other relevant Bayview upheld ‘‘jurisdiction over which Congress does not readily considerations and are finalizing a wetlands that actually abutted on a interfere.’’). ‘‘Rather than expressing a definition of ‘‘adjacent wetlands’’ that is navigable waterway’’ because the desire to readjust the federal-state more encompassing than the proposal. wetlands were ‘‘inseparably bound up balance in this manner, Congress chose In any event, the agencies note that a with the ‘waters’ of the United States.’’ [in the CWA] to ‘recognize, preserve, Court’s deference to an agency’s Id. at 167.28 As summarized by the and protect the primary responsibilities particular interpretation of a statute SWANCC majority: and rights of States . . . to plan the does not foreclose alternative It was the significant nexus between the development and use . . . of land and interpretations. The Supreme Court has wetlands and ‘‘navigable waters’’ that water resources . . . .’’ SWANCC, 531 held that ‘‘a court’s choice of one informed our reading of the CWA in U.S. at 174 (quoting 33 U.S.C. 1251(b)). reasonable reading of an ambiguous Riverside Bayview Homes. Indeed, we did not The Court found no clear statement statute does not preclude an ‘‘express any opinion’’ on the ‘‘question of from Congress that it had intended to authority of the Corps to regulate discharges implementing agency from later permit federal encroachment on of fill material into wetlands that are not traditional State power and construed adopting a different reasonable adjacent to bodies of open water . . . .’’ In interpretation.’’ United States v. Eurodif order to rule for [the Corps] here, we would the CWA to avoid the significant S.A., 555 U.S. 305, 315 (2009). This have to hold that the jurisdiction of the Corps constitutional questions related to the principle follows from Chevron, U.S.A., extends to ponds that are not adjacent to scope of federal authority authorized 29 Inc. v. Natural Resources Defense open water. But we conclude that the text of therein. Id. Council, Inc., 467 U.S. 837 (1984), the statute will not allow this. Historically, the Federal government which ‘‘established a ‘presumption that Id. at 167–68 (internal citations and has interpreted and applied the Congress, when it left ambiguity in a emphasis omitted). SWANCC decision more narrowly, statute meant for implementation by an The Court also rejected the argument focusing on the specific holding in the agency, understood that the ambiguity that the use of the abandoned ponds by case as rejecting federal jurisdiction would be resolved, first and foremost, migratory birds fell within the power of over the isolated ponds and mudflats at issue in that case based on their use by by the agency, and desired the agency Congress to regulate activities that in the migratory birds. By contrast, members of (rather than the courts) to possess aggregate have a substantial effect on the regulated community, certain States whatever degree of discretion the interstate commerce, or that the CWA and other interested stakeholders have ambiguity allows.’ ’’ Nat’l Cable & regulated the use of the ponds as a Telecommunications Ass’n v. Brand X municipal landfill because such use was 29 The agencies note that during oral argument in Internet Servs., 545 U.S. 967, 982 (2005) commercial in nature. Id. at 173. Such SWANCC, Justice Kennedy stated, ‘‘[T]his case, it (quoting Smiley v. Citibank, 517 U.S. arguments, the Court noted, raised seems to me, does point up the problem that 735, 740–41 (1996)). Moreover, an ‘‘significant constitutional questions.’’ petitioner’s counsel raised quoting from page 1 of ‘‘initial agency interpretation is not Id. ‘‘Where an administrative the blue brief, ‘it is the primary responsibility of the states to eliminate pollution and to plan instantly carved in stone.’’ Chevron, 467 interpretation of a statute invokes the development and use of land’ .... It seems to me U.S. at 863; see also Encino Motorcars, outer limits of Congress’ power, we that this illustrates that the way in which the Corps LLC v. Navarro, 136 S. Ct. 2117, 2125 expect a clear indication that Congress has promulgated its regulation departs from the intended that result.’’ Id. at 172–73 design of the statute.’’ Transcript of Oral Argument (2016) (‘‘[A]gencies are free to change at 40, Solid Waste Agency of Northern Cook County their existing policies as long as they (‘‘Congress does not casually authorize v. U.S. Army Corps of Engineers, 531 U.S. 159 provide a reasoned explanation for the administrative agencies to interpret a (2001) (No. 99–1178) (emphasis added). And change.’’) (citations omitted). Consistent statute to push the limit of several years later, during oral argument in congressional authority.’’). This is Rapanos, after the U.S. Solicitor General stated, with the APA and applicable case law, ‘‘[W]hat Congress recognized in 1972 is that they in this final rule the agencies have particularly true ‘‘where the had to regulate beyond traditional navigable provided ample justification for a administrative interpretation alters the waters,’’ Justice Kennedy stated, ‘‘But the Congress change in interpretation of the CWA federal-state framework by permitting in 1972 also . . . said it’s a statement of policy to federal encroachment upon a traditional reserve to the States the power and the concerning the scope of jurisdiction responsibility to plan land use and water resources. over waters and wetlands, including any And under your definition, I just see that we’re changes from their prior interpretations. 28 At oral argument during Riverside Bayview, the giving no scope at all to that clear statement of the attorney representing the United States congressional policy.’’ Transcript of Oral Argument The Supreme Court in Riverside characterized the wetland at issue as ‘‘in fact an at 58, Rapanos v. United States and Carabell v. Bayview declined to decide whether adjacent wetland, adjacent—by adjacent, I mean it United States, 547 U.S. 715 (2006) (Nos. 04–1034, wetlands that are not adjacent to is immediately next to, abuts, adjoins, borders, 04–1384). Although the agencies do not give navigable waters could also be regulated whatever other adjective you might want to use, independent weight to these statements at oral navigable waters of the United States.’’ Transcript argument, the statements are consistent with the by the agencies. See 474 U.S. at 124 n.2 of Oral Argument at 16, United States v. Riverside agencies’ interpretation of the CWA and applicable and 131 n.8. In SWANCC a few years Bayview Homes, 474 U.S. 121 (1985) (No. 84–701). Supreme Court decisions.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22265

argued that SWANCC stands for a rule, in contrast to the 2015 Rule, avoids water connected to traditional interstate broader proposition based on key pressing against the outer limits of the navigable waters); and second, that the federalism and separation of powers agencies’ authority under the Commerce wetland has a continuous surface principles.30 In the preamble to the Clause and Supreme Court case law and connection with that water, making it proposed rule, the agencies solicited recognizes the limiting principles difficult to determine where the ‘water’ comment as to the proper scope and articulated by the SWANCC decision. ends and the ‘wetland’ begins.’’ Id. interpretation of SWANCC. 84 FR 4165. This final rule would not allow for the (alteration in original). Some commenters argued that the exercise of jurisdiction over waters In reaching the adjacency component SWANCC decision should be similar to those at issue in SWANCC. of the two-part analysis, the plurality interpreted narrowly to apply only to Several years after SWANCC, the interpreted Riverside Bayview and the the facts presented in that case; other Supreme Court considered the concept Court’s subsequent SWANCC decision commenters argued that the agencies of adjacency in consolidated cases characterizing Riverside Bayview as should apply the reasoning of the arising out of the Sixth Circuit. See authorizing jurisdiction over wetlands SWANCC decision broadly, in a manner Rapanos v. United States, 547 U.S. 715 that physically abutted traditional similar to how the agencies had (2006). In one case, the Corps had navigable waters. Id. at 740–42. The previously interpreted the reasoning of determined that wetlands on three plurality focused on the ‘‘inherent Justice Kennedy’s concurring opinion in separate sites were subject to CWA ambiguity’’ described in Riverside Rapanos to extend beyond wetlands to jurisdiction because they were adjacent Bayview in determining where on the tributaries and other waters, for to ditches or man-made drains that continuum between open waters and example. The agencies agree with eventually connected to traditional dry land the scope of federal commenters that the interpretation and navigable waters several miles away jurisdiction should end. Id. at 740. It implementation of these Supreme Court through other ditches, drains, creeks, was ‘‘the inherent difficulties of decisions within agency regulatory and rivers. Id. at 719–20, 729. In another defining precise bounds to regulable programs should be consistent, and that case, the Corps had asserted jurisdiction waters,’’ id. at 741 n.10, according to the the reasoning in the SWANCC decision over a wetland separated from a man- plurality, that prompted the Court in stands for key principles related to made drainage ditch by a four-foot-wide Riverside Bayview to defer to the Corps’ federalism and the balancing of the man-made berm. Id. at 730. The ditch inclusion of adjacent wetlands as traditional power of States to regulate emptied into another ditch, which then ‘‘waters’’ subject to CWA jurisdiction land and water resources within their connected to a creek, and eventually based on proximity. Id. at 741 (‘‘When borders with the need for national water connected to Lake St. Clair,31 a we characterized the holding of quality regulation. traditional navigable water, Riverside Bayview in SWANCC, we The agencies recently repealed the approximately a mile from the parcel at referred to the close connection between 2015 Rule and explained in the issue. The berm was largely or entirely waters and the wetlands they gradually preamble of that action that the 2015 impermeable but may have permitted blend into: ‘It was the significant nexus Rule had improperly allowed for the occasional overflow from the wetland to between the wetlands and ‘navigable application of the significant nexus the ditch. Id. The Court, in a fractured waters’ that informed our reading of the standard in a manner that would result opinion, vacated and remanded the CWA in Riverside Bayview Homes.’ ’’); in the assertion of jurisdiction over Sixth Circuit’s decision upholding the see also Riverside Bayview, 474 U.S. at waters that the Court deemed non- Corps’ asserted jurisdiction over the 134 (‘‘For this reason, the landward jurisdictional in SWANCC. 84 FR four wetlands at issue, with Justice limit of Federal jurisdiction under 56626–27. By allowing federal Scalia writing for the plurality and Section 404 must include any adjacent jurisdiction to reach certain isolated Justice Kennedy concurring in the wetlands that form the border of or are ponds, such as those at issue in judgment but on alternative grounds. Id. in reasonable proximity to other waters SWANCC, and certain physically remote at 757 (Scalia, J., plurality); id. at 787 of the United States, as these wetlands wetlands that ‘‘do not implicate the (Kennedy, J., concurring in the are part of this aquatic system.’’ (quoting boundary-drawing problem of Riverside judgment). 42 FR 37128 (July 19, 1977))). The Bayview,’’ the agencies concluded that The plurality determined that CWA plurality also noted that ‘‘SWANCC the 2015 Rule asserted federal control jurisdiction extended to only adjacent rejected the notion that the ecological over some features that ‘‘lack the ‘‘wetlands with a continuous surface considerations upon which the Corps necessary connection to covered waters connection to bodies that are ‘waters of relied in Riverside Bayview ...... described as a ‘significant nexus’ in the United States’ in their own right, so provided an independent basis for SWANCC[.]’’ Rapanos, 547 U.S. at 742 that there is no clear demarcation including entities like ‘wetlands’ (or (Scalia, J., plurality); see also Hawkes, between ‘waters’ and wetlands.’’ ‘ephemeral streams’) within the phrase 136 S. Ct. at 1817 (Kennedy, J., Rapanos, 547 U.S. at 742 (Scalia, J., ‘the waters of the United States.’ concurring in the judgment) (‘‘[T]he plurality). The plurality then concluded SWANCC found such ecological reach and systemic consequences of the that ‘‘establishing . . . wetlands . . . considerations irrelevant to the question Clean Water Act remain a cause for covered by the Act requires two whether physically isolated waters concern.’’ (emphasis added)). This final findings: First, that the adjacent channel come within the Corps’ jurisdiction.’’ contains a ‘wate[r] of the United States,’ Rapanos, 547 U.S. at 741–42 (emphasis 30 The agencies also recognize that Justice (i.e., a relatively permanent body of in original). Stevens, writing for himself and three other Justices Justice Kennedy disagreed with the in dissent in SWANCC, interpreted the SWANCC 31 Lake St. Clair is a Rivers and Harbors Act plurality’s conclusion that adjacency majority opinion to apply beyond the Migratory section 10 water. See p. 7: https:// requires a ‘‘continuous surface Bird Rule and the specific ponds at issue in www.lre.usace.army.mil/Portals/69/docs/ SWANCC. His dissent stated that the decision regulatory/PDFs/GENSEC10.pdf. It is also described connection’’ to covered waters. Id. at ‘‘invalidates the 1986 migratory bird regulation as in Justice Kennedy’s opinion in Rapanos as ‘‘a 430- 772 (Kennedy, J., concurring in the well as the Corps’ assertion of jurisdiction over all square mile lake located between Michigan and judgment). In reading the phrase waters except for actually navigable waters, their Canada that is popular with boating and fishing and ‘‘continuous surface connection’’ to tributaries, and wetlands adjacent to each.’’ 531 produces some 48 percent of the sport fish caught U.S. at 176–77 (Stevens, J., dissenting) (emphasis in the Great Lakes[.]’’ Rapanos, 547 U.S. at 764 mean a continuous ‘‘surface-water added). (Kennedy, J., concurring in the judgment). connection,’’ id. at 776 (emphasis

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22266 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

added), and interpreting the plurality’s Because wetlands with a physically omitted). It further states that the standard to include a ‘‘surface-water- remote hydrologic connection do not wetlands at issue in Riverside Bayview connection requirement,’’ id. at 774 raise the same boundary-drawing were ‘‘adjacent to [a] navigable-in-fact (emphasis added), Justice Kennedy concerns presented by actually abutting waterway[ ]’’ while the ‘‘ponds and stated that ‘‘when a surface-water wetlands, the plurality determined that mudflats’’ considered in SWANCC connection is lacking, the plurality the ‘‘inherent ambiguity in defining ‘‘were isolated in the sense of being forecloses jurisdiction over wetlands where water ends and abutting unconnected to other waters covered by that abut navigable-in-fact waters—even (‘adjacent’) wetlands begin’’ upon which the Act.’’ Id. at 765–66. ‘‘Taken together, though such navigable waters were Riverside Bayview rests does not apply these cases establish that in some traditionally subject to federal to such features. Id. at 742 (‘‘Wetlands instances, as exemplified by Riverside authority.’’ Id. at 776. He noted that the with only an intermittent, physically Bayview, the connection between a Riverside Bayview Court ‘‘deemed it remote hydrologic connection to ‘waters nonnavigable water or wetland and a irrelevant whether ‘the moisture of the United States’ do not implicate navigable water may be so close, or creating the wetlands . . . find[s] its the boundary-drawing problem of potentially so close, that the Corps may source in the adjacent bodies of water.’’ Riverside Bayview, and thus lack the deem the water or wetland a ‘navigable Id. at 772 (internal citations omitted); necessary connection to covered waters water’ under the Act. In other instances, see also Riverside Bayview, 474 U.S. at that we described as a ‘significant as exemplified by SWANCC, there may 134 (‘‘[A]djacent wetlands may be nexus’ in SWANCC[.]’’). The plurality be little or no connection. Absent a defined as waters under the Act. This supported this position by referring to significant nexus, jurisdiction under the holds true even for wetlands that are not the Court’s treatment of certain isolated Act is lacking.’’ Id. at 767. the result of flooding or permeation by waters in SWANCC as non- According to Justice Kennedy, water having its source in adjacent jurisdictional. Rapanos, 547 U.S. at whereas the isolated ponds and bodies of open water.’’). 741–42; see also id. at 726 (‘‘We held mudflats in SWANCC lacked a The plurality did not directly address that ‘nonnavigable, isolated, intrastate ‘‘significant nexus’’ to navigable waters, the precise distinction raised by Justice waters—which, unlike the wetlands at it is the ‘‘conclusive standard for Kennedy regarding his interpretation of issue in Riverside Bayview, did not jurisdiction’’ based on ‘‘a reasonable the plurality’s ‘‘continuous surface ‘actually abu[t] on a navigable inference of ecological interconnection’’ connection’’ requirement to mean a waterway,’—were not included as between adjacent wetlands and continuous ‘‘surface-water connection.’’ ‘waters of the United States.’ ’’) (internal navigable-in-fact waters that allows for The plurality did note in response, citations omitted). It interpreted the their categorical inclusion as ‘‘waters of however, that the ‘‘Riverside Bayview reasoning of SWANCC to exclude the United States.’’ Rapanos, 547 U.S. at opinion required’’ a ‘‘continuous isolated waters. The plurality also found 780 (‘‘[T]he assertion of jurisdiction for physical connection,’’ Rapanos, 547 ‘‘no support for the inclusion of those wetlands [adjacent to navigable- U.S. at 751 n.13 (Scalia, J., plurality) physically unconnected wetlands as in-fact waters] is sustainable under the (emphasis added), and focused on covered ‘waters’ ’’ based on Riverside Act by showing adjacency alone.’’). evaluating adjacency between a ‘‘water’’ Bayview’s treatment of the Corps’ Justice Kennedy surmised that it may be and a wetland ‘‘in the sense of definition of adjacent. Id. at 747; see that the same rationale ‘‘without any possessing a continuous surface also id. at 746 (‘‘[T]he Corps’ definition inquiry beyond adjacency . . . could connection that creates the boundary- of ‘adjacent’ . . . has been extended apply equally to wetlands adjacent to drawing problem we addressed in beyond reason . . . .’’). certain major tributaries.’’ Id. He noted Riverside Bayview.’’ Id. at 757. The Although ultimately concurring in the that the Corps could establish by plurality also noted that its standard judgment, Justice Kennedy focused on regulation categories of tributaries based includes a ‘‘physical-connection the ‘‘significant nexus’’ between on volume of flow, proximity to requirement,’’ not hydrological, between adjacent wetlands and traditional navigable waters, or other relevant wetlands and covered waters. Id. at 751 navigable waters as the basis for factors that ‘‘are significant enough that n.13 (emphasis added). In other words, determining whether a wetland is a wetlands adjacent to them are likely, in the plurality appeared to be more water subject to CWA jurisdiction. He the majority of cases, to perform focused on the abutting nature rather quotes the SWANCC decision, which important functions for an aquatic than the source of water creating the explains that ‘‘[i]t was the significant system incorporating navigable waters.’’ wetlands at issue in Riverside Bayview nexus between the wetlands and Id. at 780–81. However, ‘‘[t]he Corps’ to describe the legal constructs ‘navigable waters’ that informed our existing standard for tributaries’’ applicable to adjacent wetlands. See id. reading of the [Act] in Riverside provided Justice Kennedy ‘‘no such at 747; see also Webster’s II, New Bayview Homes.’’ SWANCC, 531 U.S. at assurance’’ to infer the categorical Riverside University Dictionary (1994) 167. But Justice Kennedy also existence of a requisite nexus between (defining ‘‘abut’’ to mean ‘‘to border on’’ interpreted the reasoning of SWANCC to waters traditionally understood as or ‘‘to touch at one end or side of exclude certain isolated waters. His navigable and wetlands adjacent to something’’). The plurality agreed with opinion notes that: ‘‘Because such a Justice Kennedy and the Riverside nexus [in that case] was lacking with nonnavigable tributaries. Id. at 781. That Bayview Court that ‘‘[a]s long as the respect to isolated ponds, the Court held is because: wetland is ‘adjacent’ to covered waters that the plain text of the statute did not [T]he breadth of the [tributary] standard— . . . its creation vel non by inundation permit the Corps’ action.’’ Rapanos, 547 which seems to leave wide room for is irrelevant.’’ Rapanos, 547 U.S. at 751 U.S. at 767 (Kennedy, J., concurring in regulation of drains, ditches, and streams n.13 (Scalia, J., plurality).32 the judgment) (internal citation remote from any navigable-in-fact water and carrying only minor water volumes towards it—precludes its adoption as the 32 In the Rapanos Guidance, the agencies between the wetland and the tributary.’’). The determinative measure of whether adjacent interpreted the plurality’s ‘‘continuous surface agencies continue to endorse that interpretation. In connection’’ as not requiring a continuous surface Rapanos, both Justice Scalia and Justice Kennedy wetlands are likely to play an important role water connection. See, e.g., Rapanos Guidance at 7 recognized that a wetland can be adjacent to a in the integrity of an aquatic system n.28 (‘‘A continuous surface connection does not jurisdictional water absent inundation from that comprising navigable waters as traditionally require surface water to be continuously present water. understood. Indeed, in many cases, wetlands

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22267

adjacent to tributaries covered by this interpretation of Justice Kennedy’s addressed in either Riverside Bayview or standard might appear little more related to concurring opinion, arguing that his SWANCC, nor were tributaries the navigable-in-fact waters than were the ‘‘significant nexus’’ test provides an waters at issue in Rapanos. Yet while isolated ponds held to fall beyond the Act’s independent basis for establishing the focus of Rapanos was on whether scope in SWANCC. jurisdiction over certain waters of the the Corps could regulate wetlands Rapanos, 547 U.S. at 781–82. United States. And rather than limiting adjacent to nonnavigable tributaries far To avoid this outcome, Justice the application of Justice Kennedy’s removed from navigable-in-fact waters, Kennedy stated that, absent opinion to the specific facts and the plurality and concurring opinions development of a more specific wetlands at issue in that case, similar to provide some guidance as to the scope regulation and categorical inclusion of their treatment of the SWANCC of CWA coverage of tributaries to waters wetlands adjacent to ‘‘certain major’’ or decision, the agencies previously have more traditionally understood as even ‘‘minor’’ tributaries as was applied Justice Kennedy’s reasoning navigable. established in Riverside Bayview, id. at more broadly to include, for example, The plurality and Justice Kennedy 780–81, the Corps ‘‘must establish a the application of the significant nexus both recognized the jurisdictional scope significant nexus on a case-by-case basis test to determining jurisdiction over of the CWA is not restricted to when it seeks to regulate wetlands based tributaries, not just wetlands. Many traditional navigable waters. Rapanos, on adjacency to nonnavigable courts have deferred to this position, 547 U.S. at 731 (Scalia, J., plurality) tributaries. Given the potential and some courts rely exclusively on (‘‘[T]he Act’s term ‘navigable waters’ overbreadth of the Corps’ regulations, Justice Kennedy’s significant nexus test includes something more than this showing is necessary to avoid while other courts have held that traditional navigable waters.’’); id. at unreasonable applications of the jurisdiction can be established under 767 (Kennedy, J., concurring in the statute.’’ Id. at 782. Justice Kennedy either the plurality or concurring judgment) (‘‘Congress intended to stated that adjacent ‘‘wetlands possess opinions. The agencies’ final rule, as regulate at least some waters that are not the requisite nexus, and thus come explained in Section III, is informed in navigable in the traditional sense.’’). within the statutory phrase ‘navigable several key aspects by Justice Kennedy’s Both also agreed that federal authority waters,’ if the wetlands, either alone or opinion, but the agencies now under the Act has limits. See id. at 731– in combination with similarly situated appropriately recognize some of the 32 (Scalia, J., plurality) (‘‘ ‘[T]he waters lands in the region, significantly affect limiting principles articulated within of the United States’ . . . cannot bear the chemical, physical, and biological his concurring opinion. The agencies the expansive meaning that the Corps integrity of other covered waters more also recognize that the reasoning in would give it.’’); id. at 778–79 (Kennedy, readily understood as ‘navigable.’ ’’ Id. SWANCC contains more instruction J., concurring in the judgment) (‘‘The at 780. ‘‘Where an adequate nexus is than the agencies have historically deference owed to the Corps’ established for a particular wetland, it acknowledged. interpretation of the statute does not may be permissible, as a matter of In summary, although the standards extend’’ to ‘‘wetlands’’ which ‘‘lie administrative convenience or that the Rapanos plurality and Justice alongside a ditch or drain, however necessity, to presume covered status for Kennedy established are not identical, remote or insubstantial, that eventually other comparable wetlands in the and each standard excludes some waters may flow into traditional navigable region.’’ Id. at 782. In establishing this and wetlands that the other standard waters.’’). significant nexus test, Justice Kennedy does not, the standards contain With respect to tributaries relied, in part, on the overall objective substantial similarities. The plurality specifically, both the plurality and of the CWA to ‘‘restore and maintain the and Justice Kennedy agreed in principle Justice Kennedy focused in part on a chemical, physical and biological that the determination must be made tributary’s contribution of flow to and integrity of the Nation’s waters.’’ Id. at using a basic two-step approach that connection with traditional navigable 779 (quoting 33 U.S.C. 1251(a)). considers (1) the connection of the waters. The plurality would include as However, Justice Kennedy also wetland to the tributary; and (2) the ‘‘waters of the United States’’ ‘‘only acknowledged that ‘‘environmental status of the tributary with respect to relatively permanent, standing or concerns provide no reason to disregard downstream traditional navigable flowing bodies of water’’ and would limits in the statutory text.’’ Id. at 778. waters. The plurality and Justice define such ‘‘waters’’ as including With respect to wetlands adjacent to Kennedy also agreed that the connection streams, rivers, oceans, lakes and other nonnavigable tributaries, Justice between the wetland and the tributary bodies of waters that form geographical Kennedy therefore determined that must be close. The plurality referred to features, noting that all such ‘‘terms ‘‘mere adjacency . . . is insufficient[.] A that connection as a ‘‘continuous connote continuously present, fixed more specific inquiry, based on the surface connection’’ or ‘‘continuous bodies of water.’’ Rapanos, 547 U.S. at significant-nexus standard, is . . . physical connection,’’ as demonstrated 732–33, 739 (Scalia, J., plurality). The necessary.’’ Id. at 786. Justice Kennedy in Riverside Bayview. Id. at 742, 751 plurality would have also required noted that under the Corps’ n.13. Justice Kennedy recognized that relatively permanent waters to be interpretation at issue in the case, which ‘‘the connection between a connected to traditional navigable did not require adjacent wetlands to nonnavigable water or wetland and a waters in order to be jurisdictional. See possess a significant nexus with navigable water may be so close, or id. at 742 (describing a ‘‘ ‘wate[r] of the navigable waters, federal regulation potentially so close, that the Corps may United States’ ’’ as ‘‘i.e., a relatively would be permitted ‘‘whenever deem the water or wetland a ‘navigable permanent body of water connected to wetlands lie alongside a ditch or drain, water’ under the Act.’’ Id. at 767. The traditional interstate navigable waters’’) however remote or insubstantial, that second part of their common analytical (emphasis added). The plurality would eventually may flow into traditional framework is addressed in the next also have excluded ephemeral flows and navigable waters. The deference owed to section. related features, stating ‘‘[n]one of these the Corps’ interpretation of the statute terms encompasses transitory puddles does not extend so far.’’ Id. at 778–79. b. Tributaries or ephemeral flows of water.’’ Id. at 733; Since the Rapanos decision, the As some commenters noted, the see also id. at 734 (‘‘In applying the Federal government has adopted a broad definition of ‘‘tributary’’ was not definition to ‘ephemeral streams,’ . . .

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22268 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

the Corps has stretched the term ‘waters existing treatment of tributaries raised ‘‘through directional sheet flow during of the United States’ beyond parody. significant jurisdictional concerns. For storm events,’’ and wetlands ‘‘connected The plain language of the statute simply example, the plurality was concerned to the navigable water by flooding, on does not authorize this ‘Land Is Waters’ about the Corps’ broad interpretation of average, once every 100 years[.]’’ approach to federal jurisdiction.’’). tributaries. See Rapanos, 547 U.S. at 738 Rapanos, 547 U.S. at 728 (internal Justice Kennedy likely would exclude (Scalia, J., plurality) (‘‘Even if the term quotations and citations omitted). some streams considered jurisdictional ‘the waters of the United States’ were Justice Kennedy noted that ‘‘in some under the plurality’s opinion, but he ambiguous as applied to channels that instances, as exemplified by Riverside may include some that would be sometimes host ephemeral flows of Bayview, the connection between a excluded by the plurality. See id. at 769 water (which it is not), we would expect nonnavigable water . . . and a navigable (Kennedy, J., concurring in the a clearer statement from Congress to water may be so close, or potentially so judgment) (noting that under the authorize an agency theory of close, that the Corps may deem the plurality’s test, ‘‘[t]he merest trickle, if jurisdiction that presses the envelope of water . . . a ‘navigable water’ under the continuous, would count as a ‘water’ constitutional validity.’’). And Justice Act. In other instances, as exemplified subject to federal regulation, while Kennedy objected to the categorical by SWANCC, there may be little or no torrents thundering at irregular intervals assertion of jurisdiction over wetlands connection.’’ Id. at. 767 (Kennedy, J., through otherwise dry channels would adjacent to waters deemed tributaries concurring in the judgment). Justice not’’). under the Corps’ then-existing standard, Kennedy also stated that ‘‘mere Both the plurality and Justice ‘‘which seems to leave wide room for hydrologic connection should not Kennedy would have included some regulation of drains, ditches, and suffice in all cases; the connection may seasonal or intermittent streams as streams remote from any navigable-in- be too insubstantial for the hydrologic waters of the United States. Rapanos, fact water and carrying only minor linkage to establish the required nexus 547 U.S. at 732 n.5, 733 (Scalia, J., water volumes towards it.’’ Id. at 781 with navigable waters as traditionally plurality); id. at 769 (Kennedy, J., (Kennedy, J., concurring in the understood.’’ Id. at 784–85. concurring in the judgment). The judgment); see also id. at 781–82 (‘‘[I]n Some commenters agreed that aspects plurality noted, for example, that its many cases wetlands adjacent to of the plurality’s and Justice Kennedy’s reference to ‘‘relatively permanent’’ tributaries covered by this standard opinions share similarities regarding the waters did ‘‘not necessarily exclude might appear little more related to limits of federal jurisdiction under the streams, rivers, or lakes that might dry navigable-in-fact waters than were the CWA, while other commenters up in extraordinary circumstances, such isolated ponds held to fall beyond the disagreed that the opinions share as drought,’’ or ‘‘seasonal rivers, which Act’s scope in SWANCC.’’). important commonalities. These contain continuous flow during some commenters asserted that the opinions months of the year but no flow during Beyond tributaries, the plurality and have disparate rationales that cannot be dry months.’’ Id. at 732 n.5 (emphasis in Justice Kennedy also offered some reconciled. While the agencies original). Neither the plurality nor insight regarding CWA jurisdiction with acknowledge that the plurality and Justice Kennedy, however, defined with respect to other relatively permanent Justice Kennedy viewed the question of precision where to draw the line. See, bodies of water, such as lakes and federal CWA jurisdiction differently, as e.g., id. (Scalia, J., plurality) (‘‘[W]e have ponds, and their connection to discussed above, the agencies find that no occasion in this litigation to decide traditional navigable waters. The there are sufficient commonalities exactly when the drying-up of a stream plurality describes a ‘‘water of the between these opinions to help instruct bed is continuous and frequent enough United States’’ as ‘‘a relatively the agencies on where to draw the line to disqualify the channel as a ‘wate[r] of permanent body of water connected to between Federal and State waters. the United States.’ It suffices for present traditional interstate navigable 3. Principles and Considerations purposes that channels containing waters[.]’’ Id. at 742 (emphasis added). permanent flow are plainly within the The plurality did not specify, however, As discussed in the previous sections, definition, and that . . . streams whose what would constitute a sufficient a few important principles emerge that flow is ‘[c]oming and going at intervals connection between such relatively can serve as the basis for the agencies’ . . . [b]roken, fitful,’ . . . or ‘existing permanent waters and downstream final regulatory definition. As a only, or no longer than, a day; diurnal traditional navigable waters. When threshold matter, the power conferred . . . short-lived,’ . . . are not.’’) considered in the context of Justice on the agencies under the CWA to (internal citations omitted). The Scalia’s entire opinion, the plurality regulate the waters of the United States plurality provided, however, that signaled concern that certain types of is grounded in Congress’ commerce ‘‘navigable waters’’ must have ‘‘at a bare connections are likely insufficient to power over navigation. The agencies can minimum, the ordinary presence of maintain jurisdiction; for instance, by choose to regulate beyond waters more water,’’ id. at 734, and Justice Kennedy characterizing an ‘‘expansive definition traditionally understood as navigable, noted that the Corps can identify by of ‘tributaries’ ’’ as one that includes including some tributaries and regulation categories of tributaries based ‘‘dry arroyos connected to remote waters relatively permanent bodies of water on ‘‘their volume of flow (either through the flow of groundwater over connected to those traditional navigable annually or on average), their proximity ‘centuries,’ ’’ id. at 725–26 (internal waters, but the agencies must provide a to navigable waters, or other relevant citations omitted), and describing reasonable basis grounded in the considerations’’ that ‘‘are significant potential federal control over ‘‘irrigation language and structure of the Act for enough that wetlands adjacent to them ditches and drains that intermittently determining the extent of jurisdiction. are likely, in the majority of cases, to connect to covered waters’’ as The agencies can also choose to regulate perform important functions for an ‘‘sweeping.’’ Id. at 726–27. In addition wetlands adjacent to covered waters aquatic system incorporating navigable to ‘‘tributaries,’’ the plurality noted that beyond those traditionally understood waters,’’ id. at 780–81 (Kennedy, J., the Corps and lower courts have as navigable, if the wetlands are closely concurring in the judgment). ‘‘define[d] ‘adjacent’ wetlands broadly’’ connected to those waters, such as in Both the plurality and Justice to include wetlands ‘‘hydrologically the transitional zone between open Kennedy also agreed that the Corps’ connected’’ ‘‘to covered waters’’ waters and dry land. The Supreme

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22269

Court’s opinion in SWANCC, however, research, nonpoint source, groundwater, State and tribal authority. The CWA’s calls into question the agencies’ and watershed planning programs that longstanding regulatory permitting authority to regulate nonnavigable, were intended by Congress to assist the programs, coupled with the controls isolated, intrastate waters that lack a States in controlling pollution in the that States, Tribes, and local entities sufficient connection to traditional nation’s waters, not just its navigable choose to exercise over their land and navigable waters. The decision counsels waters. These non-regulatory sections of water resources, will continue to that the agencies should avoid the CWA reveal Congress’ intent to address the discharge of pollutants into regulatory interpretations of the CWA restore and maintain the integrity of the waters of the United States, and the that raise constitutional questions nation’s waters using federal assistance CWA’s non-regulatory measures will regarding the scope of their statutory to support State, tribal, and local continue to address pollution of the authority. Finally, the agencies can partnerships to control pollution of the nation’s waters generally. These regulate certain waters by category, nation’s waters in addition to a federal programs and measures collectively which could improve regulatory regulatory prohibition on the discharge pursue the objective of restoring and predictability and certainty and ease of pollutants to its navigable waters. See maintaining the chemical, physical, and administrative burdens while still e.g., id. at 745 (‘‘It is not clear that the biological integrity of the nation’s effectuating the purposes of the Act. state and local conservation efforts that waters. In developing an appropriate the CWA explicitly calls for, see 33 Some commenters agreed with the regulatory framework for the final rule, U.S.C. 1251(b), are in any way statements in the preamble to the the agencies recognize and respect the inadequate for the goal of proposed rule that the CWA preserves a primary responsibilities and rights of preservation.’’). Regulating all of the significant and primary role for the States to regulate their land and water nation’s waters using the Act’s federal States in implementing various aspects resources as reflected in CWA section regulatory mechanisms would call into of the CWA, reflecting an intent to 101(b). 33 U.S.C. 1251(b), see also id. at question the need for the more holistic balance the States’ traditional powers to 1370. The oft-quoted objective of the planning provisions of the Act and the regulate land and water resources CWA to ‘‘restore and maintain the State partnerships they entail. within their borders with the need for chemical, physical, and biological Therefore, by recognizing the national water quality regulation. Other integrity of the Nation’s waters,’’ id. at distinctions between the nation’s waters commenters stated that section 101(b) is 1251(a), must be implemented in a and its navigable waters and between primarily concerned with State manner consistent with Congress’ policy the overall objective and goals of the implementation of water pollution directives to the agencies. The Supreme CWA and the specific policy directives control measures, not the jurisdictional Court long ago recognized the from Congress, the agencies can fully reach of the Act, and that a lawful and distinction between federal waters implement the entire structure of the protective definition of jurisdictional traditionally understood as navigable Act while respecting the specific word waters under the Act does not disturb or and waters ‘‘subject to the control of the choices of Congress. See, e.g., Bailey, undermine the States’ exercise of States.’’ The Daniel Ball, 77 U.S. (10 516 U.S. at 146; Nat’l Fed’n of Indep. primary authority. Rather, they Wall.) 557, 564–65 (1870). Over a Bus., 567 U.S. at 544. expressed concern that the rule would century later, the Supreme Court in harm the States in exercising their SWANCC reaffirmed the State’s Some commenters agreed with the authority as envisioned by section ‘‘traditional and primary power over interpretation that the CWA establishes 101(b) by, for example, increasing the land and water use.’’ SWANCC, 531 a comprehensive scheme to achieve the financial and administrative burden on U.S. at 174; accord Rapanos, 547 U.S. Act’s objective through a combination of States to protect their waters. at 738 (Scalia, J., plurality). While CWA non-regulatory programs and grants for The agencies interpret the policy of section 101(b) does not specifically all of the nation’s waters, and a more Congress, set forth in section 101(b), as identify Tribes, the policy of preserving targeted federal permitting program for relevant to all aspects of the States’ sovereign authority over land discharges of pollutants to the subset of implementation of the CWA, both and water use is equally relevant to the nation’s waters identified as waters implementing federally-established ensuring the primary authority of Tribes of the United States. Other commenters standards as well as the scope of waters to address pollution and plan the expressed concern that the proposed subject to such standards and regulatory development and use of tribal land and rule would not further the CWA’s programs. When promulgating the 2015 water resources. This final rule objective to ‘‘restore and maintain the Rule, the agencies endorsed a narrower recognizes and preserves the autonomy chemical, physical, and biological view of Congress’ policy in section of Tribes just as it recognizes and integrity of the Nation’s waters,’’ 33 101(b) as limited to implementation of preserves the authority of States. U.S.C. 1251(a), because fewer waters the Act’s regulatory programs by States Ensuring that States and Tribes retain would be jurisdictional under the and State authority to impose authority over their land and water proposal than were regulated under the conditions on ‘‘waters of the United resources, reflecting the policy in 2015 Rule or the pre-2015 regulatory States’’ that are more stringent than the section 101(b), helps carry out the regime. The agencies disagree with conditions that the agencies impose overall objective of the CWA and these commenters. The agencies are under the Act. In the final Step One ensures that the agencies are giving full mindful that ‘‘no legislation pursues its Rule, the agencies concluded that such effect and consideration to the entire purposes at all costs,’’ Rodriguez v. a view was improperly narrow and structure and function of the Act. See, United States, 480 U.S. 522, 525–26 failed to place sufficient weight on the e.g., Rapanos, 547 U.S. at 755–56 (1987), including the CWA. The CWA’s policy of Congress in section 101(b). See (Scalia, J., plurality) (‘‘[C]lean water is objective must be balanced with the 84 FR 56654. Having considered the not the only purpose of the statute. So policy of Congress to preserve the public comments submitted in this is the preservation of primary state primary State responsibility for ordinary rulemaking, the agencies remain of the responsibility for ordinary land-use land-use decisions. The purpose of this view that nothing in section 101(b) decisions. 33 U.S.C. 1251(b).’’) rulemaking is to establish the boundary suggests that it is limited to (emphasis in original). That includes the between regulated ‘‘waters of the United implementing federal regulatory dozens of non-regulatory grant, States’’ and the waters subject solely to programs or imposing conditions on

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22270 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

‘‘waters of the United States’’ that are waters covered by the Act without a between those waters subject to federal more stringent than the conditions that permit.’’ Hawkes, 136 S. Ct. at 1812; see requirements under the CWA and those the agencies impose under the Act. also Sackett, 132 S. Ct. at 1374–75 waters that States and Tribes are free to Indeed, the overarching policy (Alito, J., concurring) (‘‘[T]he manage under their independent statement of 101(b) ‘‘to recognize, combination of the uncertain reach of authorities. The agencies are preserve, and protect the primary the Clean Water Act and the draconian establishing this line-drawing based responsibilities and rights of States to penalties imposed for the sort of primarily on their interpretation of their prevent, reduce, and eliminate violations alleged in this case still authority under the Constitution and the pollution, to plan the development and leaves most property owners with little language, structure, and legislative use . . . of land and water resources,’’ practical alternative but to dance to the history of the CWA, as articulated in was included in the Act in 1972; the EPA’s tune.’’). As the Chief Justice decisions by the Supreme Court. additional 101(b) policy statement ‘‘that observed in Hawkes, ‘‘[i]t is often Some commenters viewed the the States . . . implement the permit difficult to determine whether a proposed rule as complicated and, programs under sections 402 and 404 of particular piece of property contains because one of the agencies’ goals in this Act’’ was not added until the 1977 waters of the United States, but there are proposing a new definition was to amendments. 91 Stat. 1567, 1575 Public important consequences if it does.’’ 136 provide simplicity and clarity, stated Law 95–217 (1977); see also Rapanos, S. Ct. at 1812; see also id. at 1816–17 that the proposal failed to meet that goal 547 U.S. at 737 (Scalia, J., plurality) (Kennedy, J., concurring in the and is therefore arbitrary and (‘‘Thus, the policy [to recognize, judgment) (stating that ‘‘the reach and capricious. The agencies disagree with preserve, and protect the primary systemic consequences of the Clean these commenters’ view that the responsibilities and rights of States to Water Act remain a cause for concern’’ proposed rule would not have provided prevent, reduce, and eliminate and ‘‘continue[] to raise troubling necessary clarity. Notwithstanding this pollution, to plan the development and questions regarding the Government’s disagreement, the agencies have made use . . . of land and water resources] power to cast doubt on the full use and certain enhancements to the final rule plainly referred to something beyond enjoyment of private property that will further promote clarity and the subsequently added state throughout the Nation’’). Given the provide fair notice to the public. As a administration program of 33 U.S.C. significant civil and criminal penalties threshold matter, the agencies for the 1344(g)–(l).’’) (citations omitted). The associated with the CWA, the agencies first time have streamlined the agencies acknowledge that States seek to promote regulatory certainty and regulatory text to four simple categories without comprehensive pre-existing to provide fair and predictable notice of of jurisdictional waters, provided clear programs that seek to regulate waters no the limits of federal jurisdiction. A exclusions for many water features that longer jurisdictional under this final number of commenters expressed traditionally have not been regulated, rule may incur new costs and support for the emphasis on the and defined the operative terms used in administrative burdens, and they importance of fair notice in the the regulatory text. And while the discuss those costs in the Economic proposed rule and cited in support categories of jurisdiction in the final Analysis for the final rule. Such Justice Gorsuch’s concurring opinion in rule must be applied to specific facts to obligations are inherent in the exercise Sessions v. Dimaya, 138 S. Ct. 1204, determine jurisdiction, the final rule of the States’ authority that Congress 1223–25 (2018) (characterizing fair does not include a regulatory category of case-specific jurisdiction as the 2015 embedded in the CWA. States are free notice as possibly the most fundamental Rule did in paragraphs (a)(7) and (a)(8). to evaluate the most effective means of of the customary protections provided As such, the agencies believe the final addressing their waters and may weigh by the Constitution’s guarantee of due rule will be clearer than either the 2015 the costs and benefits of doing so. process, and stating that vague laws are The agencies also heard from Tribes Rule or the pre-existing regulatory an exercise of ‘‘arbitrary power . . . that because the agencies generally regime restored by the 2019 Rule. leaving the people in the dark about implement CWA programs on tribal However, clarity as an end in itself is what the law demands and allowing lands, the proposed rule would affect not the primary or fundamental basis for prosecutors and courts to make it up’’). Tribes differently than it would affect the final rule. most States. Some Tribes have received The agencies interpret their authority Section III of this notice describes in Treatment as a State status to administer to include promulgation of a new detail the fundamental bases for this CWA programs, and other Tribes have regulatory definition of ‘‘waters of the rule as the text and structure of the established tribal water programs under United States,’’ as directed by Executive CWA and the constitutional boundaries tribal law or have the authority to Order 13778, so long as the new within which Congress enacted the establish such tribal water programs. definition is authorized under the law CWA. The final rule is securely Other Tribes may currently lack the and based on a reasoned explanation. grounded in the text of the CWA and is capacity to create a tribal water FCC v. Fox Television Stations, Inc., 556 supported by legislative history and program, to administer a program, or to U.S. 502, 515 (2009) (‘‘Fox’’). A revised Supreme Court case law. As to expand programs that currently exist, rulemaking based on a change in simplicity and clarity, the agencies and may rely on the Federal government interpretation of statutory authorities is acknowledge that field work may for enforcement of water quality well within federal agencies’ discretion. frequently be necessary to verify violations. See Chapter III of the Nat’l Ass’n of Home Builders v. EPA, whether a feature is a water of the Resource and Programmatic Assessment 682 F.3d 1032, 1038 (D.C. Cir. 2012) United States; however, replacing the (RPA) for the final rule. The final rule (citing Fox, 556 U.S. at 514–15). Under multi-factored case-specific significant preserves tribal authority to choose this rule, the agencies do not view the nexus analysis with categorically whether or not to regulate waters that definition of ‘‘waters of the United jurisdictional and categorically are not covered under the CWA. States’’ as conclusively determining excluded waters in the final rule The agencies are also cognizant that which of the nation’s waters warrant provides clarifying value for members of the ‘‘Clean Water Act imposes environmental protection and which do the regulated community. The substantial criminal and civil penalties not; rather, the agencies interpret the application of a clear test for for discharging any pollutant into definition as drawing the boundary categorically covered and excluded

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22271

waters, as presented in this final rule, is evapotranspiration, and other climatic ‘‘afforded generous leeway by the inherently less complicated than a variables on the flow of surface water in courts.’’ Rapanos, 547 U.S. at 758 complex multi-factored significant a tributary and its contribution of flow (Roberts, C.J., concurring) (emphasis in nexus test that must be applied on a to downstream waters and the original); see also id. (‘‘Rather than case-by-case basis to countless waters hydrologic surface connection between refining its view of its authority in light and wetlands across the nation. a jurisdictional water and an adjacent of our decisions in SWANCC, . . . the Some commenters stated that the wetland. In other words, the agencies Corps chose to adhere to its essentially agencies’ desire to facilitate will evaluate the flow regime of a stream boundless view of the scope of its implementation of the regulatory and the connectedness of a wetland power. The upshot today is another definition does not override the within the context of what is typical for defeat for the agency.’’). In this rule, as agencies’ legal obligations under the that water or wetland to avoid making described in detail in Section III, the CWA, including fulfillment of the goals erroneous jurisdictional determinations agencies are reasonably interpreting the of the CWA. The agencies agree in at times that may be too wet or too dry scope of their authority under the Act in principle. The agencies have to be considered ‘‘normal.’’ The a manner that is consistent with its text, determined that requiring surface water agencies also looked to science to structure, legislative history, and flow in a typical year from relatively inform other aspects of the final rule; for applicable Supreme Court guidance. permanent bodies of water to traditional example, in defining the terms This final rule presents a unifying legal navigable waters and wetlands adjacent ‘‘perennial,’’ ‘‘intermittent,’’ and theory for federal jurisdiction over those to such waters as a core requirement of ‘‘ephemeral’’; in establishing that waters and wetlands that maintain a the rule is the most faithful way of wetlands separated from jurisdictional sufficient surface water connection to interpreting the Federal government’s waters only by a natural berm, bank, traditional navigable waters or the CWA authority over a water. The dune, or similar natural feature are territorial seas. ‘‘inseparably bound up with’’ and agencies carefully considered the F. Summary of Final Rule as Compared adjacent to those waters; and in comments received on the proposal and to the 1986 Regulations Recodified in accounting for the connectivity have made certain revisions to the the 2019 Rule and the 2015 Rule gradient 33 regulatory text that provide further in deciding how to apply key principles from the Riverside Bayview, The agencies are finalizing a clarity without sacrificing or SWANCC, and Rapanos decisions. definition of ‘‘waters of the United undermining the fundamental legal and The agencies consider the priorities States’’ that they consider to be superior constitutional bases for the rule. A they have outlined to be reasonable, to the 1986 regulations re-codified in number of commenters stated that the especially in light of the long history of the 2019 Rule, as well as to the 2015 proposed rule failed to incorporate controversy and confusion over the Rule. The agencies are revising previous scientific and ecological principles into definition of ‘‘waters of the United regulatory definitions of this term to the definition of ‘‘waters of the United States.’’ In concurring with the Rapanos distinguish between waters that are States.’’ The agencies disagree. While plurality opinion, Chief Justice Roberts ‘‘waters of the United States’’ subject to science informs the agencies’ stated that ‘‘[g]iven the broad, somewhat Federal regulation under the CWA and interpretation of the definition of ambiguous, but clearly limiting terms waters or features that are subject to ‘‘waters of the United States,’’ science Congress employed in the Clean Water exclusive State or tribal jurisdiction, cannot dictate where to draw the line Act, the [agencies] would have enjoyed consistent with the scope of jurisdiction between Federal and State or tribal plenty of room to operate in developing authorized under the CWA and the waters, as those are legal distinctions some notion of an outer bound to the direction in the Act to both ‘‘restore and that have been established within the reach of their authority’’ under the maintain the chemical, physical, and overall framework and construct of the CWA, and that the agencies’ biological integrity of the Nation’s CWA. The definition of ‘‘waters of the interpretations under the Act are waters,’’ 33 U.S.C. 1251(a), and United States’’ must be grounded in a ‘‘recognize, preserve, and protect the legal analysis of the limits on CWA 33 As part of the 2015 Rule, EPA’s SAB stressed primary responsibilities and rights of jurisdiction reflected in the statute and that ‘‘the EPA should recognize that there is a States to . . . plan the development and Supreme Court case law. The agencies gradient of connectivity.’’ See Letter to Gina use (including restoration, preservation, McCarthy. SAB Review of the Draft EPA Report are precluded from exceeding their Connectivity of Streams and Wetlands to and enhancement) of land and water authority under the CWA to achieve Downstream Waters: A Review and Synthesis of the resources . . . .’’ Id. at 1251(b). The specific scientific, policy, or other Scientific Evidence at 3 (Oct. 17, 2014) (‘‘SAB Supreme Court has recognized that new outcomes. Within the legal limits of the Review’’). The SAB recommended that ‘‘the interpretation of connectivity be revised to reflect administrations may reconsider the CWA, the agencies have looked to a gradient approach that recognizes variation in the policies of their predecessors so long as scientific principles to inform frequency, duration, magnitude, predictability, and they provide a reasonable basis for the implementation of the final rule as the consequences of physical, chemical, and biological change in approach. Nat’l Ass’n of connections.’’ Id. at 2 (emphasis added); see also agencies differentiate between waters of Connectivity Report at 1–18 (‘‘Variation in the Home Builders, 682 F.3d at 1043 the United States and non-jurisdictional degree of connectivity is critical to the integrity and (quoting Motor Vehicle Mfrs. Ass’n v. waters and features. For example, and as sustainability of downstream waters, and can be State Farm Mut. Auto. Ins. Co., 463 U.S. discussed further in Section III.A.1, in described in terms of the frequency, duration, 29, 59 (1983) (Rehnquist, J., concurring magnitude, timing, and rate of change of fluxes to requiring the use of a ‘‘typical year’’ and biological exchanges with downstream waters. in part and dissenting in part)). The scenario to assess the surface water These descriptors characterize the range over which agencies intend that the revised connection between a particular water streams and wetlands vary and shift along interpretation of the federal regulatory or wetland and a downstream water connectivity gradients and the probable effects of different types (hydrologic, chemical, biological) scope of the CWA will resolve identified in paragraph (a)(1), (2), or (3) and degrees of connectivity over time.... longstanding confusion over broad and (generally referred to as ‘‘paragraph Ultimately, differences in the frequency, duration, unclear definitions of ‘‘waters of the (a)(1) through (3) waters’’ or ‘‘a magnitude, timing, and rate of change of physical, United States.’’ paragraph (a)(1) through (3) water’’ in chemical, and biological connections describe This final rule is more consistent with different positions along the connectivity gradient this notice), the agencies recognize the and produce different types of downstream the agencies’ constitutional and influence of precipitation, effects.’’). statutory authority than the 2015 Rule,

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22272 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

for the reasons discussed in the Rule, defended the procedural steps the considering public comments on this preamble to the 2019 Rule as well as the agencies took to develop and support final rule. The regulatory definition of rest of this section and Section III of this the 2015 Rule. Having considered the ‘‘waters of the United States’’ set forth notice. The 2015 Rule did not public comments and relevant litigation in this final rule reflects Supreme Court implement the legal limits on the scope positions, and the decision of the case law and clearly establishes the of the agencies’ authority under the Southern District of Texas on related scope of jurisdictional waters under the CWA as intended by Congress and as arguments, the agencies concluded in CWA. It provides greater regulatory reflected in Supreme Court cases, the 2019 rulemaking that the predictability than the regulatory regime including Justice Kennedy’s articulation administrative record for the 2015 Rule restored by the 2019 Rule. of the significant nexus test in Rapanos. did not contain sufficient record In sum, as compared with both the In the 2019 Rule, the agencies support for the distance-based 2015 Rule and the regulatory regime concluded that in promulgating the limitations that appeared for the first restored by the 2019 Rule, this final rule 2015 Rule the agencies failed to time in that final rule. This conclusion more appropriately reflects the scope of adequately consider and accord due is further supported by similar findings the agencies’ authority under the statute weight to the policy of the Congress in of the U.S. District Court for the and the Constitution; respects the vital CWA section 101(b) to ‘‘recognize, Southern District of Georgia, which role of the States and Tribes in preserve, and protect the primary remanded the 2015 Rule to the agencies managing their land and water responsibilities and rights of States to in August 2019 after identifying resources; and addresses the need of the prevent, reduce, and eliminate substantive and procedural errors with public for predictable, more easily pollution’’ and ‘‘to plan the respect to numerous provisions, implementable regulations that aim to development and use . . . of land and including the rule’s distance limitations. accomplish the objective of the Act, ‘‘to water resources.’’ 33 U.S.C. 1251(b). The Georgia v. Wheeler, 2019 WL 3949922, restore and maintain the chemical, 2015 Rule interpreted the CWA in a at *12–32. By contrast, for the reasons physical, and biological integrity of the manner that pushed the envelope of the discussed elsewhere in this section and Nation’s waters.’’ 33 U.S.C. 1251(a). agencies’ constitutional and statutory in Section III of this notice, this final G. Existing Guidance authority in the absence of a clear rule remains within the bounds of the statement from Congress authorizing agencies’ authority under the In several places in the preamble to substantial encroachment upon Constitution and the CWA, is properly the proposed rule, the agencies solicited traditional State land-use planning supported by the record in this comment on whether they should authority. See Georgia v. Wheeler, No. rulemaking, and is a logical outgrowth revoke the 2003 SWANCC Guidance or 2:15–cv–079, 2019 WL 3949922, at *23 of the NPRM. the 2008 Rapanos Guidance if the agencies were to finalize the proposal. (S.D. Ga. Aug. 21, 2019) (finding the Finally, the agencies believe that this 84 FR 4165, 4167. These guidance 2015 Rule ‘‘unlawful’’ given its final rule will be clearer than the pre- documents were drafted to inform the ‘‘significant intrusion on traditional existing regulatory regime restored by agencies’ implementation of the 1986 state authority’’ without ‘‘any clear or the regulatory text of the 2019 Rule and and 1988 regulations, which the 2019 manifest statement to authorize the prior implementation of that regime Rule recodified, in a manner consistent intrusion into that traditional state in response to adverse Supreme Court with the Supreme Court’s decisions in power’’). decisions and agency guidance. For the SWANCC and Rapanos. Some In addition, the agencies recognize reasons discussed in the 2019 Rule commenters thought that the 2003 and that the 2015 Rule has been remanded preamble, that regulatory regime is 2008 guidance documents provided by the U.S. District Court for the preferable to the 2015 Rule; however, a helpful information and assistance to Southern District of Texas for failing to clear, comprehensive regulation that the public in understanding how the comply with the APA. That court found encompasses the Supreme Court’s agencies might implement a definition that the 2015 Rule suffered from several interpretations is preferable to the pre- of ‘‘waters of the United States.’’ Other problems, including that the distance- existing regulatory regime restored by commenters thought that the documents based limitations in the 2015 Rule were the 2019 Rule. The language of the 2019 should be rescinded to avoid confusion not a logical outgrowth of the proposal Rule regulatory text leaves substantially during implementation of this final rule, in violation of the APA’s public notice more room for discretion and case-by- particularly because the agencies have and comment requirements. See Texas case variation than does this final rule, totally restructured the regulatory v. EPA, 389 F. Supp. 3d 497 (S.D. Tex. particularly paragraph (a)(3) in the 2019 definitions. The agencies considered 2019). The court found this error Rule, which claims jurisdiction over these comments and conclude that, ‘‘significant’’ because the specific waters that are used by interstate or when this final rule becomes effective, distance-based limitations ‘‘alter[ed] the foreign travelers for recreational or other these and other related agency guidance jurisdictional scope of the Act.’’ Id. at purposes, with no reference to navigable documents, memoranda, and materials 504. Litigants challenging the 2015 Rule waters. Following the Supreme Court’s will be rendered inoperative because alleged other APA deficiencies, opinions on the definition of ‘‘waters of they will no longer be necessary or including the lack of record support for the United States,’’ particularly material, and they may in fact create the distance-based limitations inserted SWANCC and Rapanos, the 2019 Rule confusion as the agencies implement into the final rule without adequate must be implemented taking into this final rule. The agencies can develop notice. Several commenters on the account the Court’s holdings and agency new guidance to facilitate proposed repeal of the 2015 Rule raised guidance interpreting those cases. In the implementation of this final rule should similar concerns, arguing that the 2015 decade since the Rapanos decision, the questions arise, if any, regarding the Rule was arbitrary and capricious agencies and the public have become application of the rule to specific because of the lack of record support for familiar with this multi-layered circumstances.34 those limitations. The agencies interpretive approach, which is in part why the agencies finalized the 2019 recognize that the Federal government, 34 To the extent that, as a result of litigation, the in prior briefs before the various district Rule to maintain the pre-existing regime 1986 and 1988 regulations, which the 2019 Rule courts that heard challenges to the 2015 during the process of developing and recodified, remain or become legally effective after

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22273

III. Definition of ‘‘Waters of the United waters that should be regulated by the CWA, which was Congress’ exercise of States’’ Federal government, provided clear ‘‘its commerce power over navigation.’’ The following is a summary of the key direction for the regulated community, Id. at 168 n.3. This final rule establishes categorical elements and each substantive provision and respected State and tribal authority bright lines to improve clarity and of this final rule. Each subsection over their own land and water predictability for regulators and the describes what the agencies are resources. Some commenters stated that regulated community by defining finalizing, why the agencies are the proposal failed to include ‘‘waters of the United States’’ to include finalizing the regulatory text, and how ecologically important waters and the following four categories: (1) The the agencies plan to implement the final wetlands and failed to give due weight territorial seas and traditional navigable rule. To assist the reader, the longer to Justice Kennedy’s concurring opinion in Rapanos. Other commenters stated waters; (2) tributaries of such waters; (3) subsections have internal headings. certain lakes, ponds, and In this final rule the agencies interpret that the proposed rule and supporting impoundments of jurisdictional waters; the term ‘‘the waters’’ in the phrase ‘‘the rationale were based exclusively on the and (4) wetlands adjacent to other waters of the United States’’ to CWA section 101(b) policy to ensure jurisdictional waters (other than waters encompass relatively permanent flowing that States maintain primary authority over land and water resources and failed that are themselves wetlands). The final and standing waterbodies that are to give due weight to the objective in rule eliminates the case-specific traditional navigable waters in their CWA section 101(a) to restore and application of the agencies’ previous own right or that have a specific surface maintain the chemical, physical, and interpretation of Justice Kennedy’s water connection to traditional biological integrity of the nation’s significant nexus test in the Rapanos navigable waters, as well as wetlands waters. Guidance, and instead establishes clear that abut or are otherwise inseparably The agencies disagree with categories of jurisdictional waters that bound up with such relatively commenters’ suggestion that the adhere to the basic principles permanent waters. As the plurality Executive Order requires the agencies to articulated in the Riverside Bayview, decision in Rapanos notes, the term rely exclusively on Justice Scalia’s SWANCC, and Rapanos decisions while ‘‘the waters’’ is most commonly opinion in Rapanos. The Executive respecting the overall structure and understood to refer to ‘‘streams and Order requires the agencies to consider function of the CWA. bodies forming geographical features that opinion, which is what the agencies A. Key Terms and Concepts such as oceans, rivers, lakes,’’ or ‘‘the have done here. The agencies also flowing or moving masses, as of waves disagree with commenters’ suggestion Each of the four categories of waters or floods, making up such streams or that the proposal failed to incorporate of the United States established by this bodies.’’ 547 U.S. at 732 (citing principles from Justice Kennedy’s final rule, as well as the waters that fall Webster’s New International Dictionary opinion, and further disagree with beyond CWA jurisdiction, is discussed 2882 (2d ed. 1954)); see also Riverside commenters’ suggestion that the in detail in Sections III.B through III.H Bayview, 474 U.S. at 131 (characterizing agencies failed to consider the objective below. Many of the operative terms used ‘‘waters of the United States’’ as of section 101(a) in determining where in the final rule are defined in including ‘‘rivers, streams, and other to draw the line of federal jurisdiction. paragraph (c), and their applicability is hydrographic features more However, the agencies considered these discussed at length throughout those conventionally identifiable as and other public comments, and have subsections. This subsection ‘waters’ ’’); see also 118 Cong. Rec. made modifications in the final rule to summarizes a few key terms and 33699 (Oct. 4, 1972) (statement of Sen. better incorporate common principles of concepts that help inform the overall Muskie) (referring to ‘‘navigable waters’’ the Rapanos plurality and concurring implementation of the jurisdictional as ‘‘water bodies’’). According to the opinions, and to strike a careful balance categories established by paragraph (a) Rapanos plurality, however, the between the clear directive from and the non-jurisdictional waters ordinary meaning of the term ‘‘waters’’ Congress to ensure that States maintain established by paragraph (b), and are does not include areas that are dry most primary authority over land and water highlighted here for ease of reference of the year, and which may occasionally resources, and the importance of and additional clarity. contain ‘‘transitory puddles or maintaining federal authority over those One such term is ‘‘typical year.’’ As ephemeral flows of water.’’ 547 U.S. at waters that Congress determined should discussed above, the meaning of the 733. be regulated by the Federal government phrase ‘‘waters of the United States’’ has The agencies received considerable under its Commerce Clause powers. been mired in confusion for decades. public comments on the scope of the The final definition of ‘‘waters of the This is in part because courts, proposed definition of ‘‘waters of the United States’’ aligns with the intent of regulators, the regulated community, United States.’’ Some commenters Congress to interpret the term and members of the public have lacked stated that the proposed rule would ‘‘navigable waters’’ beyond just clear guidance as to how far up the include more waters and wetlands than commercially navigable-in-fact waters. watershed federal jurisdiction extends, appropriate under a strict reading of This definition recognizes Congress’ and what connection is required for Justice Scalia’s plurality opinion in intent ‘‘to exercise its powers under the waters to be considered part of the Rapanos and is therefore inconsistent Commerce Clause to regulate at least regulated tributary system to traditional with Executive Order 13778. Some some waters that would not be deemed navigable waters and the territorial seas. commenters agreed with the proposed ‘navigable’ under the classical The last two Supreme Court cases on rule, stating that it struck an appropriate understanding of that term,’’ Riverside point—SWANCC and Rapanos— balance of asserting jurisdiction over Bayview, 474 U.S. at 133, but at the provided clear instruction to the same time acknowledges that ‘‘[t]he agencies that their prior interpretations the effective date of this rule as a result of litigation, grant of authority to Congress under the had exceeded their jurisdictional the agencies intend to use the guidance documents Commerce Clause, though broad, is not authority under the CWA. The phrase relevant to those regulations, including the 2003 SWANCC Guidance and 2008 Rapanos Guidance, if unlimited.’’ SWANCC, 531 U.S. at 173. ‘‘typical year’’ as used in the final rule necessary to inform implementation of those The definition also recognizes the and throughout this notice is intended regulations. constitutional underpinning of the to provide a predictable framework in

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22274 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

which to establish federal jurisdiction the upstream and downstream portions The agencies believe the revised over relatively permanent waters that of a waterway. For example, if the definition more appropriately reflects contribute surface water flow to waters waters of a perennial headwater stream what the agencies intended to measure, identified in paragraph (a)(1) (generally are diverted to another basin for which is, simply put, the characteristics referred to as ‘‘paragraph (a)(1) waters’’ consumptive use and the downstream of a waterbody at times that are not too or ‘‘a paragraph (a)(1) water’’ in this reach runs dry for major portions of a wet and not too dry. notice), and wetlands adjacent to such year, or the flow of a stream disappears To determine whether water features waters. The term ‘‘typical year’’ is into the desert floor before reaching a are being assessed during normal summarized in Section III.A.1 and is traditional navigable water, questions precipitation conditions, the agencies further discussed throughout the notice. are frequently raised regarding the currently use data from the National The agencies are also defining the jurisdictional status of those waters. Oceanic and Atmospheric terms ‘‘perennial,’’ ‘‘intermittent,’’ and Subsection III.A.3 below discusses the Administration’s (NOAA) Global ‘‘ephemeral’’ in the final rule, adding ‘‘breaks’’ topic in detail and how the Historic Climatology Network, which clarity and certainty for how these agencies have addressed the various integrates climate data from over 20 frequently used terms apply in the artificial and natural features that either sources. The agencies evaluate normal ‘‘waters of the United States’’ context. maintain or sever jurisdiction under the precipitation conditions based on the The agencies have used these terms to final rule. three 30-day periods preceding the assess jurisdictional status under the observation date. For each period, a CWA, but until this final rule have 1. Typical Year weighted condition value is assigned by never defined them in the regulatory In this final rule, the agencies use the determining whether the 30-day text. The terms have specific meaning in term ‘‘typical year’’ to help establish the precipitation total falls within, above, or the scientific community, but when surface water connection between a below the 70th and 30th percentiles for used in legal settings, common parlance relatively permanent body of water and totals from the same date range over the often converges with scientific meaning, traditional navigable waters, and preceding 30 years. The agencies make creating opportunities for between certain wetlands and other a determination of ‘‘normal,’’ ‘‘wetter misunderstanding. For example, while jurisdictional waters, that is sufficient to than normal,’’ or ‘‘drier than normal’’ the Rapanos plurality stated that the warrant federal jurisdiction. ‘‘Typical based on the condition value sum. term ‘‘waters of the United States’’ does year’’ is defined in the final rule to While the agencies will generally use not include ‘‘ordinarily dry channels mean when precipitation and other this method to implement this final through which water occasionally or climatic variables are within the normal rule, the agencies also recognize there intermittently flows,’’ 547 U.S. at 733 periodic range (e.g., seasonally, may be other accurate and reliable (emphasis added), it also stated the annually) for the geographic area of the measurements of normal precipitation phrase does ‘‘not necessarily exclude applicable aquatic resource based on a conditions and will make adjustments seasonal rivers, which contain rolling thirty-year period. Under this to the approach as is scientifically continuous flow during some months of final definition, a typical year would warranted. The agencies may also the year but no flow during dry generally not include times of drought consider alternative methods that are months.’’). Id. at 732 n.5 (emphasis in or extreme flooding. In other words, the developed and appropriately validated, original). ‘‘Seasonal rivers’’—which the purpose of the term is to ensure that including different statistical plurality would not categorically flow characteristics are not assessed percentiles, evaluation periods, or exclude—are known among scientists as under conditions that are too wet or are weighting approaches for condition ‘‘intermittent streams’’—which the too dry. As discussed in Section III.G.2, values. plurality stated it would exclude. The climatic conditions, including flow or Some commenters on the proposed plurality also appears to confuse the flooding, that may occur under ‘‘typical rule were concerned that a 30-year scientific understanding of the terms year’’ conditions do not necessarily period may be too long or too short of ‘‘ ‘intermittent’ and ‘ephemeral’ occur in every calendar year. a record, or that rolling 30-year climate streams,’’ conflating them to mean The agencies proposed to use the term percentiles would be difficult to ‘‘streams whose flow is . . . ‘existing ‘‘typical year’’ to mean within the calculate. The agencies have concluded only, or no longer than, a day[.]’ ’’ Id. normal range of precipitation over a that a rolling 30-year period would Indeed, this description more accurately rolling thirty-year period for a particular account for variability to provide a captures the hydrological definition of geographic area; that is, during times reliable indicator of the climate in a ‘‘ephemeral streams’’ which only flow when it is not too wet and not too dry. given geographic area without being during or in immediate response to However, some commenters on the confounded by a year or two of unusual rainfall. By contrast, ‘‘intermittent proposed rule expressed confusion climate data. A standard timeframe is streams’’ typically flow for a more about the proposed ‘‘typical year’’ necessary to ensure consistent continuous period like the ‘‘seasonal definition, including how it is application across the country, and 30 rivers’’ the plurality describes. Because calculated and what timeframe it years is the most common and the definition of ‘‘tributary’’ specifically represents. Commenters also expressed recognized timeframe utilized in other uses and relies on the terms ‘‘perennial’’ concern that the proposed definition government climatic data programs (e.g., and ‘‘intermittent,’’ but not included only precipitation as a driver NOAA’s National Climatic Data Center ‘‘ephemeral,’’ the agencies are clearly of streamflow classification. Other climate normals, which are based on defining these terms in the final rule. commenters supported the typical year World Meteorological Organization These terms are summarized below in concept as proposed. In response to requirements). Nearly a century ago, the Section III.A.2 and are further discussed these comments, the agencies have International Meteorological throughout the preamble. modified the definition of ‘‘typical year’’ Organization, now known as the World Another challenging issue that has to expressly include other climatic Metrological Organization, instructed confounded the meaning of ‘‘waters of variables in addition to precipitation member nations to calculate climate the United States’’ for years is what and additional description of the normal normals using 30-year periods, types of natural or artificial features periodic range, signaling that such range beginning with 1901 to 1930 (see potentially sever jurisdiction between need not be based on a calendar year. https://www.ncdc.noaa.gov/news/

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22275

defining-climate-normals-new-ways). approximate dates of wet and dry streams, for example, may result Recognizing that precipitation and seasons for any terrestrial location based primarily from melting snowpack, not temperature change over time, the on average monthly precipitation and from groundwater contributions to the agencies have determined that a rolling estimated evapotranspiration (http:// channel. The term ‘‘ephemeral’’ in the 30-year record is necessary to ensure climate.geog.udel.edu/∼wimp/); Climate final rule means surface water flowing that changing conditions are captured Analysis for Wetlands Tables (known as or pooling only in direct response to by the calculation. The agencies have WETS tables, or similar tools, as the precipitation, such as rain or snow fall. considered other alternative time WETS tables are currently in a fixed 30- With these definitions, the agencies periods and are maintaining the well- year timeframe), which are provided by distinguish ephemeral flow resulting established 30-year period. the NRCS National Water and Climate from a snow fall event from sustained The agencies proposed that the Center (https://www.wcc.nrcs.usda.gov/ intermittent flow resulting from melting geographic area be on a watershed-scale climate/wets_doc.html) and were snowpack that is continuous, such as for basis to ensure specific climatic data are calculated from long-term (30-year) weeks or months at a time. representative of the landscape in weather records gathered at National Some commenters requested that the relation to the feature under Weather Service meteorological stations; final rule require that groundwater must consideration for meeting the and drought indices, such as the Palmer be the source for perennial and ‘‘tributary’’ definition and sought Drought Severity Index (PDSI) (Sprecher intermittent flow in tributaries. The comment on the appropriate watershed and Warne 2000), where time-series agencies recognize that groundwater scale. Some commenters on the plots of PDSI values by month or year input is an element of most scientific proposed rule suggested constraining are available from the National Climatic definitions of perennial and intermittent precipitation data sources to the Data Center (https:// flow,35 but have decided not to mandate smallest practicable watershed scale www.ncdc.noaa.gov/temp-and-precip/ groundwater input as part of the (e.g., a USGS HUC–12 scale). However, drought/historical-palmers/psi/201811- definition of ‘‘perennial’’ or other commenters noted that 30 years of 201910 or https:// ‘‘intermittent’’ in the final rule. As a data may not always be available at that www.cpc.ncep.noaa.gov/products/ threshold matter, the agencies believe scale, and other considerations such as monitoring_and_data/drought.shtml). that such an approach would too distance or ecoregion are also important narrowly limit CWA jurisdiction over for identifying appropriate climatic 2. Perennial, Intermittent, and waters that provide continuous or data. In response to these comments, the Ephemeral intermittent and predictable flow to agencies have determined that Though ‘‘perennial,’’ ‘‘intermittent,’’ traditional navigable waters in a typical specifying a particular watershed size or and ‘‘ephemeral’’ are commonly used year. For example, many headwater Hydrologic Unit Code (HUC) could scientific terms, the agencies are streams in mountainous regions flow preclude the use of the best available including definitions of these terms in through channels incised in bedrock data sources, but that watershed the final rule to ensure that the with no groundwater interface with the boundaries should be a consideration regulation is clear. In this final rule, the bed of the stream. These streams instead when selecting climate records. Other agencies define the term ‘‘perennial’’ to are fed by glacial or high elevation considerations should include data mean surface water flowing snowpack melt. The same scenario may availability, topography, and distance of continuously year-round. The term also exist in northern climes, where climatic data collection in relation to ‘‘intermittent’’ in the final rule means spring flows could be fed almost the aquatic resource location. surface water flowing continuously exclusively through melting snowpack The agencies recognize that during certain times of the year and absent elevated groundwater tables. precipitation data may not be the only more than in direct response to Mandating a groundwater interface and appropriate indicator for determining precipitation (e.g., seasonally when the contribution of flow could also be ‘‘typical year,’’ as was noted by many groundwater table is elevated or when challenging to implement, as identifying commenters on the proposed rule. snowpack melts). The phrase ‘‘certain whether the channel bed intersects the Although the agencies will generally use times of the year’’ is intended to include groundwater table may be difficult to the methodology described in this extended periods of predictable, accomplish in the field, gathering the notice for determining normal continuous surface flow occurring in the relevant data could be time consuming, precipitation conditions, the agencies same geographic feature year after year. and implementing a source water-based will consider and use the best available Continuous surface water flow during definition could require new tools and data and information, which provides certain times of the year may occur training of field staff and the regulated the most accurate and reliable seasonally such as in the spring when public. The requirement for a representative information for the evapotranspiration is low and the groundwater flow source could also aquatic resource in question, to groundwater table is elevated. Under render effluent-dependent streams non- determine ‘‘typical year.’’ For instance, these conditions, the groundwater table jurisdictional. The agencies do not determinations of ‘‘typical year’’ based intersects the channel bed and interpret the text or legislative history of on precipitation totals may conflict with groundwater provides continuous the CWA or Supreme Court guidance to other sources of information such as baseflow for weeks or months at a time mandate groundwater input as a drought indices, which account for even when it is not raining or has not condition precedent for asserting other hydrologic factors like very recently rained. Melting snowpack jurisdiction over tributaries to evapotranspiration and water storage. can be the sole or primary source of traditional navigable waters. The agencies currently use professional perennial or intermittent flow in a A few commenters asked for judgment and a weight of evidence tributary. The term ‘‘snowpack’’ is clarification to better distinguish approach as they consider precipitation defined as ‘‘layers of snow that normalcy along with other available accumulate over extended periods of 35 See, e.g., 82 FR 2006 (Jan. 6, 2017) (Corps data sources. These data sources time in certain geographic regions or at nationwide permit program); National Research Council. 2002. Riparian Areas: Functions and include, but are not limited to, the Web- high elevation (e.g., in northern climes Strategies for Management. Washington, DC: The based Water-Budget Interactive or mountainous regions).’’ Perennial or National Academies Press. https://doi.org/ Modeling Program (WebWIMP) for intermittent flow in certain mountain 10.17226/10327.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22276 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

between flow ‘‘in direct response to Some commenters requested clarity challenges to the agencies under the precipitation’’ versus ‘‘more than in on the specific geographic regions final rule as they draw on the expertise direct response to precipitation,’’ as where ‘‘snowpack’’ as defined under the of other Federal and State partners. well as further clarification on the proposed rule would occur. Other In certain parts of the country and distinction between ephemeral and commenters requested that the agencies during certain times of the year, intermittent flow classifications in clarify how melting snowpack is snowpack may have a more significant general. For example, they requested distinguished from melting snowfall influence on flow classifications than clarification on whether streams that and clearly articulate the amount of rainfall. Sources of information on flow continuously during a rainy season snow needed to meet the definition of ‘‘snowpack’’ can be found in the NOAA (e.g., monsoon-driven streams in the ‘‘snowpack,’’ as well as provide clarity national snow analyses maps (https:// arid West) are considered intermittent. on what ‘‘extended periods’’ of time www.nohrsc.noaa.gov/nsa/), in NRCS The use of the term ‘‘direct’’ by the means. They also requested clarification sources (https:// agencies in the proposed rule and on the sources of information (e.g., from www.wcc.nrcs.usda.gov/snow/), or by maintained in this final rule is intended NOAA, NRCS, or another source) that using hydrographs of subject locations to distinguish between flow solely can be used to identify ‘‘snowpack.’’ as a potential guide to alert the caused by individual precipitation ‘‘Extended periods of time’’ refers to regulated public and regulators as to events (including multiple, individual more than merely a single snowfall which regions of the country have to back-to-back storms), and continuous event or periodic events with repeated consider snowpack scenarios. In these flow resulting, for example, from weeks- snowmelts after each occurrence, but regions, for example, a hydrograph or months-long accumulation of rather recurring snow events which could indicate a large increase in precipitation in the form of snowpack result in an accumulation of multiple discharge volume due to the late spring/ that melts slowly over time or an layers of snow in certain geographic early summer thaws of melting elevated groundwater table that regions, which may include, for snowpack. These are indicators of a provides baseflow to the channel bed. example, parts of North Dakota or regular, predictable, seasonal Ephemeral flow may occur simply Alaska, or at high elevation, to occurrence of flow. The large water because it is raining or has very recently potentially include the Rocky, Sierra contribution source for those northern rained or it has recently snowed and the Nevada, or Cascade mountains. A foot of geographic regions which do not have snow has melted. For example, new snow fall on the high plains of significant elevation changes, but which ephemeral flow could be the result of a southern Wyoming in May will do have a consistent, predictable small, brief storm event, one long storm typically melt quickly under the intense snowfall that accumulates on the event producing rainfall for several days sun of subsequent days, while a foot of ground for extended periods of time, are without pause, or several back-to-back snow in northern Wisconsin in January covered in this rule’s definition of storms. Continuous flow occurring more will likely contribute to seasonal ‘‘snowpack’’ in paragraph (c)(10), in than in direct response to precipitation snowpack that may not melt until spring addition to mountainous regions with could include ‘‘seasonal’’ flow, such as thaw. The first scenario is more likely snowpack. when snowpack melts or when to cause ephemeral flow, the second is 3. Breaks groundwater is elevated and provides more likely to cause intermittent flow. Under the proposed rule, an artificial baseflow to the channel bed. Streamflow The agencies could consider any data or natural ephemeral feature (e.g., an that occurs during the monsoon season sources that provide an accurate ordinarily dry channel only flowing in certain parts of the country (typically estimation of ‘‘snowpack’’ in identifying during or in immediate response to June through September in the arid that feature. The agencies are not precipitation) occurring in a typical year West) may be ephemeral or intermittent, limiting the identification of snowpack at any point along a tributary network with the distinction made according to to one data source, such as those would have severed jurisdiction the definition of each term in the final provided by NOAA or NRCS, although upstream of the ‘‘break’’ because the rule. For example, a stream in the arid those are reliable existing sources to waterbody would not convey surface West is ephemeral if it flows only in find information on snowpack. The water to a paragraph (a)(1) water year- direct response to rainfall, even if the Bureau of Reclamation and several round or continuously for extended flow may appear relatively continuous western States depend on accurate snow periods of time. 84 FR 4173–74. To be as a result of multiple, individual fall and accumulation data to project jurisdictional, lakes and ponds that are storms during the monsoon season. On water availability for consumptive not paragraph (a)(1) waters would have the other hand, when monsoon needs and the allocation of water rights. needed to maintain perennial or floodwaters locally recharge the riparian Analyzing the location and seasonality intermittent flow to a paragraph (a)(1) aquifer through bank infiltration and of snowpack is a common, well water in a typical year or be flooded by supply sustained baseflow to streams in understood practice in other contexts a jurisdictional water in a typical year. the arid West when it is not raining or and will not pose implementation Id. at 4182. In other words, to be has not recently rained, such streams jurisdictional, the proposed rule would meet the rule’s definition of as ‘‘short, intense rainstorms that generate have required tributaries and most lakes ‘‘intermittent’’ if they flow seasonally, significant amounts of flooding and ephemeral flow (i.e., flow in ephemeral channels on the basin floor) and ponds to maintain a perennial or for example, or ‘‘perennial’’ if they flow intermittent surface water connection 36 and represent, on average, the bulk of summer continuously year-round. moisture.’’ (Emphasis added). See also Connectivity all the way to a downstream paragraph Report at B–39 (‘‘Monsoon-generated, short- (a)(1) water. The agencies received 36 See e.g., Baillie, M.N., J.F. Hogan, B. Ekwurzel, duration runoff dominates the San Pedro A.K. Wahi, and C.J. Eastoe. 2007. Quantifying water watershed. . . Most perennial and intermittent public comments indicating that this sources to a semiarid riparian ecosystem, San Pedro rivers in the Southwest are groundwater dependent, approach could affect the jurisdictional River, Arizona, J. Geophysical Res., 112, GO3S02, flowing primarily in a baseflow regime and status of many waters, particularly in doi: 10.1029/2006JG000263. Ballie et al. (2007) supported by discharge from a connected regional the arid West; that it could found that locally recharged monsoon floodwater is or alluvial aquifer or both.... [P]art of the one of the dominant water sources in the main stem baseflow is often sustained or augmented by slow inadvertently subject otherwise exempt of the spatially intermittent San Pedro River in drainage of a shallow alluvial aquifer from past water transfers to CWA section 402 Arizona. The authors also define ‘‘monsoon storms’’ flooding.’’) permitting; and it could create

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22277

implementation challenges. The connections that are likely insufficient streams, including those at the very agencies received other comments to maintain jurisdiction when read in headwaters of a channel network, do not supporting the proposed approach. context with the principles articulated connect relatively permanent As further discussed below, the final throughout the balance of the opinion. jurisdictional waters to downstream rule contains some important changes to For instance, the plurality characterized jurisdictional waters; rather, they are address these concerns, which are an ‘‘expansive definition of merely ‘‘channels that periodically intended to better incorporate common ‘tributaries’ ’’ as including ‘‘dry arroyos provide drainage for rainfall.’’ Rapanos, principles from the Rapanos plurality connected to remote waters through the 547 U.S at 739 (Scalia, J. plurality). The and concurring opinions, and to strike flow of groundwater over ‘centuries,’ ’’ agencies conclude in this final rule that a better balance between the objective id. at 725–26 (internal citations certain ephemeral features between and policy in CWA sections 101(a) and omitted), and described federal control upstream relatively permanent 101(b), respectively. Changes made in over ‘‘irrigation ditches and drains that jurisdictional waters and downstream the final rule, however, remain faithful intermittently connect to covered jurisdictional waters do not sever to the overall text, structure, and waters’’ as ‘‘sweeping assertions of jurisdiction upstream so long as such legislative history of the CWA and the jurisdiction.’’ Id. at 726–27. In addition features satisfy the conditions described legal principles outlined in Section II.E. to ‘‘tributaries,’’ the plurality noted with further below. Like the proposed Many of the changes were designed to disapproval that the Corps and lower treatment of ephemeral features, the address questions and concerns courts had ‘‘define[d] ‘adjacent’ final rule is based on an equally regarding under what circumstances a wetlands broadly’’ to include wetlands reasonable interpretation of the CWA natural or artificial feature severed ‘‘hydrologically connected’’ ‘‘to covered and Supreme Court precedent, and upstream jurisdiction, as discussed in waters’’ ‘‘ ‘through directional sheet appropriately balances the plurality and detail in this subsection and as further flow during storm events,’ ’’ and concurring opinions in Rapanos and the explained throughout Section III. wetlands ‘‘connected to the navigable objective of the Act and the policy of The Supreme Court has not spoken water by flooding, on average, once Congress set forth in CWA sections directly to the question of whether a every 100 years[.]’’ Id. at 728. The 101(a) and 101(b). non-jurisdictional ephemeral break agencies considered these observations In the final rule, certain ephemeral along or downstream of an otherwise in developing the final rule but features do not sever jurisdiction of an jurisdictional tributary, lake, pond, or recognize that the Supreme Court has upstream relatively permanent impoundment would sever jurisdiction not spoken directly to every aspect of jurisdictional water so long as they of upstream waters. As described in the agencies’ existing regulations or provide a surface water connection to a Section II.E, Supreme Court precedent every fact pattern that may raise downstream jurisdictional water in a provides some insight regarding CWA questions of federal jurisdiction. The typical year. Specifically, the final rule jurisdiction of relatively permanent final rule therefore is also based on the provides that a tributary does not lose bodies of water, including tributaries, text, structure, and legislative history of its jurisdictional status if it contributes lakes, and ponds, and their connection the CWA, the reasoned policy choices of surface water flow in a typical year to to traditional navigable waters, but it the executive branch agencies a downstream jurisdictional water does not provide comprehensive authorized by Congress to implement through a channelized non- guidance. For example, the Rapanos the Act, and the agencies’ technical and jurisdictional surface water feature, plurality describes a ‘‘water of the through a subterranean river, through a scientific expertise administering the United States’’ as ‘‘a relatively culvert, dam, tunnel, or similar artificial CWA over nearly five decades. permanent body of water connected to feature, or through a debris pile, boulder traditional interstate navigable The proposed rule, which would have field, or similar natural feature. See waters[.]’’ Rapanos, 547 U.S. at 742 severed jurisdiction upstream of any paragraph (c)(12). The final rule applies (emphasis added). Regarding the ephemeral feature, reflected a the same basic principles to the category connection between a water in question reasonable interpretation of the CWA of lakes, ponds, and impoundments of and downstream navigable waters, and incorporated relevant Supreme jurisdictional waters. See paragraph Justice Kennedy noted that ‘‘in some Court guidance. However, upon further (c)(6). A lake, pond, or impoundment of instances, as exemplified by Riverside consideration, the agencies conclude a jurisdictional water does not lose its Bayview, the connection between a that the proposed rule’s treatment of jurisdictional status if it contributes nonnavigable water . . . and a navigable ephemeral features would have severed surface water flow to a downstream water may be so close, or potentially so jurisdiction for certain relatively jurisdictional water in a typical year close, that the Corps may deem the permanent bodies of water that are through artificial features such as water . . . a ‘navigable water’ under the regularly ‘‘connected to’’ traditional culverts and spillways. The agencies Act. In other instances, as exemplified navigable waters via channelized conclude that such features do not by SWANCC, there may be little or no surface water flow, allowing such necessarily sever jurisdiction of connection.’’ Id. at. 767. Justice waters to connect and become upstream waters. However, if an Kennedy also stated that ‘‘mere indistinguishable when flowing. Some artificial feature does not allow for the hydrologic connection should not ephemeral reaches between upstream contribution of surface water flow to a suffice in all cases; the connection may and downstream relatively permanent downstream jurisdictional water in a be too insubstantial for the hydrologic (i.e., perennial or intermittent) waters typical year, it severs jurisdiction linkage to establish the required nexus convey surface water from the upstream upstream of the artificial feature. The with navigable waters as traditionally water to the downstream covered water final rule treats natural features such as understood.’’ Id. at 784–85. during a typical year. These reaches debris piles and boulder fields the same Although the Rapanos plurality allow upstream relatively permanent way that it treats the artificial features opinion did not specify what would jurisdictional waters to have a surface described above. constitute a sufficient connection water connection to downstream The changes made in the final rule between relatively permanent waters jurisdictional waters in a typical year address concerns raised by commenters and downstream traditional navigable when there is sufficient water in the about features that would sever the waters, it did signal types of system. In contrast, other ephemeral jurisdiction of upstream portions of the

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22278 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

tributary network, including relatively predictable surface water connection— regular surface flow and can be permanent upstream waters that one that occurs in a typical year—which ubiquitous across the landscape, contribute surface water flow to addresses Justice Kennedy’s concern occurring over parking lots and lawns, downstream waters when enough water that speculative and insubstantial for example. As Justice Kennedy notes is in the system. It also addresses connections may not be sufficient to in Rapanos, ‘‘mere hydrologic concerns raised by water management establish jurisdiction. Id. at 784–86. The connection should not suffice in all interests that suggested the proposed types of connections that maintain cases[,]’’ 547 U.S. at 784, and the rule could have inadvertently jurisdiction between relatively agencies agree with the Rapanos undermined the NPDES permitting permanent bodies of water are described plurality that ‘‘[t]he plain language of exemption authorized by the EPA’s more fully below. the statute simply does not authorize [a] Water Transfers Rule, 73 FR 33697 (June The agencies conclude that ‘Land is Waters’ approach to federal 13, 2008). That rule does not require tributaries, lakes, ponds, and jurisdiction.’’ Id. at 734. The agencies NDPES permits for water transfers impoundments of jurisdictional waters ‘‘must necessarily choose some point at between waters of the United States that are relatively permanent flowing or which water ends and land begins[,]’’ because they do not result in the standing waterbodies upstream of Riverside Bayview, 474 U.S. at 132, and ‘‘addition’’ of a pollutant. Id. at 33699. certain excluded features are conclude that diffuse runoff and In many regions of the country, jurisdictional so long as the non- overland sheet flow connections are particularly the arid West, inter- and jurisdictional feature maintains a ‘‘too insubstantial for the hydrologic intra-basin water transfers may originate channelized surface water connection to linkage to establish the required nexus in perennial or intermittent waters that downstream jurisdictional waters in a with navigable waters as traditionally may be disconnected from downstream typical year. Paragraph (b) of the final understood.’’ Rapanos, 547 U.S. at 784– waters by ephemeral breaks. In many regulation identifies twelve categories of 85 (Kennedy, J. concurring in the circumstances, those ephemeral breaks excluded features, but only those judgment). In this final rule, the may be caused by water management features that convey channelized surface agencies therefore conclude that surface systems, including through water flow between upstream relatively water flowing as unchannelized runoff transfers, water storage reservoirs, flood permanent waters and downstream or sheet flow over land cannot sustain irrigation channels, and similar jurisdictional waters in a typical year a regular or predictable surface water structures. Not all diversions will cause can maintain jurisdiction of the connection between upstream and a downstream portion of an otherwise upstream waters. For example, non- downstream waters and therefore perennial or intermittent stream to jurisdictional ditches could be capable cannot maintain jurisdiction between become ephemeral in a typical year; of conveying channelized surface water such waters. By contrast, channelized however, the modifications made by the flow between upstream relatively ephemeral features may indicate that final rule to the categories of tributaries permanent jurisdictional waters and surface water predictably moves from and of lakes, ponds, and impoundments downstream jurisdictional waters in a upstream relatively permanent waters to of jurisdictional waters help address the typical year. Similarly, a surface water downstream jurisdictional waters, such concerns raised by commenters connection may occur through an that they may be capable of providing a regarding the potential impact of the ephemeral channelized conveyance and surface water connection sufficient to proposed rule on longstanding water may result in the mixing of upstream warrant federal regulation over the and downstream relatively permanent management practices in this country. upstream water. As noted above, a non- waters following sufficient The agencies are cognizant of the jurisdictional feature remains non- precipitation, but in all cases such a importance of water management in the jurisdictional even if it provides a connection must occur in a typical year. States and the explicit policy directives The final rule also provides that other channelized surface water connection of Congress to recognize the authority of types of artificial or natural features, between jurisdictional waters in a States to allocate and manage water such as dams or boulder fields, may typical year. resources within their respective maintain jurisdiction so long as they Like diffuse overland flow, the jurisdictions. See 33 U.S.C. 1251(g), convey surface water flow from an agencies also conclude that relatively 1370. upstream tributary, lake, pond or permanent bodies of water that are Under the final rule, ephemeral impoundment of a jurisdictional water connected to downstream jurisdictional features and other excluded artificial to a downstream jurisdictional water in waters only via groundwater are not and natural features are not a typical year. The agencies have jurisdictional and are more jurisdictional and do not become concluded that water flowing through appropriately regulated by the States jurisdictional even if they episodically features such as dams or boulder fields and Tribes under their sovereign convey surface water from upstream can sustain a regular and predictable authorities. The agencies have long relatively permanent jurisdictional surface connection between upstream interpreted the CWA as not authorizing waters to downstream jurisdictional and downstream waters and therefore jurisdiction over groundwater and have waters in a typical year, and thereby can maintain jurisdiction between such historically excluded groundwater from help maintain the jurisdictional status waters. the definition of ‘‘waters of the United of the upstream waters. This approach By contrast, diffuse stormwater runoff States.’’ The agencies are retaining that incorporates the plurality’s requirement and directional sheet flow by their very longstanding principle in this final rule. that jurisdictional waters be nature do not convey channelized See paragraph (b)(2). If groundwater is continuously present, fixed bodies of surface flow and do not provide regular not jurisdictional, it also makes water and that dry channels, transitory and predictable surface water practical sense that surface water puddles, and ephemeral flows be connections between upstream features connected only via excluded from jurisdiction. 547 U.S. at relatively permanent bodies of water groundwater likewise are not 733–34; see also id. at 731 (‘‘[T]he CWA and downstream jurisdictional waters. jurisdictional. See Rapanos, 547 U.S. at authorizes federal jurisdiction only over Unchannelized surface flow, such as 725–26 (Scalia, J., plurality) (identifying ‘waters.’ 33 U. S. C. 1362(7).’’). This diffuse runoff or overland sheet flow, groundwater connections as an example approach also requires a regular and lacks an adequate physical indicator of of the expansive interpretation of

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22279

tributaries under the Act). The term becomes subterranean and daylights include completely losing streams (e.g., ‘‘navigable’’ as used in the statute must about a quarter of a mile downstream; streams that experience a complete loss be given some meaning, see SWANCC, the Lost River in Indiana, which flows of surface water to a groundwater 531 U.S. at 172, and regulating surface underground for eight miles from where system) that do not reach traditional waters with no surface water connection it disappears, to where it rises at two navigable waters in a typical year and to traditionally navigable waters places to flow aboveground again; and waters that connect downstream only as stretches that meaning ‘‘beyond formations like the St. Marks and Santa a result of precipitation events that parody.’’ Rapanos, 547 U.S. at 734 Fe Rivers in Florida, which flow into generally do not occur in a typical year (Scalia, J., plurality). There are, large sinkholes and reappear a little over (e.g., 10-, 25-, 50-, 100- or 500-year however, certain unique subsurface one-half mile and three miles storms or floods). These waters do not connections that could maintain downstream, respectively. The agencies provide a regular surface water jurisdiction as discussed below; the do not consider subterranean rivers to connection to jurisdictional waters. agencies recognize that there are some be groundwater, even though they flow Given that the term ‘‘navigable’’ must be relatively permanent tributaries that are under the surface of the ground for what given some effect, and that the Supreme relocated below ground to allow is generally a short period of time Court has cautioned the agencies to reasonable development to occur. through subterranean natural channels. avoid interpretations of the statute that In urban areas, for example, it can be Although it has never been promulgated raise significant constitutional common for surface waters to be buried in regulatory text, the agencies have questions, the agencies conclude that underground through an artificial historically treated these subterranean such waters are more properly regulated tunnel system to facilitate urban flowing connections as not severing as land and water resources of the States development. See, e.g., Connectivity jurisdiction over the upstream surface and Tribes. See SWANCC, 531 U.S. at Report at 3–3. Examples include Jones channel, and the Corps has developed 173. Falls, which flows under Baltimore, expertise in performing field As described in detail in Section III.G, Maryland, and daylights into the verifications for these unique waters. adjacent wetlands are subject to a Baltimore’s Inner Harbor; Park River The final rule does not change this different jurisdictional test than which flows under Hartford, longstanding practice and for the first tributaries, lakes, ponds, and Connecticut, and daylights into the time provides certainty and impoundments of jurisdictional waters. Connecticut River; and Mill Creek, a transparency regarding the agencies’ According to the Rapanos plurality, for tributary of Lake Erie, which is diverted approach for making jurisdictional example, to be ‘‘waters of the United underground beneath downtown Erie, determinations. The agencies have States,’’ a tributary, lake, pond, or Pennsylvania, and daylights into added the phrase ‘‘subterranean river’’ impoundment must be ‘‘a relatively Presque Isle Bay. These underground to paragraph (c)(12) to clarify that permanent body of water connected to tunnels and similar channelized subterranean rivers, as compared to traditional interstate navigable waters,’’ subsurface features do not become groundwater and other subsurface 547 U.S. at 742 (Scalia, J., plurality); to groundwater, even though they flow waters, may not break jurisdiction of be ‘‘waters of the United States,’’ a under the surface of the ground for a upstream tributaries, including any period of time. These features do not jurisdictional lakes, ponds, and wetland must have ‘‘a continuous break the jurisdictional status of impoundments of jurisdictional waters surface connection’’ to such relatively upstream tributaries subject to the that contribute surface water flow permanent waters, ‘‘making it difficult conditions of paragraph (c)(12). In some through these tributaries, depending on to determine where the ‘water’ ends and cases where such channels never return the factual circumstances. These the ‘wetland begins.’’ Id. The final rule to the surface or otherwise do not subterranean rivers are distinguished in defines ‘‘adjacent wetlands’’ to include contribute surface water flow to a this final rule from other surface waters all wetlands that abut—meaning to paragraph (a)(1) water in a typical year, that, for example, may disappear touch at least one point or side of—a the upstream surface water features may underground and never daylight or territorial sea, traditional navigable not be jurisdictional under the final daylight as an aquifer-fed spring or water, tributary, lake, pond, or rule. In all cases, the underground or headwater of another river.37 The final impoundment of a jurisdictional water. buried portion of a channel network is rule does not maintain jurisdiction The final rule also includes other not jurisdictional under the final rule. upstream of these other surface waters wetlands that are inseparably bound up By comparison, tributaries that are that may disappear underground and with jurisdictional waters and relies on relocated through a ditch or similar become part of the aquifer because the certain regular hydrologic surface artificial surface channel are aquifer holds groundwater. The agencies connections to establish jurisdiction. jurisdictional under the final rule so have concluded that groundwater For instance, the ‘‘adjacent wetlands’’ long as they continue to meet the flow connections are an insufficient basis to definition includes wetlands physically conditions of paragraph (c)(12), assert jurisdiction over otherwise separated only by artificial structures including through the relocated portion. disconnected waters. In all cases, the such as dikes, or barriers, or divided by In very limited circumstances, a underground portions of all waters are roads and similar structures so long as tributary can naturally, temporarily flow not jurisdictional under the final rule. the structure allows for a direct underground as a channelized river or The final rule also establishes that hydrologic surface connection in a stream, maintaining the same or very waters that do not contribute surface typical year: For example, through a nearly the same flow volume water to a downstream territorial sea or culvert, flood or tide gate, pump, or underground and at the downstream traditional navigable water in a typical similar feature. Jurisdiction of the point where it returns to the surface. year are not jurisdictional. These waters wetland is severed when, in a typical These natural systems are commonly year, an artificial feature does not allow referred to as subterranean rivers or 37 See Connectivity Report at A–1, defining for a direct hydrologic surface streams and can occur as a result of ‘‘aquifer’’ as ‘‘[a] geologic formation (e.g., soil, rock, connection between the wetland and the unique geologic formations, such as sink alluvium) with permeable materials partially or jurisdictional water, or the wetland is fully saturated with ground water that yields holes and lava tubes. Examples include ground water to a well, spring, or stream.’’ not inundated by flooding from a the Popo Agie River in Wyoming, which (emphasis added). territorial sea, traditional navigable

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22280 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

water, tributary, lake, pond, or be jurisdictional only if they are United States.’’ The agencies are impoundment of a jurisdictional water. adjacent to the territorial seas or a finalizing this portion of the rule as See 547 U.S. at 742 (Scalia, J., plurality) traditional navigable water, tributary, proposed, with slight modifications (such wetlands ‘‘do not implicate the lake, pond or impoundment of a discussed below. The final rule boundary-drawing problem of Riverside jurisdictional water. In 1986, the Corps maintains these categories of ‘‘waters of Bayview,’’ and thus do not have the defined ‘‘waters of the United States’’ as the United States’’ but consolidates ‘‘necessary connection’’ to jurisdictional including ‘‘wetlands adjacent to [other them into a single paragraph in the waters that triggers CWA jurisdiction); jurisdictional] waters (other than waters regulatory text. see also id. at 747 (the plurality found that are themselves adjacent),’’ 51 FR Many commenters supported the ‘‘no support for the inclusion of 41250, meaning that wetlands obtain retention of the agencies’ longstanding physically unconnected wetlands as jurisdictional status under the CWA by foundational category of CWA covered ‘waters’ ’’). virtue of their adjacency to traditional jurisdiction, unchanged from previous Wetlands are jurisdictional if they are navigable waters, tributaries, and other regulatory text. They stated that the inundated by flooding from a territorial actual waters, not by adjacency to other category was well understood, and its sea, traditional navigable water, wetlands.38 In 2019, the agencies application guided by a developed body tributary, lake, pond, or impoundment recodified this definition of ‘‘waters of of case law. Most commenters of a jurisdictional water in a typical the United States.’’ 84 FR 56626. Under supported integrating territorial seas year. The agencies conclude that these this final rule, wetlands cannot be into a single category with traditional wetlands are inseparably bound up with adjacent to other wetlands; they can navigable waters, agreeing with the their adjacent jurisdictional waters and only be adjacent to the territorial seas, agencies that it helped streamline the are therefore jurisdictional. See a traditional navigable water, a regulatory text, but some requested Rapanos, 547 U.S. at 732 (Scalia, J., tributary, or a lake, pond, or clarifications to maintain the distinction plurality) (quoting Webster’s New impoundment of a jurisdictional water. between the two types of waters. Some International Dictionary 2882 (2d ed. This holds true regardless of any commenters requested that the agencies 1954)) (recognizing floods as ‘‘making hydrologic connection between a modify the test for traditional navigable up such streams or bodies’’ of water); id. distinct wetland (i.e., a wetland waters by clarifying that such waters at 740 (recognizing the principle that delineated with boundaries distinct must be used to ‘‘transport commerce’’ wetlands that adjoin other jurisdictional from those of an adjacent wetland) and rather than simply being ‘‘used’’ for or waters are part of those waters for an adjacent wetland when the distinct susceptible to ‘‘use’’ in interstate or purposes of CWA jurisdiction). The wetland is physically separated from the foreign commerce, reflecting the final rule likewise asserts jurisdiction adjacent wetland by upland or other terminology used by Congress in section over lakes, ponds, and impoundments artificial or natural features. Because the 404(g) of the CWA. Responding to the of jurisdictional waters that are agencies believe that the final rule’s agencies’ request for comment on inundated in a typical year by flooding definition of ‘‘adjacent wetlands’’ is Appendix D, several commenters from a territorial sea, traditional clear on the jurisdictional linchpin for requested that the agencies eliminate or navigable water, tributary, or another adjacency (by tethering jurisdiction to modify Appendix D to the U.S. Army lake, pond, or impoundment of a paragraph (a)(1) through (3) waters), the Corps of Engineers Jurisdictional jurisdictional water. agencies are not including the ‘‘other Determination Form Instructional The final rule also provides that than waters that are themselves Guidebook (hereinafter, ‘‘Appendix wetlands separated from jurisdictional 39 adjacent’’ provision from the 2019 Rule D’’), stating that Appendix D is waters only by a natural berm, bank, (and earlier versions) in this final rule. confusing, overstates the agencies’ dune, or other similar natural feature are authority under existing case law, and adjacent wetlands. These natural B. Territorial Seas and Traditional allows the agencies to regulate virtually features are indicators of a sufficient Navigable Waters any isolated water by misapplying the hydrologic surface connection between 1. What are the agencies finalizing? established judicial tests for navigability the jurisdictional water and the under the CWA. Other commenters wetland, and the agencies conclude that The agencies are making no suggested the agencies retain Appendix wetlands that are separated from substantive textual changes to the D as useful field guidance and to avoid jurisdictional waters only by such longstanding inclusion of traditional features are inseparably bound up with navigable waters and the territorial seas 39 U.S. Army Corps of Engineers Jurisdictional the adjacent jurisdictional waters and in the definition of ‘‘waters of the Determination Form Instructional Guidebook, are therefore ‘‘part of those waters.’’ Id. available at https://usace.contentdm.oclc.org/utils/ 38 getfile/collection/p16021coll11/id/2316. The Physically remote isolated wetlands The agencies note that at oral argument in agencies note that Appendix D is sometimes (i.e., wetlands that do not abut, are Rapanos, Chief Justice Roberts recognized this referred to as ‘‘Appendix D to the Rapanos separated by more than a natural berm principle, stating that the 1986 definition ‘‘covers Guidance’’ and was inadvertently referred to as wetlands adjacent to waters other than waters that such in the preamble to the proposed rule. The from, are not inundated by flooding in are themselves wetlands,’’ and ‘‘the Corps says appendix actually resides as an attachment to the a typical year from, and do not have a we’re not going to reach the wetland that is adjacent Jurisdictional Determination Form Instructional direct hydrologic surface connection in to another wetland.’’ Transcript of Oral Argument Guidebook that was published in 2007 concurrently a typical year to a jurisdictional non- at 45, 47, Rapanos v. United States and Carabell v. with the 2007 Rapanos Guidance. The Rapanos United States, 547 U.S. 715 (2006) (Nos. 04–1034, Guidance was later undated in 2008, but Appendix wetland water) are not adjacent 04–1384). The Chief Justice added that this D has remained unchanged since 2007. Appendix wetlands under the final rule. For ‘‘suggests that even the Corps recognized that at D notes (at page 1) that ‘‘EPA and the Corps are example, impoundments that are some point you’ve got to say stop because logically providing this guidance on determining whether a formerly adjacent wetlands that are any drop of water anywhere is going to have some water is a ‘traditional navigable water’ for purposes sort of connection through drainage. And they’re of the Rapanos Guidance, the Clean Water Act physically disconnected from other stopping there, and I wonder if we ought to take (CWA), and the agencies’ CWA implementing jurisdictional waters in a typical year that same instinct that you see in [the wetlands regulations.’’ This sentence is what is often used to are not jurisdictional under the final definition] and apply it to your definition of link the Rapanos Guidance to Appendix D, as the rule. Additionally, in keeping with the tributary and say, at some point, the definition of two were intended to operate in tandem, with other tributary has to have an end. Otherwise, you’re agency resources, to assist in guiding field agencies’ longstanding practice, the going to go and reach too far, beyond what Congress implementation of CWA jurisdictional final rule maintains that wetlands can reasonably intended.’’ Id. at 46. determinations.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22281

confusion associated with any changes portion of the coast which is in direct definition of navigable-in-fact waters in the agencies’ approach to traditional contact with the open sea and the line originates with the Supreme Court’s navigable water determinations. marking the seaward limit of inland decision in The Daniel Ball, 77 U.S. (10 The agencies have considered all of waters, and extending seaward a Wall.) 557 (1870). In that case, the the public comments received distance of three miles.’’ The territorial Supreme Court stated: addressing these topics and are seas establish the seaward limit of Those rivers must be regarded as public finalizing paragraph (a)(1) as proposed, ‘‘waters of the United States.’’ The navigable rivers in law which are navigable with slight modifications to address agencies did not propose including this in fact. And they are navigable in fact when questions regarding the inclusion of the definition in the rule because it is they are used, or are susceptible of being territorial seas within a single category already defined by statute and are not used, in their ordinary condition, as with traditional navigable waters. The including the definition or any further highways for commerce, over which trade agencies are not modifying the interpretation in the final rule. and travel are or may be conducted in the definition of ‘‘traditional navigable In this final rule, the agencies are customary modes of trade and travel on water. waters’’ as it has existed in regulatory streamlining the regulation so that the text for decades. As discussed in first category of jurisdictional waters Id. at 563. As explained by the Section II.G, when this final rule includes both traditional navigable Supreme Court in 2012, ‘‘[t]he Daniel becomes effective, certain agency waters and the territorial seas. Most Ball formulation has been invoked in guidance documents, memoranda, and commenters on this topic agreed with considering the navigability of waters materials (e.g., the 2003 SWANCC the proposal to combine the territorial for purposes of assessing federal Guidance and 2008 Rapanos Guidance) seas and traditional navigable waters regulatory authority under the will be rendered inoperative because into one paragraph of the regulation, Constitution, and the application of they will no longer be necessary or stating that it would streamline and specific federal statutes, as to the waters material, and they may in fact create simplify the definition of ‘‘waters of the and their beds.’’ PPL Montana, LLC v. confusion as the agencies implement United States,’’ and makes practical Montana, 565 U.S. 576, 592 (2012). this final rule. However, because the sense since the jurisdictional status of ‘‘With respect to the federal commerce agencies have not modified the other categories of waters relies on their power, the inquiry regarding navigation definition of ‘‘traditional navigable surface water connection to either a historically focused on interstate waters,’’ the agencies are retaining traditional navigable water or the commerce.’’ Id. at 593. The Supreme Appendix D to help inform territorial seas. Court further explained that, ‘‘of course, implementation of that provision of this In the proposed rule, the agencies the commerce power extends beyond final rule, as discussed further in included the territorial seas as a type of navigation’’ and cautioned ‘‘that the test Section III.B.2. traditional navigable water because the for navigability is not applied the same agencies had not identified an instance way’’ in all cases. Id. at 592–93; see also 2. Summary of Final Rule Rationale and in which a territorial sea would not also Kaiser Aetna v. United States, 444 U.S. Public Comment be considered traditionally navigable 164, 171 (1979) (‘‘[A]ny reliance upon The final rule defines ‘‘waters of the and thus proposed that the broader term judicial precedent [in this area] must be United States’’ to encompass traditional should suffice. A few commenters predicated upon careful appraisal of the navigable waters and the territorial seas. expressed concern that the proposed purpose for which the concept of The agencies’ existing definition of rule implied that the definition of navigability was invoked in a particular ‘‘waters of the United States’’ includes ‘‘waters of the United States’’ included case.’’ (internal quotation marks, all waters that are currently used, or only the portions of the territorial seas citation omitted, and emphasis in were used in the past, or may be that are navigable and capable of use in original)). But generally, navigability for susceptible to use in interstate or foreign interstate or foreign commerce. The purposes of federal regulatory authority commerce, including all waters which agencies did not intend to exclude any under the federal commerce power are subject to the ebb and flow of the portion of the territorial seas as the term encompasses waters that were ‘‘once tide. See, e.g., 33 CFR 328.3(a)(1). This is defined in CWA section 502(8), 33 navigable but are no longer,’’ PPL paragraph of the 2019 Rule (and U.S.C. 1362(8). To avoid any confusion, Montana, 565 U.S.at 592 (citing previous regulations) encompasses the agencies have made minor Economy Light & Power Co. v. United waters that are often referred to as modifications to the proposed rule text States, 256 U.S. 113, 123–24 (1921)), waters more traditionally understood as to further clarify that this category of ‘‘waters that only recently have become navigable or ‘‘traditional navigable foundational waters includes both navigable,’’ id. (citing Philadelphia Co. waters.’’ A separate paragraph of the traditional navigable waters and the v. Stimson, 223 U.S. 605, 634–35 2019 Rule (and previous regulations) territorial seas. The final rule states that (1912)), and waters that ‘‘are not lists the territorial seas as jurisdictional. the category of ‘‘waters of the United navigable and never have been but may See 33 CFR 328.3(a)(6). To streamline States’’ defined in paragraph (a)(1) become so by reasonable and simplify the definition of ‘‘waters of includes ‘‘the territorial seas, and water improvements,’’ id. at 592–93 (citing the United States,’’ the agencies are which are currently used, or were used United States v. Appalachian Elec. finalizing the rule as proposed to in the past, or may be susceptible to use Power Co., 311 U.S. 377, 407–08 (1940)). include both traditional navigable in interstate or foreign commerce, The agencies note that this summary waters and the territorial seas into a including waters which are subject to articulated by the Supreme Court in single paragraph of jurisdictional the ebb and flow of the tide.’’ 2012 generally reflects the basic waters. The final rule makes no other The agencies have not changed their structure of the longstanding substantive changes to these historically interpretation of traditional navigable jurisdictional test for ‘‘traditional regulated categories of waters. waters in this final rule, and the navigable waters’’ retained in paragraph The agencies note that the term agencies are retaining Appendix D to (a)(1) of the final rule. ‘‘territorial seas’’ is defined in CWA help inform implementation of this Many commenters expressed support section 502(8), 33 U.S.C. 1362(8), as provision with additional clarification for the agencies’ decision to retain the ‘‘the belt of the seas measured from the in this notice in response to comments. existing regulatory text describing line of ordinary low water along that As discussed in Section II.E, the traditional navigable waters. These

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22282 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

commenters stated that the existing text over navigation.’’ SWANCC, 531 U.S. at aggregate, substantially affects interstate is clear, concise, predictable, and well 168 & n.3. The agencies therefore are not commerce.’’ Id. at 173–74. The understood by the public. Other modifying the longstanding regulatory ‘‘substantial effects’’ test is the most commenters expressed concern about text for traditional navigable waters to expansive of the three primary bases for implementation of the regulation and specifically align it with the RHA test exercising congressional authority guidance and suggested modifications to for jurisdiction, as some commenters under the Commerce Clause articulated the regulation. Some commenters suggested. by the Supreme Court in United States suggested clarifying that traditional The agencies acknowledge that some v. Lopez, 514 U.S. 549, 558–59 (1995). navigable waters must be used to commenters suggested that Appendix D This application of the ‘‘substantial ‘‘transport commerce,’’ as that is the as-applied in certain circumstances has effects’’ test to assert CWA jurisdiction phrase Congress used to describe the led to confusion. For example, some over waters beyond those more waters over which the Corps retains commenters expressed concern that traditionally understood as navigable permitting authority when States and Appendix D could be read to support a was not intended by Appendix D and Tribes assume CWA section 404 conclusion that any water that can float has been rejected by the SWANCC Court permitting. See 33 U.S.C. 1344(g). As a boat, even very shallow draft vessels because it was inconsistent with discussed in Section II.E, and consistent like canoes and kayaks, is by definition Congress’ intent to exercise its more with a technical advisory committee ‘‘susceptible’’ to use in interstate traditional ‘‘commerce power over report submitted to EPA as part of an commerce and therefore may be deemed navigation.’’ SWANCC, 531 U.S. at 173 effort to modernize the section 404(g) a traditional navigable water. The & n.8. Thus, the legal principles assumption process (see n.28), section agencies believe that this interpretation summarized in Appendix D were not 404(g) refers to RHA section 10 waters. is inconsistent with the cases intended to endorse, and should not be Some commenters recommended that summarized in Appendix D and sweeps interpreted as endorsing, the application the agencies adopt the RHA section 10 too broadly. For example, whether a of the ‘‘substantial effects’’ test to CWA definition and the two-part legal test water is susceptible to use in interstate jurisdiction, or otherwise suggesting established by The Daniel Ball for commerce requires more than simply that the mere capacity to float a boat ‘‘navigable waters of the United States’’ being able to float a boat to establish makes a waterbody susceptible to as the test for ‘‘traditional navigable jurisdiction over navigable-in-fact commercial navigation. waters’’ for purposes of implementing waters under paragraph (a)(1); it The agencies intend to update their the term ‘‘waters of the United States’’ requires evidence of physical capacity guidance materials, if and as necessary, under the CWA. That test requires first for commercial navigation and that it as the agencies begin to implement the that a water be navigable-in-fact, and was, is, or actually could be used for revised tests for jurisdiction established second that commerce be transported that purpose. See, e.g., Appendix D by the final rule, both initially and as across State or foreign lines on those (citing The Montello, 87 U.S. 430, 441– the agencies gain field experience to waters. The Daniel Ball, 77 U.S. (10 42 (1874); United States v. Holt State address implementation questions that Wall.) at 563. Bank, 270 U.S. 49, 56 (1926); United may arise. As part of that process, the The Supreme Court has not spoken States v. Utah, 283 U.S. 64 (1931); agencies will continue to evaluate prior directly to the precise meaning of the United States v. Appalachian Elec. guidance on how to apply established phrase ‘‘traditional navigable waters’’ as Power Co., 311 U.S. 377, 416 (1940)). case law principles to traditional that term applies in the CWA context, Other commenters provided examples navigable water determinations. The but it has stated that the statutory ‘‘term of traditional navigable water agencies will also implement field determinations about which the ‘navigable’ has at least the import of elevation procedures should difficult commenters asserted that the capacity to showing us what Congress had in mind legal questions arise, including float a boat in a water that is near an as its authority for enacting the CWA: Its requiring such interpretations to be interstate highway was deemed traditional jurisdiction over waters that reviewed by senior legal staff at each of sufficient to make a traditional were or had been navigable in fact or the agencies’ respective headquarters. navigable water determination under which could reasonably be so made.’’ Implementation of this section of the the paragraph (a)(1) standard. This SWANCC, 531 U.S. at 172. In the traditional navigable waters provision of interpretation is inconsistent with the agencies’ view, the Supreme Court has paragraph (a)(1) in the final rule will be applicable case law, including the cases therefore signaled an acceptance of the case-specific, as it has always been. This discussed in Appendix D. Simply first prong of The Daniel Ball test. driving across a State line and using a case-specific analysis will include Whether the second prong applies in waterbody, or having the potential to relevant portions of EPA and Corps full to the administrative definition of use a waterbody, is similar to the theory regulations, prior determinations by the ‘‘traditional navigable waters’’ is less of jurisdiction that the Supreme Court Corps and by the federal courts, and clear, but the legislative history suggests specifically rejected in SWANCC. One case law. Should the agencies determine that Congress had in mind a more of the arguments raised in support of the that additional, more formal guidance expanded notion of interstate commerce ‘‘Migratory Bird Rule’’ for CWA on traditional navigable waters is when enacting the CWA, including jurisdiction was that individuals cross warranted, the agencies will develop overland links to commercial navigation any such guidance in compliance with 40 State lines and engage in commercial on navigable-in-fact waters. As activity to hunt or observe migratory Executive Order 13891, and with any described in Section II.E, the Supreme birds that use isolated waters as habitat. applicable public participation Court has stated that nothing in the See SWANCC, 531 U.S. at 166; id. at 195 requirements. legislative history of the Act suggests & n.17 (Stevens, J., dissenting). The C. Interstate Waters ‘‘that Congress intended to exert SWANCC Court rejected this anything more than its commerce power interpretation of CWA jurisdiction 1. What are the agencies finalizing? because it raised ‘‘significant Consistent with the proposal, this 40 See Section II.E for additional discussion of the complex legislative history on this topic, as well as constitutional questions’’ that would final rule removes interstate waters, the detailed discussion of the same in the Albrecht require the agencies to ‘‘evaluate the including interstate wetlands, as a & Nickelsburg article cited in note 25. precise object or activity that, in the separate category of ‘‘waters of the

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22283

United States.’’ The agencies are this category in the final rule. The part through the doctrine of finalizing this aspect of the proposal to agencies have concluded that the congressional acquiescence, in that more closely align the regulatory regulation of interstate waters as a Congress was aware of the EPA’s definition with the constitutional and standalone category is based on an retention of ‘‘interstate waters’’ as a statutory authorities reflected in the overly broad reading of the original separate category when amending the CWA and judicial interpretations of the Water Pollution Control Act (WPCA) of CWA in 1977 (making no amendments term ‘‘navigable waters,’’ while 1948 and lacks foundation in statutory to remove the agencies’ regulatory balancing the statute’s objective to text of the 1972 CWA amendments. The inclusion of interstate waters), and restore and maintain the integrity of the WPCA stated that the ‘‘pollution of therefore acquiesced to its inclusion as nation’s waters and its policy directives interstate waters in or adjacent to any a separate category. The agencies have to preserve and protect the rights and State or States (whether the matter also historically relied on two Supreme responsibilities of the States. causing or contributing to such Court cases—Illinois v. City of Many commenters supported the pollution is discharged directly into Milwaukee, 406 U.S. 91 (1972) and City removal of interstate waters and such waters or reaches such waters after of Milwaukee v. Illinois, 451 U.S. 304 wetlands as an independent category of discharge into a tributary of such (1981)—addressing interstate water ‘‘waters of the United States.’’ Those waters), which endangers the health or pollution to further support their prior commenters stated that such a category welfare of persons in a State other than interpretation. In the 1972 case, which was not authorized by the CWA and that in which the discharge originates, was decided prior to the date of the that, as proposed by the agencies, waters is hereby declared to be a public 1972 CWA amendments, the Supreme must be connected to traditional nuisance and subject to abatement as Court referred to the two categories in navigable waters to be jurisdictional herein provided.’’ WPCA of 1948, the disjunctive, implying that the Court under the CWA. Commenters also stated 2(d)(1), (4), 62 Stat. 1155, 1156–57. The viewed the pre-1972 statutory program that interstate waters and wetlands that statute defined ‘‘interstate waters’’ as as encompassing two separate actually fall within the scope of CWA ‘‘all rivers, lakes, and other waters that categories. See Illinois, 406 U.S. at 102 jurisdiction would be covered by the flow across, or form a part of, State (‘‘it is federal, not state, law that in the other categories of waters as proposed. boundaries.’’ Id. at 10(e), 62 Stat. 1161. end controls pollution of interstate or Other commenters opposed removing In 1961, Congress amended the statute navigable waters’’) (emphasis added). interstate waters as an independent to substitute the term ‘‘interstate or The 1981 case is described further jurisdictional category. Those navigable waters’’ for ‘‘interstate below. The agencies also have referred commenters stated that any water that waters’’ in the statute’s enforcement to section 303(a) of the CWA as further crosses a State line is by definition a provision while making minor changes evidence that Congress intended ‘‘water of the United States.’’ The same to the definition of ‘‘interstate waters.’’ ‘‘interstate waters’’ to be retained as an is true, some commenters added, for See Public Law 87–88, 75 Stat. 208 independent category of jurisdictional waters that cross tribal boundaries. (1961). In 1965, Congress again waters because that provision Additional commenters added that the amended the statute to require states to authorized water quality standards for proposed rule would arbitrarily narrow develop water quality standards for all ‘‘interstate waters’’ developed following the scope of CWA jurisdiction over ‘‘interstate waters’’ within their borders. the 1965 amendments to remain in ecologically important waters and See Public Law 89–234, 79 Stat. 908 effect, subject to revision under the new recommended that the agencies (1965). In 1972, Congress amended the statutory program. A more complete continue to regulate interstate waters. statute again and selected the term summary of the agencies’ prior legal Other commenters suggested that the ‘‘navigable waters’’ as the operative term position with respect to interstate exclusion for ephemeral features, if for the major regulatory programs waters was included in a Technical finalized, would help balance the established by the 1972 amendments, Support Document prepared in support inclusion of interstate waters as a dropping the definition of ‘‘interstate of the 2015 Rule (‘‘2015 Rule TSD’’).41 category. waters’’ from the statute. See, e.g., 33 The agencies now conclude that their The agencies have considered this U.S.C. 1362(7) (defining ‘‘navigable prior interpretation is inconsistent with diverse range of opinions, and for the waters’’ as ‘‘waters of the United the text and structure of the CWA. reasons discussed below, have States’’). In doing so, however, Congress When Congress enacted the 1972 concluded that the best interpretation of allowed States to retain existing water CWA amendments, it selected the term the CWA and its legislative history is to quality standards for interstate waters ‘‘navigable waters’’ to frame the scope of finalize the regulatory text as proposed, developed under the pre-1972 statutory federal regulatory jurisdiction under the without a separate interstate waters program. See 33 U.S.C. 1313(a). Act. Rather than interpreting those category. Interstate waters and interstate The EPA promulgated its first amendments as retaining ‘‘interstate wetlands remain subject to CWA regulatory definition for the term waters’’ as a separate and distinct jurisdiction under the final rule if they ‘‘waters of the United States’’ in 1973. category of ‘‘waters of the United are waters identified in paragraph (a)(1), 38 FR 13528 (May 22, 1973). In that States,’’ the agencies now conclude that (2), (3), or (4) (generally referred to as regulation, the EPA administratively a more natural interpretation of the 1972 ‘‘paragraph (a)(1) through (4) waters’’ or determined that ‘‘interstate waters’’ amendments is an express rejection of ‘‘a paragraph (a)(1) through (4) water’’ in should be a separate category of ‘‘waters that independent category, as Congress this notice). of the United States,’’ distinct from the had before it both options within the traditional navigable waters category, scope of the statute it was modifying. 2. Summary of Final Rule Rationale and and until this final rule the agencies had Congress specifically did not carry that Public Comment retained it as a separate category. term forward as the operative phrase for The agencies have evaluated their The agencies previously viewed earlier legal and policy rationales navigable and interstate waters as 41 U.S. EPA and U.S. Department of the Army. supporting the inclusion of interstate having distinct and separate meanings Technical Support Document for the Clean Water waters as a separate category of ‘‘waters because Congress in 1961 used both Rule: Definition of Waters of the United States (May 2015) (Docket ID: EPA–HQ–OW–2011–0880– of the United States’’ and comments on terms in the statute. The agencies 20869), available at https://www.regulations.gov/ the proposed rule and are not including explained their prior interpretation in document?D=EPA-HQ-OW-2011-0880-20869.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22284 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

federal jurisdiction. Under basic canons 4 (‘‘The setting of water quality iterations of the statute, referring to both of statutory construction, the agencies standards for interstate navigable waters interstate waters and navigable waters, begin with the presumption that . . . is the keystone of the present were replaced with a completely new Congress did so intentionally. See, e.g., program for control of water pollution.’’) program in 1972, not that certain Stone v. INS, 514 U.S. 386, 397 (1995) (emphasis added); id. (‘‘The States have aspects of that program continued (‘‘When Congress acts to amend a first responsibility for enforcement of through congressional acquiescence in a statute, we presume it intends its their standards. When approved by the later regulatory determination. The final amendment to have real and substantial [EPA], however, the standards for rule therefore eliminates ‘‘interstate effect.’’). interstate navigable waters become waters’’ as a separate category of Congressional acquiescence is a Federal-State standards.’’) (emphasis ‘‘waters of the United States.’’ doctrine of limited application and was added). In fact, the legislative history By eliminating a separate category for specifically rejected as a basis for suggests that Congress modified the text interstate waters, the final rule adheres expansive federal jurisdiction in of the statute in 1972 in part because the to the legal principles discussed in SWANCC in the context of analyzing the States had narrowly interpreted the Section II.E by including within the Corps’ 1977 regulations. SWANCC, 531 phrase ‘‘interstate’’ to apply only to definition of ‘‘waters of the United U.S. at 170–71 (‘‘Although we have interstate navigable waters and had States’’ traditional navigable waters, the recognized congressional acquiescence failed to establish water quality territorial seas, and waters subject to the to administrative interpretations of a standards for the intrastate tributaries to ebb and flow of the tide; tributaries to statute in some situations, we have done such waters. See, e.g., id. at 77 (‘‘The such waters; certain lakes, ponds, and so with extreme care.’’). The plurality control strategy of the Act extends to impoundments of otherwise opinion in Rapanos further elaborated, navigable waters .... Through a jurisdictional waters; and wetlands when also rejecting the notion that narrow interpretation of the definition adjacent to jurisdictional waters. Congress acquiesced to the Corps’ 1977 of interstate waters the implementation Because the agencies’ authority flows regulations, that ‘‘Congress takes no [of the] 1965 Act was severely from Congress’ use of the term governmental action except by limited.’’); 118 Cong. Rec. 10240 (1972) ‘‘navigable waters’’ in the CWA, the legislation. What the dissent refers to as (the amendment ‘‘expands the coverage agencies lack authority to regulate ‘Congress’ deliberate acquiescence’ of the law to intrastate, as well as waters untethered from that term. should more appropriately be called interstate navigable waterways’’) Nothing in the legislative history of the Congress’s failure to express any (emphasis added). In 1976, the Supreme 1972 CWA amendments ‘‘signifies that opinion.’’ Rapanos, 547 U.S. at 750 Court shared the same view of the pre- Congress intended to exert anything (Scalia, J., plurality). The plurality 1972 statutory scheme: ‘‘Before it was more than its commerce power over explained that we cannot know whether amended in 1972, the Federal Water navigation.’’ SWANCC, 531 U.S. at 168 Congress’ inaction resulted from their Pollution Control Act employed n.3. Therefore, those interstate waters that belief that the Corps’ regulations were ambient water quality standards would satisfy the definitions in this correct, or from other reasons, such as specifying the acceptable levels of final rule are jurisdictional; interstate confidence that courts would correct pollution in a State’s interstate waters without any surface water excesses or political considerations. See navigable waters as the primary connection to traditional navigable SWANCC, 531 U.S. at 169–70, 178 n.5 mechanism in its program for the waters or the territorial seas are not (‘‘Absent such overwhelming evidence control of water pollution.’’ EPA v. of acquiescence, we are loath to replace within the agencies’ authority under the California, 426 U.S. 200, 202 (1976) the plain text and original CWA and are more appropriately (emphasis added) (footnote omitted). understanding of a statute with an regulated by the States and Tribes under This history suggests that the section amended agency interpretation.’’). The their sovereign authorities. 303(a) provision relating to existing agencies now conclude, consistent with The agencies’ rationale is supported water quality standards for ‘‘interstate the admonitions of SWANCC and the by the U.S. District Court for the waters’’ was referring to ‘‘interstate Rapanos plurality, that the doctrine of Southern District of Georgia’s remand navigable waters,’’ not interstate waters congressional acquiescence is not a order. Georgia v. Wheeler, No. 2:15–cv– more broadly. sound basis to guide the agencies’ 00079, 2019 WL 3949922 (S.D. Ga. Aug. decision regarding the scope of federal Neither Supreme Court case 21, 2019). There, the court directly jurisdiction over certain waters in this previously relied on by the agencies and addressed the 2015 Rule’s assertion of final rule, particularly as it applies to discussed in the 2015 Rule TSD authority over all interstate waters, interstate waters divorced from any addressed the specific question whether including nonnavigable interstate notion of commercial navigability. ‘‘interstate waters’’ and ‘‘navigable waters. Id. at *10–13. The court found The legislative history of the 1972 waters’’ are separate and distinct that ‘‘the inclusion of all interstate amendments, in fact, supports the categories of jurisdictional waters under waters in the definition of ‘waters of the agencies’ conclusion that Congress did the CWA. They instead addressed United States,’ regardless of not consider interstate waters and interstate water pollution generally, and navigability, extends the Agencies’ navigable waters to be two separate and the water at issue in those cases was jurisdiction beyond the scope of the distinct categories, and instead referred Lake Michigan, an interstate navigable- CWA because it reads the term to terms in the pre-1972 statutory in-fact water. The 1981 decision, navigability out of the CWA.’’ Id. at *12. regime conjunctively as ‘‘interstate however, did recognize that the 1972 The court also found that, because the navigable waters.’’ S. Rep. No. 92–414, amendments ‘‘were viewed by Congress 2015 Rule would assert jurisdiction over at 2 (1971) (‘‘Each State was required by as a ‘total restructuring’ and ‘complete tributaries, adjacent waters, and case-by- the 1965 Act to develop standards for rewriting’ of the existing water pollution case waters based on their relationship water quality within its boundaries. legislation considered in that case.’’ to non-navigable isolated interstate These standards were to be applied to Milwaukee, 451 U.S. at 317 (citing waters, it would result in federal all interstate navigable waters flowing legislative history of the 1972 CWA jurisdiction over even the most remote through the State; intrastate waters were amendments). This supports the and isolated waters that the Supreme not included.’’) (emphasis added); id. at agencies’ conclusion that prior Court held in SWANCC are beyond the

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22285

reach of the CWA. Id. at *13. The in the 2015 Rule TSD. The agencies the facts of the case before it—whether agencies agree with the court’s analysis disagree, as the proposal clearly NPDES permits issued by an authorized and conclusion. identified independent reasons State in compliance with the CWA This final rule marks a shift away questioning the validity of the agencies’ could be modified or augmented by from prior agency positions. The prior interpretation. The agencies’ 2015 federal common law claims brought by agencies received public comment that Rule TSD, for example, included three a downstream State. Focusing on the proposal had failed to analyze primary arguments supporting the prior respondents’ claims that discharges potential impacts resulting from the interpretation: First, the language, from the facilities were causing a public removal of ‘‘interstate waters’’ as a structure, and history of the CWA nuisance, the Court observed that, ‘‘the separate category, but as noted in the demonstrate that Congress intended to action of Congress in supplanting the preamble to the proposed rule, the include interstate waters in addition to federal common law is perhaps clearest agencies are not aware of any database navigable waters; second, the Supreme when the question of effluent that identifies the jurisdictional status of Court decisions in Rapanos and limitations for discharges from the two interstate waters based solely on the fact SWANCC did not constrain CWA treatment plants is considered.’’ City of that they cross state lines, or any other jurisdiction over isolated, nonnavigable, Milwaukee, 451 U.S. at 319–20. The resource that would identify these interstate waters; and third, Supreme Court identified the numerous waters. The agencies therefore lack the Court precedent supports jurisdiction provisions of the permits that addressed ability to perform a comparative over interstate waters, regardless of discharges and overflows from the analysis with any precision. Some navigability. These arguments are facilities, and the State-initiated commenters provided examples of addressed in the proposal and in earlier enforcement action contemplated by the interstate waters that may lose sections of this notice, but the agencies CWA, and concluded that ‘‘[t]here is no jurisdictional status if the separate provide additional detail to respond to ‘interstice’ here to be filled by federal category is eliminated; however, the comments received as follows. common law: Overflows are covered by Corps’ ORM2 database does not contain The 2015 Rule TSD analyzed two the Act and have been addressed by the any jurisdictional determinations based Supreme Court decisions to support its regulatory regime established by the solely on a water’s status as an interstate conclusion that interstate waters should Act. Although a Federal court may water. Since issuance of the Rapanos be a separate category of jurisdiction disagree with the regulatory approach Guidance, the Corps has not tracked this under the CWA. The first decision was taken by the agency . . . such category separately for approved issued in 1972, just prior to the 1972 disagreement alone is no basis for the jurisdictional determinations conducted CWA amendments, and concluded that creation of federal common law.’’ Id. at under the Guidance in ORM2. federal common law was appropriate to 323. The agencies requested comment on resolve a cross-border water pollution The Court also noted that in its 1972 the rationales in favor of and opposed dispute among states where existing decision, the Court was concerned that to a separate jurisdictional category for statutes did not address the dispute. the downstream State ‘‘did not have any ‘‘interstate waters.’’ Some commenters Illinois, 406 U.S. 91. The Court found forum in which to protect its interests supported the proposal to remove that where ‘‘no fixed rules’’ govern unless federal common law were ‘‘interstate waters’’ as a separate cross-boundary pollution disputes, created,’’ City of Milwaukee, 541 U.S. at category, noting that there is no ‘‘these will be equity suits in which the 325, but that the NPDES permitting statutory or constitutional basis to informed judgment of the chancellor provisions of the 1972 amendments regulate interstate waters that would not will largely govern.’’ Id. at 107–08. ‘‘provided ample opportunity for a State otherwise be jurisdictional and The second decision was issued in affected by decisions of a neighboring suggesting that the agencies lacked the 1981, and it analyzed the effect of the State’s permit-granting agency to seek authority to include a separate 1972 amendments on a federal common redress.’’ Id. at 325–26 (identifying the ‘‘interstate’’ category in earlier versions law claim concerning the same cross- CWA requirement to provide notice to of the regulations. Other commenters border water pollution dispute that was affected States and opportunity to opposed the proposal, asserting that the presented the 1972 case. City of comment and request public hearings, text and structure of the CWA, Milwaukee, 451 U.S. 304. In that case, the Wisconsin law that provides the legislative history, and prior court cases, the Court acknowledged the 1972 same, affected States’ opportunity under including Justice Scalia’s discussion in amendments and noted that ‘‘[t]he the CWA to petition the EPA to object Rapanos, demonstrate that the CWA establishment of such a self-consciously to a NPDES permit, and noting that applies to interstate waters regardless of comprehensive program by Congress, respondents did not take advantage of navigability. The agencies considered which certainly did not exist when these provisions). The case therefore these comments and, for the reasons Illinois v. Milwaukee was decided, presented a dispute between States explained above, conclude that the final strongly suggests that there is no room concerning NPDES permits lawfully rule most closely aligns with the for courts to attempt to improve on that issued for discharges into an otherwise agencies’ constitutional and statutory program with federal common law.’’ Id. authorities reflected in the CWA and at 319 (emphasis added). was the ‘comprehensive regulatory program’ that relevant judicial interpretations of the Contrary to the assertions in the 2015 ‘occupied the field’ (451 U.S. 317) with regard to term ‘‘navigable waters’’ and the interstate water pollution, eliminating the basis for Rule TSD, however, the Court did not an independent common law of nuisance to address legislative history of the CWA, while conclude that the CWA occupies the interstate water pollution.’’). The 2015 Rule TSD balancing the statute’s objective to field with regard to all interstate also asserts that the Court ‘‘expressly overruled’’ its restore and maintain the integrity of the 42 decision in Illinois; however, a more precise waters. Instead, the Court considered statement would be that the Court found no federal nation’s waters and its policy directives common law remedy available ‘‘at least so far as to preserve and protect the rights and 42 See U.S. EPA and Department of the Army, concerns the claims of respondents’’ because responsibilities of the States. Technical Support Document of the EPA-Army Congress occupied the field with a federal Some commenters stated that the Clean Water Rule at 210 (May 20, 2015) (‘‘2015 Rule regulatory program that establishes effluent limits agencies did not provide sufficient TSD’’) (Docket ID: EPA–HQ–OW–2011–0880– and other specific requirements that supersede the 20869) available at https://www.regulations.gov/ ‘‘often vague and indeterminate nuisance concepts rationale for deviating from their prior document?D=EPA-HQ-OW-2011-0880-20869. (‘‘In and maxims of equity jurisprudence.’’ City of analysis and interpretation, as provided City of Milwaukee, the Court found that the CWA Milwaukee, 451 U.S. at 317 (emphasis added).

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22286 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

navigable water—Lake Michigan. The role as a co-regulator in cross-boundary Admin. Code. 203.03 (providing notice Supreme Court did not consider disputes over water quality. during the NPDES process to other disputes outside of the NPDES permit The CWA provides two opportunities agencies, including other States program or those concerning non- for the EPA to mediate disputes among potentially affected by the discharge). navigable interstate waters, and the States: The section 401(a)(2) This important fact supports the Court did not broadly conclude that the neighboring jurisdiction notification agencies’ conclusion that all States CWA occupies the field of all interstate provisions for federally permitted protect their water resources under State water pollution.43 All it had before it projects that may discharge to navigable law and many have the ability and was the CWA, and as discussed in waters and the section 319(g) provisions expertise to do so in the absence of Section II, Congress chose not to allowing the EPA to convene an federal regulation, as discussed in more exercise its full powers under the interstate management conference to detail in the Resource and Programmatic Commerce Clause when enacting the address cross-boundary nonpoint Assessment for the final rule. As they do 1972 amendments. Congress specifically pollution in navigable waters. In the today, remedies for pollution disputes recognized that there are other land and past, these provisions have been among States that do not implicate CWA water resources that are more invoked infrequently by States, and the sections 319(g), 401, or 402 would likely appropriately regulated by the States agencies do not expect a significant derive from federal common law under and Tribes under their sovereign increase in cross-boundary disputes as a the Supreme Court’s original authorities. Field preemption cannot result of this rulemaking. In addition, jurisdiction. See, e.g., Illinois, 406 U.S. extend beyond the field. Hines v. the EPA can address concerns of States at 98–99. Remedies for disputes Davidowitz, 312 U.S. 52, 78–79 (1941) whose waters may be affected by the between a State and a public or private issuance of a permit in another State (‘‘[e]very Act of Congress occupies some party would likely derive from State or through the permit objection process field, but we must know the boundaries federal common law and be heard by pursuant to CWA sections 402(b)(5), of that field before we can say that it has State or Federal courts. See id. at 100, 402(d)(d), and 40 CFR 123.44(c)(2). As precluded a state from the exercise of 107–08; International Paper, 479 U.S. at demonstrated in City of Milwaukee, if a any power reserved to it by the 497–500. cross-boundary dispute is one that is Constitution’’); see also Gonzales v. contemplated and addressed by the D. Tributaries Oregon, 546 U.S. 243, 275 (2006); CWA, such as the sufficiency of effluent Medtronic, Inc. v. Lohr, 518 U.S. 470, 1. What are the agencies finalizing? limits in a NPDES permit, the statute 475 (1996); Metropolitan Life Ins. Co. v. has occupied the field and federal In this final rule, the agencies retain Massachusetts, 471 U.S. 724, 756 common law does not provide a ‘‘tributaries’’ as a category of (1985)). remedy. 451 U.S. at 317. However, if a jurisdictional waters subject to CWA The agencies also requested comment State NPDES permit or a section 401 jurisdiction. The final rule defines on an alternative approach that would certification is not required, the EPA ‘‘tributary’’ to mean a river, stream, or retain ‘‘interstate waters’’ as a separate does not have a role within the CWA similar naturally occurring surface category, reflecting longstanding agency permitting framework to address cross- water channel that contributes surface practice, and whether the term boundary disputes; similarly, if a water water flow to the territorial seas or ‘‘interstate’’ should be interpreted as is not a ‘‘water of the United States,’’ traditional navigable waters (paragraph crossing between States, between States then the EPA’s conference convening (a)(1) waters) in a typical year either and tribal lands, between States and/or authorities under section 319(g) would directly or through one or more tribal lands and foreign countries, or not apply. In addition, and as described tributaries (paragraph (a)(2) waters), other formulations. Some commenters in the Section II.B of this notice, the lakes, ponds, and impoundments of opposed this alternative approach, CWA provides the EPA with numerous jurisdictional waters (paragraph (a)(3) stating that the agencies lacked the other authorities to provide technical waters), or adjacent wetlands (paragraph authority to codify or implement it. assistance to States and Tribes to (a)(4) waters). A tributary must be Other commenters supported retaining facilitate the management of non- perennial or intermittent in a typical year. The alteration or relocation of a ‘‘interstate waters’’ as a separate jurisdictional waters.44 category and expressed concern that Under the current framework, the tributary does not modify its removing it would eliminate the EPA’s remedies available for cross-boundary jurisdictional status as long as it water pollution disputes over non- continues to satisfy the flow conditions 43 In a footnote, the 2015 Rule TSD identifies two jurisdictional waters depends upon the of this definition. A tributary does not other Supreme Court decisions and concludes that parties and the issues in the case. As an lose its jurisdictional status if it ‘‘[n]othing in either decision limits the applicability initial matter, many State programs contributes surface water flow to a of the CWA to interstate water pollution disputes downstream jurisdictional water in a involving navigable interstate waters or interstate regulate more waters than are covered waters connected to navigable waters.’’ 2015 Rule by the federal definition of ‘‘waters of typical year through a channelized non- TSD at 211 n.16 (referencing International Paper v. the United States’’ and may have similar jurisdictional surface water feature, Ouellette, 479 U.S. 481 (1987), and Arkansas v. notification provisions in place for through a subterranean river, through a Oklahoma, 503 U.S. 91 (1992)). Similar to the facts culvert, dam, tunnel, or similar artificial of City of Milwaukee, both of these cases addressed States affected by a State-issued NPDES disputes that arose in the CWA’s NPDES permitting permit. See e.g., Wis. Stat. 281.33 feature, or through a debris pile, boulder context for waters that would otherwise be (authorizing Wisconsin to issue NPDES field, or similar natural feature. jurisdictional—Lake Champlain and the Illinois As discussed in greater detail in permits for all waters of the State); Wis. River. In neither case was the Court asked to Section III.E, the term ‘‘tributary’’ consider whether or how the CWA may apply to non-navigable interstate waters, and these cases do 44 In addition, the notion that categorical federal includes a ditch that either relocates a not provide useful context or precedent on that regulation of interstate waters is necessary to end tributary, is constructed in a tributary, issue. The 2015 Rule TSD similarly concluded that water pollution disputes between States would call or is constructed in an adjacent wetland neither SWANCC nor Rapanos addressed or limited into the question the need for CWA section 103 as long as the ditch satisfies the flow CWA jurisdiction over non-navigable interstate (‘‘Interstate Cooperation and Uniform Laws’’), 33 conditions of the ‘‘tributary’’ definition. waters. See Section II.E of this notice for the U.S.C. 1253, which establishes a framework for the agencies’ detailed analysis of the SWANCC and Administrator to encourage cooperation between A ditch can also be a traditional Rapanos decisions. States for the prevention and control of pollution. navigable water if it meets the

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22287

conditions of that category. The subject to CWA jurisdiction, as meaning of the term ‘‘waters.’’ In agencies are excluding all other ditches evidenced by the fractured opinion in addition, the agencies are adhering to from the definition of ‘‘waters of the Rapanos. What is clear from that their constitutional and statutory United States,’’ other than those opinion, however, is that a majority of authority regarding the role of the identified in paragraph (a)(1) or (2) and the Court believed the agencies’ existing Federal government and limits on its ditches any portion of which are standard for tributaries at that time authority to regulate the use of land and constructed in an adjacent wetland that raised serious questions regarding the waters within State and tribal lack perennial or intermittent flow scope of the agencies’ authority under boundaries, and their intention to (meaning they do not satisfy the the CWA. See Section II.E.2. establish a clear and easily ‘‘tributary’’ definition in paragraph The agencies proposed a definition for implementable definition. The (c)(12)) but that develop wetlands in all ‘‘tributary’’ that they believed respected definition of ‘‘tributary’’ in the final rule or portions of the ditch that satisfy the their statutory and constitutional sets a boundary on the scope of the ‘‘adjacent wetlands’’ definition in authorities, consistent with principles regulation to ensure that it is consistent paragraph (c)(1). Excluded ditches may established in Riverside Bayview, with the role of the Federal government be subject to regulation under State or SWANCC, and Rapanos. Many under the Constitution and the CWA. As tribal law and could potentially be commenters agreed with the proposal, the Supreme Court recognizes, States conveyances of discharges of pollutants indicating that it balanced federal traditionally exercise ‘‘primary power from ‘‘point sources’’ subject to CWA authority over the core waters targeted over land and water use,’’ SWANCC, permitting (see 33 U.S.C. 1362(14)) if by Congress under the CWA with waters 531 U.S. at 174. The Federal they convey pollutants from a that are more appropriately regulated government should avoid pressing discharger to jurisdictional waters. solely by the States and Tribes. Others against the outer limits of its authority Regardless of the name they are given argued that the proposed ‘‘tributary’’ when doing so would infringe upon the locally (e.g., creek, bayou, branch, definition regulated too broadly, traditional rights and responsibilities of brook, run), or their size (e.g., discharge preferring instead that the agencies States to manage their own waters. See volume, width, depth, stream order), restrict jurisdiction to perennial id. at 172–73 and supra Section II.E. waters that meet the definition of tributaries only. Others argued that the Under this final rule, a tributary must ‘‘tributary’’ are jurisdictional under this agencies failed to regulate ecologically be perennial or intermittent, and it must final rule. Surface features that flow important ephemeral reaches and cut off contribute surface water flow in a only in direct response to precipitation, jurisdiction to headwater reaches that such as ephemeral streams, swales, are important to the tributary network. typical year to a traditional navigable gullies and rills, are not tributaries. The agencies have considered all water or territorial sea directly or These features lack the required comments received and have crafted a through one or more waters identified in perennial or intermittent flow to satisfy final regulatory definition of ‘‘tributary’’ paragraph (a)(2), (3), or (4) (generally the ‘‘tributary’’ definition and therefore designed to adhere to the legal referred to as ‘‘paragraph (a)(2) through are not jurisdictional. However, such principles articulated in this notice and (4) waters’’ or ‘‘a paragraph (a)(2) features may convey surface water flow that provides a predictable, through (4) water’’ in this notice), or from an upstream jurisdictional water to implementable regulatory framework. through one or more of the features a downstream jurisdictional water The agencies are finalizing their described in Section III.A.3. The without severing jurisdiction of the proposal to regulate perennial and ‘‘tributary’’ category includes waters tributary. intermittent tributaries to traditional that, due to their relatively permanent The regulatory status of tributaries has navigable waters, while excluding flow classifications and their evolved over the last several decades, ephemeral streams from CWA contribution of surface water flow to resulting in confusion for the regulated jurisdiction as those features are more paragraph (a)(1) waters, are community and regulators alike. Some appropriately regulated by States and appropriately regulated under the commenters said that all channels on Tribes under their sovereign authorities. Commerce Clause powers that Congress the landscape that convey water, However, the agencies have modified exercised when enacting the CWA. The regardless of flow regime, should be the final rule to reduce the instances in agencies have concluded that their subject to CWA regulation, including which natural and artificial features and regulatory authority under the CWA and both natural and artificial channels. structures sever jurisdiction of upstream Supreme Court precedent is most Others asserted that Congress intended waters, as discussed in Section III.A.3 appropriately interpreted to encompass to regulate only traditional navigable and in more detail below. The agencies the perennial and intermittent flow waters, and navigable tributaries to conclude that interpreting upstream classifications provided in the those waters. Some would regulate all waters that contribute surface water definition of ‘‘tributary,’’ and that this ditches, while others would exclude all flow in a typical year to a paragraph approach also balances the regulation of ditches from CWA jurisdiction. Some (a)(1) water to be part of the regulated the Federal government with the stated that all ephemeral washes should tributary network better balances the authority of States and Tribes to more be regulated, while others viewed CWA’s objective in section 101(a) with appropriately regulate certain waters ephemeral features as more like land the need to respect State and tribal within their jurisdiction, such as that is wet after it rains. Some would authority over land and water resources ephemeral streams. The agencies have extend jurisdiction to perennial rivers as mandated by Congress in section also concluded that this definition and streams and cut off jurisdiction for 101(b). effectively furthers both the objective of intermittent or seasonal waters. Others the Act to ‘‘restore and maintain the would regulate intermittent waters 2. Summary of Final Rule Rationale and chemical, physical, and biological based on a minimum number of days of Public Comment integrity of the nation’s waters’’ and the continuous flow, such as 30, 90, or 185. The definition of ‘‘tributary’’ in the ‘‘policy of Congress to recognize, Even the Supreme Court has struggled final rule reflects the authority granted preserve, and protect the primary with articulating clear principles by Congress to regulate navigable waters responsibilities and rights of States to governing which tributaries to and the interconnected nature of the prevent, reduce, and eliminate pollution traditional navigable waters should be tributary system, as well as the ordinary [and] to plan for the development and

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22288 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

use (including restoration, preservation, that tributary streams are connected to between those tributaries and paragraph and enhancement) of land and water downstream waters,’’ the SAB stressed (a)(1) waters. 547 U.S. at 780 (Kennedy, resources . . . .’’ 33 U.S.C. 1251(b); see that ‘‘the EPA should recognize that J., concurring in the judgment). The also Rapanos, 547 U.S. at 737 (Scalia, J., there is a gradient of connectivity.’’ SAB agencies acknowledge that science alone plurality). The agencies’ approach to Review at 3. The SAB recommended cannot dictate where to draw the line defining ‘‘tributary’’ is also intended to that ‘‘the interpretation of connectivity between Federal and State waters, as ensure that federal regulatory be revised to reflect a gradient approach those are legal distinctions that have jurisdiction does not intrude upon State, that recognizes variation in the been established within the overall tribal, and local control of land and frequency, duration, magnitude, framework and construct of the CWA. water use decisions. See Rapanos, 547 predictability, and consequences of The agencies also relied on scientific U.S. at 738 (Scalia, J., plurality) physical, chemical, and biological principles, as appropriate and within (‘‘Regulation of land use, as through the connections.’’ Id. at 2 (emphasis added). the agencies’ statutory limits, to inform issuance of the development permits To describe the ‘‘connectivity gradient’’ several other aspects of this final rule, . . . is a quintessential state and local and the probability that impacts including, for example, how the power.’’). With this final definition, the occurring along the gradient will be agencies define the flow classifications agencies seek to avoid ‘‘impairing or in transmitted downstream, the SAB (perennial, intermittent, ephemeral) any manner affecting any right or developed a figure as part of its review used throughout the regulation, the jurisdiction of the States with respect to of the Draft Connectivity Report. See id. incorporation of inundation and the waters (including boundary waters) at 54 figure 3. The figure illustrates the flooding to create surface water of such States.’’ 33 U.S.C. 1370. connectivity gradient and potential connections, and the use of the typical A clear regulatory line between consequences between perennial, year concept that relies upon a large jurisdictional and excluded waters has intermittent, and ephemeral streams and body of precipitation and other climatic the additional benefit of being less downstream waters and depicts a data to inform what may be within a complicated than prior regulatory decreased ‘‘probability that changes . . . normal range for a particular geographic regimes that required a case-specific will be transmitted to downstream region. The agencies will also rely on significant nexus analysis. Ephemeral waters’’ at flow regimes less than science to implement the final rule, features, such as dry washes and perennial and intermittent. Id. While such as with the development of tools arroyos, that lack the perennial or the SAB stated that ‘‘at sufficiently large and scientific-based approaches to intermittent flow necessary to satisfy the spatial and temporal scales, all waters identify flow classification and typical ‘‘tributary’’ definition under this final and wetlands are connected,’’ it found year conditions. rule are excluded from the definition. that ‘‘[m]ore important are the degree of Thus, contrary to the assertions of some commenters, the agencies’ Although the agencies are not regulating connection (e.g., frequency, magnitude, decisions in support of this final rule features that flow only in direct timing, duration) and the extent to have been informed by science. The response to precipitation, certain which those connections affect the agencies therefore agree with other ephemeral features can convey surface chemical, physical, and biological commenters who stated that the water flow that is sufficient to maintain integrity of downstream waters.’’ Id. at agencies appropriately balanced the jurisdictional status of the upstream 17. tributary reach, as discussed in Section science, policy, and the law when III.A.3. States and Tribes may also The SAB, however, recognized that crafting the proposed rule. But to be address ephemeral features as ‘‘waters ‘‘[t]he Report is a science, not policy, clear, as discussed in the preamble to of the State’’ or ‘‘waters of the Tribe’’ document that was written to the proposed rule, 84 FR 4176, and in under their own laws to the extent they summarize the current understanding of Section II.E of this notice, science deem appropriate, as envisioned under connectivity or isolation of streams and cannot dictate where to draw the line section 101(b) of the CWA. In addition, wetlands relative to large water bodies between Federal and State or tribal an ephemeral feature may convey a such as rivers, lakes, estuaries, and waters, as those are legal distinctions discharge of pollutants from a point oceans.’’ id. at 2. ‘‘The SAB also that have been established within the source to a water of the United States. recommended that the agencies clarify overall framework and construct of the See Rapanos, 547 U.S. at 743–44 in the preamble to the final rule that CWA. The definition of ‘‘waters of the (Scalia, J., plurality). ‘significant nexus’ is a legal term, not a United States’’ must be grounded in a Some commenters stated that the scientific one.’’ 80 FR 37065. And in legal analysis of the limits on CWA agencies’ proposal for tributaries is not issuing the 2015 Rule, the agencies jurisdiction reflected in the statute and supported by science and is inconsistent stated, ‘‘the science does not provide a Supreme Court guidance. with the CWA and judicial precedent. precise point along the continuum at By defining perennial and The agencies disagree. As discussed in which waters provide only speculative intermittent tributaries of traditional the preamble to the proposed rule, the or insubstantial functions to navigable waters as jurisdictional and agencies relied on the available science downstream waters.’’ Id. at 37090. Thus, ephemeral features as non- to help inform where to draw the line the agencies use the Connectivity Report jurisdictional, the agencies balance of federal jurisdiction over tributaries, to inform certain aspects of the revised Congress’ intent to interpret the term consistent with their statutory definition of ‘‘waters of the United ‘‘navigable waters’’ more broadly than authorities. See 84 FR 4175 (‘‘This States,’’ such as recognizing the the classical understanding of that term, proposed definition [of tributary] is also ‘‘connectivity gradient’’ and potential see Riverside Bayview, 474 U.S. at 133, informed by the science.’’) As noted in consequences between perennial, with the fact that nothing in the that preamble, while the SAB found that intermittent, and ephemeral streams and legislative history of the Act ‘‘signifies the draft Connectivity Report ‘‘provides downstream waters within a tributary that Congress intended to exert anything strong scientific support for the system. The ‘‘tributary’’ definition that more than its commerce power over conclusion that ephemeral, intermittent, the agencies are finalizing, which takes navigation.’’ SWANCC, 531 U.S. at 168 and perennial streams exert a strong into consideration the connectivity n.3. The final rule’s definition of influence on the character and gradient, ‘‘rests upon a reasonable ‘‘tributary’’ is also consistent with the functioning of downstream waters and inference of ecological interconnection’’ Rapanos plurality’s position that ‘‘ ‘the

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22289

waters of the United States’ include that a tributary be perennial or conditions, such as a tributary that only relatively permanent, standing, or intermittent and be connected to a becomes a losing stream for a reach, but flowing bodies of waters . . . as traditional navigable water is reasonable then becomes perennial again opposed to ordinarily dry channels . . . and reflects the plurality’s description downstream of the losing reach. The or ephemeral flows of water.’’ Rapanos, of a ‘‘ ‘wate[r] of the United States’ ’’ as losing reach could occur because of 547 U.S. at 732–33 see also id. at 736 ‘‘i.e., a relatively permanent body of water infiltrating into the ground and n.7 (‘‘[R]elatively continuous flow is a water connected to traditional interstate recharging groundwater, where the necessary condition for qualification as navigable waters.’’ Id. at 742. water table is below the bottom of the a ‘water,’ not an adequate condition’’ Under the proposed definition of channel bed. (emphasis in original)). Perennial ‘‘tributary,’’ an artificial or natural The final rule also allows for other waters, by definition, are permanent. ephemeral feature would have severed types of artificial or natural features, And while the plurality did note that jurisdiction upstream of the feature, such as dams or boulder fields, which waters of the United States do not because the waterbody would not may maintain jurisdiction so long as include ‘‘ordinarily dry channels contribute surface water to a paragraph they convey surface water flow from an through which water occasionally or (a)(1) water on a perennial or upstream tributary to a downstream intermittently flows,’’ id. at 733, the intermittent basis. Several commenters jurisdictional water in a typical year. plurality would ‘‘not necessarily supported this approach, noting that The agencies have determined in this exclude seasonal rivers, which contain waters above ephemeral breaks are more final rule that such conditions do not continuous flow during some months of appropriately subject to State or tribal sever jurisdiction for the upstream reach the year but no flow during dry jurisdiction. Others criticized the of the tributary if a channelized non- months.’’ Id. at 732 n.5 (emphasis in approach as too restrictive and raised jurisdictional surface water feature original); compare id. at 770 (Kennedy, concerns regarding the importance of conveys surface water flow to a J., concurring in the judgment) (‘‘an those upstream waters to the tributary downstream jurisdictional water in a intermittent flow can constitute a stream system. The agencies recognize that the typical year. The agencies have . . . while it is flowing . . . [i]t follows proposed rule’s treatment of ephemeral concluded that water flowing through that the Corps can reasonably interpret features would have severed jurisdiction features such as dams or boulder fields the Act to cover the paths of such for certain relatively permanent bodies can sustain a regular and predictable impermanent streams’’). The agencies of water that are regularly ‘‘connected surface water connection between note that intermittent waters may occur to’’ traditional navigable waters in a upstream and downstream waters and seasonally, for example, during times typical year via channelized surface therefore can maintain jurisdiction when groundwater tables are elevated or water flow through those features. The between such waters. In all cases, when snowpack runoff produces final rule has been modified to address however, the excluded or ephemeral relatively permanent flow, returning on these concerns regarding ephemeral feature remains non-jurisdictional. an annual basis in known, fixed breaks between two relatively Certain other excluded features are geographic locations. permanent waters while remaining incapable of providing channelized faithful to the text, structure, and surface flow (e.g., groundwater, diffuse By defining ‘‘tributary’’ as perennial legislative history of the CWA and stormwater run-off, or directional sheet or intermittent rivers and streams that Supreme Court guidance. flow over upland) and therefore sever contribute surface water flow to As discussed in Section III.A.3, the jurisdiction upstream of such excluded traditional navigable waters or the final rule provides that channelized features. territorial seas in a typical year, the non-jurisdictional surface water features The Supreme Court has not spoken agencies are establishing that a mere do not sever jurisdiction of upstream directly to the question of whether an hydrologic connection cannot provide perennial or intermittent waters so long ephemeral reach along or downstream the basis for CWA jurisdiction; the as they convey surface water from such of an otherwise jurisdictional tributary bodies of water must be ‘‘geographical upstream waters to downstream severs jurisdiction, and the agencies features’’ (i.e., rivers and streams) that jurisdictional waters in a typical year. believe that the final rule appropriately are ‘‘relatively permanent’’ (i.e., The use of ‘‘channelized’’ in this context reflects their statutory authority. In perennial or intermittent) and that generally indicates features with a particular, the plurality decision in contribute surface water flow to a defined path or course, such as a ditch Rapanos emphasized that jurisdictional traditional navigable water or the or the bed of an ephemeral stream. The waters themselves must be relatively territorial seas in a typical year. flow must be channelized in the sense permanent and connected to traditional Rapanos, 547 U.S. at 732. This of being discrete and confined to a navigable waters, 547 U.S. at 742, but requirement is informed by Rapanos, channel, as opposed to diffuse, non- did not specify the type of connection wherein the plurality determined that channelized flow. Channelized non- necessary between the relatively the phrase ‘‘the waters of the United jurisdictional surface water features are permanent waters and downstream States’’ ‘‘cannot bear the expansive generally continuously present on the traditional navigable waters. Justice meaning that the Corps would give it,’’ landscape as geomorphic features and Kennedy’s opinion stated that the Corps id. at 732, and challenged the notion may regularly ‘‘connect’’ the upstream could identify by regulation categories that ‘‘even the most insubstantial tributary to the downstream of tributaries based on ‘‘their volume of hydrologic connection may be held to jurisdictional water such that those flow (either annually or on average), constitute a ‘significant nexus.’ ’’ Id. at waters can mix and become their proximity to navigable waters, or 728. Similarly, Justice Kennedy noted, indistinguishable in a typical year. This other relevant considerations,’’ id. at ‘‘mere hydrologic connection should not may occur, for example, where managed 780–81, but fails to provide further suffice in all cases; the connection may water systems alter the flow guidance. The agencies conclude that be too insubstantial for the hydrologic classification of a perennial or the final rule appropriately reflects and linkage to establish the required nexus intermittent tributary to ephemeral but balances these general guiding with navigable waters as traditionally the perennial or intermittent flow principles by exercising jurisdiction understood.’’ Id. at 784–85. The returns farther downstream. It could over perennial and intermittent agencies believe that the requirement also occur as a result of natural tributaries but not ephemeral streams

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22290 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

and dry washes, while under certain are not tributaries under this rule, even climatic conditions, changes in circumstances allowing such if they convey surface water flow from topography and surrounding channelized features to maintain upstream relatively permanent waters to development, water input, and water jurisdiction between upstream and downstream jurisdictional waters in a withdrawals. When such a transition downstream more permanent waters. typical year. See Section III.A.3 for zone of flow classification occurs, the Some commenters agreed with the additional discussion. agencies will use best professional agencies’ proposal that ephemeral Some commenters asked for judgment and various tools to identify reaches should sever jurisdiction of clarification on whether tributaries are where the change in flow classification upstream waters because those waters viewed as reaches or as an entire occurs. The agencies have historically no longer have a continuous hydrologic network. The agencies are using the implemented comparable approaches at surface connection of relatively term ‘‘reach’’ in this preamble to the transition zones, for example with the permanent flow to a downstream final rule to mean a section of a stream identification of the extent of tidal jurisdictional water. Other commenters or river along which similar hydrologic influence (also referred to as the head of stated that the proposed definition of conditions exist, such as discharge, tide). This generally occurs where a ‘‘waters of the United States’’ was depth, area, and slope.45 If a perennial river flows into tidal waters and the inconsistent in that some forms of tributary becomes intermittent and then agencies must identify the farthest point natural or artificial features could ephemeral and then perennial again, it upstream where a tributary is affected connect upstream tributaries with may be viewed as four separate reaches by tidal fluctuations in order to downstream jurisdictional waters, (e.g., perennial reach, intermittent determine which lateral extent to apply whereas ephemeral reaches would have reach, ephemeral reach, perennial for the limits of jurisdiction (i.e., high severed jurisdiction of upstream reach), especially if they also share tide line or ordinary high water mark), perennial and intermittent streams. In other similarities with respect to depth, permitting requirements, and similar addition, many commenters raised slope, or other factors. In general, a factors. There is generally not a hard concerns about implementing a reach can be any length of a stream or demarcation distinguishing where a definition of ‘‘tributary’’ in which an river, but the agencies are clarifying for waterbody ceases to be tidal, so the ephemeral feature would sever implementation purposes that such agencies must use best professional jurisdiction of upstream reaches, length is bounded by similar flow judgment utilizing all available indicating that it may be difficult to characteristics. information and tools which may assist apply in the field. Commenters also Commenters suggested that flow in making the determination. See stated that if ephemeral features severed classification and jurisdictional status Section III.B.3 for additional jurisdiction of perennial and could be determined based on the flow information. intermittent waters upstream, many in the majority of a reach (i.e., whether waters in certain regions, such as the it is perennial, intermittent, and Many commenters recommended that arid West, would be non-jurisdictional. ephemeral), which they said would be tributaries that were altered or relocated Some commenters expressed concern simpler than differentiating various should remain tributaries. The agencies that the proposed definition would segments from the broader stream reach. agree with those comments and, place a burden on project applicants to The agencies are not determining flow consistent with the proposal, have identify and anticipate such ephemeral classification using the majority of the included that provision in the final rule. breaks to avoid potential responsibility reach. Under the Rapanos Guidance, a Many commenters expressed concern for compensatory mitigation of tributary ‘‘reach’’ was identified by a about the challenges of implementing a upstream losses. The agencies have stream order classification system where flow-based ‘‘tributary’’ definition where modified the final rule language in a the relevant reach was used for many systems have been modified by manner that addresses these concerns. purposes of a significant nexus human actions. Some commenters also Under the final rule, tributaries that determination. However, stream order is stated that the use of ‘‘naturally contribute surface water flow to a not directly relevant to stream and river occurring’’ in the proposed ‘‘tributary’’ downstream jurisdictional water in a jurisdiction under this final rule, and definition was unclear and questioned typical year through certain natural instead flow classification is a key how it would apply to modified features (such as debris piles or boulder aspect in determining the jurisdictional systems. The agencies disagree with the fields) or artificial features (such as status of a tributary. The agencies proposition that identifying flow culverts or dams) are tributaries, even conclude that such an approach is easier conditions would be challenging in though these features may result in an to implement in light of the final rule’s modified systems. An altered tributary interruption in the surface water ‘‘tributary’’ definition and is more is one in which the flow or geomorphic channel. A perennial or intermittent consistent with the legal and scientific conditions have been modified in some tributary above the natural or artificial foundation for the rule. Along the length way, for example, by straightening a feature does not lose its jurisdictional of a tributary, the flow classification sinuous tributary, adding concrete or status as long as the natural or artificial may fluctuate, and the points at which riprap to stabilize the banks of a feature continues to convey surface flow classifications change are the tributary, reducing flow conditions from water flow from the upstream reach to points at which a reach is bounded. If perennial to intermittent flow due to a downstream jurisdictional water in a a tributary flows through a non- water withdrawals, or widening or typical year. jurisdictional ephemeral reach to adding physical features (such as riffle/ Commenters also requested downstream jurisdictional waters, the pool complex restoration or check clarification on whether a natural point at which a tributary becomes dams) to the tributary to reduce the feature through which a tributary flows ephemeral may fluctuate upstream and velocity of flow. A relocated tributary is could be considered a jurisdictional downstream in a typical year based on one in which an entire portion of the feature as part of the tributary itself, tributary may be moved to a different such as a boulder field or subterranean 45 See Connectivity Report at A–10, defining location, as when a tributary is rerouted river. Natural or artificial features that ‘‘reach’’ as ‘‘a length of stream channel with around a city center to protect it from relatively uniform discharge, depth, area, and do not satisfy the surface water flow slope.’’ A similar definition is used by the USGS, flooding or around a mining complex to conditions of the ‘‘tributary’’ definition at https://www.usgs.gov/faqs/what-a-reach. enable extraction of commercially

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22291

valuable minerals. To be considered a (‘‘ ‘[R]elatively permanent’ waters do not authorize an agency theory of tributary, such features must continue to include ephemeral tributaries which jurisdiction that presses the envelope of meet the flow conditions of the flow only in response to precipitation constitutional validity.’’). ‘‘tributary’’ definition. The agencies and intermittent streams which do not The agencies recognize that this is a conclude that identifying flow typically flow year-round or have departure from prior positions of the conditions in these features would be no continuous flow at least seasonally. Federal government. The agencies also more challenging than identifying flow However, CWA jurisdiction over these recognize that prior to the finalization of conditions in other tributaries, which waters will be evaluated under the this rule, some courts applied the the agencies have been doing to apply significant nexus standard[.]’’). The significant nexus standard articulated in the Rapanos Guidance since 2008. In a definition of ‘‘tributary’’ in the final rule Justice Kennedy’s opinion as the relocated tributary, the reach that has replaces existing procedures that utilize exclusive test of CWA jurisdiction over been relocated may meet the definition a case-specific ‘‘significant nexus’’ certain waters. As described in detail in of ‘‘ditch’’ or may be colloquially called analyses of the relationship between a Section II.E, the agencies have analyzed a ditch, which is why, for simplicity particular stream and downstream the text, structure, and legislative and clarity, the agencies have included traditional navigable water. The history of the CWA in light of Supreme these ditches in the definition of agencies are eliminating this case- Court guidance and conclude that this ‘‘tributary.’’ The agencies also believe specific ‘‘significant nexus’’ analysis by final rule incorporates important aspects that retaining jurisdiction over the providing a clear definition of of Justice Kennedy’s opinion, together relocated tributary is consistent with its ‘‘tributary’’ that is easier to implement. with those of the plurality, to craft a clear and implementable definition that legal authorities and the agencies’ Justice Kennedy’s ‘‘significant nexus’’ stays within their statutory and treatment of impoundments of test for wetlands adjacent to constitutional authorities. jurisdictional waters (see Section III.F), nonnavigable tributaries was needed which may alter the course or form of The final ‘‘tributary’’ definition only ‘‘absent more specific regulations,’’ contains no flow volume requirement, a water of the United States but Rapanos, 547 U.S. at 782, because ‘‘the maintains sufficient surface water but only a requirement of perennial or breadth of [the Corps’ existing tributary] intermittent flow and a contribution of connection to a traditional navigable standard . . . seems to leave wide room water in a typical year. surface water flow to a paragraph (a)(1) for regulation of drains, ditches, and Some commenters requested water in a typical year. The agencies streams remote from any navigable-in- clarification on how water diversions believe that establishing a specific flow may affect the jurisdictional status of fact water and carrying only minor volume requirement for all tributaries is tributaries. A water diversion that water volumes towards it’’ and thus inappropriate, given the wide spatial completely reroutes a tributary through ‘‘precludes its adoption as the and temporal variability of flow volume a tunnel would be considered an determinative measure of whether in rivers and streams across the country. artificial feature that would not sever adjacent wetlands are likely to play an While the definition may in certain jurisdiction under this final rule. The important role in the integrity of an instances assert jurisdiction over bodies tunnel itself is not a tributary under the aquatic system comprising navigable of water contributing ‘‘the merest rule, however, because it is not a surface waters as traditionally understood.’’ Id. trickle,’’ 547 U.S. at 769 (Kennedy, J., water channel. This final rule clarifies at 781. In light of the ‘‘more specific concurring in the judgment), to a that jurisdiction applies based on [tributary] regulations’’ finalized in this traditional navigable water during current flow classification in a typical rule, the agencies are eliminating the certain times of the year, the agencies year. When completing jurisdictional case-specific significant nexus review conclude that such bodies are ‘‘ ‘waters’ determinations in managed systems, just through categorical treatment, as in the ordinary sense of containing a as in natural systems, the agencies will ‘‘waters of the United States,’’ of all relatively permanent flow’’ regardless of consider whether features meet the flow tributaries with perennial or flow volume. Id. at 757 (Scalia, J., conditions of the ‘‘tributary’’ definition intermittent flow that contribute surface plurality). in a typical year. Managed systems are water flow to downstream navigable-in- Some commenters suggested that jurisdictional as long as they satisfy the fact waters in a typical year. See id. at using stream flow volumes rather than definition of ‘‘tributary,’’ including the 780–81 (Kennedy, J., concurring in the flow duration classifications for the flow conditions. If a stream is judgment) (‘‘Through regulations or definition of ‘‘tributary’’ would be easier ephemeral in a typical year due to adjudication, the Corps may choose to to implement. The agencies disagree managed water withdrawals, the feature identify categories of tributaries that, with this suggestion based on their is an excluded ephemeral stream. due to their volume of flow (either experience. In 1977, the Corps proposed Tributaries that have been altered via annually or on average), their proximity to use flow volumes (i.e., five cubic feet water management systems, or whose to navigable waters, or other relevant per second) to define ‘‘headwaters’’ in morphology has been altered in some considerations, are significant enough the definition of ‘‘waters of the United manner, maintain their tributary status that wetlands adjacent to them are States,’’ and instead finalized the use of as long as they are perennial or likely, in the majority of cases, to flow volumes for implementation of intermittent and contribute surface perform important functions for an their general permit program. 42 FR water flow to the territorial seas or a aquatic system incorporating navigable 37129 (July 19, 1977). Stream flow traditional navigable water in a typical waters.’’) (emphasis added). In doing so, volume is challenging to measure year. the agencies believe they avoid directly, in particular in an intermittent Under the pre-existing regulatory interpretations of the CWA that raise stream where flow is not always present regime (recodified in the 2019 Rule), the significant constitutional questions. See and may require multiple field-based agencies conducted a significant nexus id. at 738 (plurality) (‘‘Even if the term measurements that can make analysis for certain types of waters ‘the waters of the United States’ were implementation inefficient and result in referred to as ‘‘non-relatively permanent ambiguous as applied to channels that delays in making a jurisdictional waters,’’ which includes ephemeral sometimes host ephemeral flows of determination. While flow duration features and some intermittent streams. water (which it is not), we would expect classifications may also require field See Rapanos Guidance at 7 a clearer statement from Congress to measurements, in certain instances

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22292 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

remote tools, such as remote sensing properties may not know the number of 3. How will the agencies implement the and aerial photography, can be used to days a stream flows per year. final rule? observe presence or absence of flow and Other commenters recommended the The agencies will employ many identify flow duration classifications, use of physical indicators of flow, such different methods and tools to identify but cannot also assess flow volumes. In as ordinary high water mark and bed and determine whether a feature meets addition, the agencies have not and banks, which could be regionalized the definition of ‘‘tributary’’ under this for a field-based approach. These identified a reasonable or appropriate final rule. A few commenters commenters stated that physical rationale or justification for specific recommended that the agencies identify indicators can be more readily flow volumes that should establish a variety of methods which may be observable and can indicate flows of jurisdiction given the broad nationwide employed to identify flow sufficient magnitude and duration to applicability of the final rule. classifications, and that such methods qualify as a tributary. The agencies involve tools readily available to a A few commenters requested a flow disagree with these comments and typical landowner. Methods and tools duration metric (e.g., 30, 90, or 185 conclude that physical indicators of used by the agencies are generally days) to determine a jurisdictional flow, absent verification of the actual available for the public to use so that tributary. Several commenters occurrence of flow, may not accurately recommended the agencies adopt a represent the flow classifications they can make an informed decision definition of ‘‘intermittent’’ that required for tributaries under this rule. about how to proceed with requests for contains the requirement of continuous See, e.g., 547 U.S at 781 (Kennedy, J., jurisdictional determinations or flow for a specific duration, such as ‘‘at concurring in the judgment) (expressing authorization for activities under the least one month of the calendar year’’ to concerns that a the Corps’ existing CWA. The agencies believe that there provide certainty for determining flow tributary standard based, in part, on the are numerous cases where an informed classification. See e.g., 30 CFR 710.5 ‘‘possess[ing]’’ of ‘‘an ordinary high decision can save valuable time and (definition of ‘‘intermittent’’ used in a water mark, defined as a ‘line on the money by avoiding unnecessary U.S. Department of Interior regulation). shore established by the fluctuations of jurisdictional determination requests. This can be done, for example, where Several commenters also recommended water and indicated by [certain] landowners are familiar with the water a regionalized approach to flow physical characteristics,’ . . . seems to features on their property and know that classification. The agencies have leave wide room for regulation of they only flow in response to a rain finalized an approach that considers drains, ditches, and streams remote event, or that an isolated wetland in the streamflow duration in the flow from any navigable-in-fact water and middle of a ranch is not flooded by a classification definitions generally (e.g., carrying only minor water volumes nearby perennial river in a typical year. ‘‘flowing continuously year-round,’’ towards it’’). For example, ephemeral However, in cases where a member of ‘‘flowing continuously during certain streams can have an ordinary high water the general public makes an informed times of the year and more than in mark and bed and banks, which would decision to not request a jurisdictional direct response to precipitation,’’ and not allow for the agencies or the public to distinguish between a non- determination and discharges pollutants ‘‘flowing . . . only in response to into a waterbody that is, in fact, precipitation’’) but without specifying jurisdictional ephemeral stream and a jurisdictional intermittent or perennial jurisdictional without required permits, an exact number of days of flow. The the individual could be subject to the agencies are not providing a specific tributary using those physical indicators. Ephemeral streams in the agencies’ enforcement authorities under duration (e.g., the number of days, the CWA. weeks, or months) of surface flow that arid West, for example, may have ordinary high water marks that were One of the first steps in determining constitutes intermittent flow, as the time whether a feature is a tributary is to period that encompasses intermittent incised years ago following a single large storm. It makes more practical identify relevant features on the flow can vary widely across the country sense for a feature to be first assessed as landscape, such as rivers, streams, or based upon climate, hydrology, a tributary, after which the lateral extent similar naturally occurring surface topography, soils, and other conditions. of that tributary can be identified using water channels, as well as ditches. Field The ‘‘typical year’’ construct captures the ordinary high water mark. work to include direct observation and that variability, however, and provides Physical indicators, however, may be other reliable methods can indicate the for regional and local variations in the one line of evidence the agencies could existence of a tributary, such as stream actual application of a uniform use to evaluate whether a stream meets gage data, elevation data, historic or nationwide definition. The agencies the flow requirements to be a tributary current water flow records, flood acknowledge that an approach utilizing under this definition. These indicators predictions, statistical evidence, aerial a specific duration would provide for could be regionalized to obtain a imagery, and USGS maps. enhanced national consistency, but it practical field-based approach for Another step in determining whether would also undermine the regionalized identifying the flow classification of a a feature is a tributary is to identify implementation of intermittent stream which is a required component whether the feature contributes surface tributaries as provided for under this of identifying a tributary. Such physical water flow to a paragraph (a)(1) water final rule. Some commenters cautioned indicators are further discussed in either directly or through one or more the agencies against treating intermittent Section III.D.3 of this notice. In paragraph (a)(2) through (4) waters in a streams similarly across the country addition, the agencies cannot always typical year. The agencies intend to use based on a prescriptive flow duration rely on field-based physical indicator several sources to identify the flow path metric, as intermittent streams in the methods—for example, when evaluating of a potential tributary to determine arid West are fundamentally different a site at a time that does not meet the whether surface water flow is being from intermittent streams in the definition of ‘‘typical year.’’ In some contributed eventually to a paragraph Southeast, for example. A specific instances, completing a desktop (a)(1) water. The agencies can use USGS duration requirement would also be determination with remote tools may maps, State and local knowledge or challenging to implement—even supplement or substitute for field-based maps, aerial photography, or other landowners familiar with their indicators. remote sensing information so long as

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22293

the tools the agencies use have been has applied these terms in its preamble to the proposed rule to verified to be reliable (see, e.g., Section Nationwide Permit Program (NWP). See evaluate flow classification have limited IV of this notice regarding limitations of 82 FR 1860, 2005 (January 6, 2017). The availability. The agencies agree that existing aquatic resource mapping terms are used in the NWP in a manner some data and resources have datasets) to assess a feature’s flow path. similar to the definitions in this final significant limitations and other The agencies can also use available rule, but in the NWP the terms adhere national-level tools and methods may models, including models developed by more closely to the generally-accepted not be readily available or accurate for Federal, State, tribal and local scientific definitions that focus on use in many areas of the country, governments, academia, and the groundwater rising above the bed of the including in rural or remote areas and regulated community. One such model stream channel as differentiating in heavily modified systems. The includes the ‘‘Flow (Raindrop) Path’’ between ephemeral features and agencies will continue to rely on local GIS tool which allows the user to click perennial and intermittent waters. See knowledge, information provided by the a point on a map to signify a falling id. at 2006. For the reasons explained in landowner, and local, State, and tribal raindrop on that point, after which a Section III.A.2, however, the agencies agencies, and a variety of additional flow path is drawn to estimate where have finalized definitions for the three tools and resources to evaluate flow the raindrop may flow, eventually flow classification terms in this rule that classification in such systems. The final making its way to the ocean if the better align with the scope of CWA rule language on flow classifications tributary network allows for it (https:// jurisdiction, while improving clarity of allows for consistent implementation streamstats.usgs.gov/ss/). The the rule and transparency of the approaches for modified systems and StreamStats tool may potentially be agencies’ implementation. These flow more natural systems. used to identify the flow path from the classification terms can be implemented Visual observations of surface subject water to the downstream using readily available resources in hydrology are a useful primary method paragraph (a)(1) water using the ‘‘Flow addition to visual assessments. to identify flow classifications. The (Raindrop) Path’’ component of the tool. Some commenters expressed concern agencies expect that landowners will These tools could be used in that the information needed to often have sufficient knowledge to conjunction with field observations, determine flow classification would understand how water moves through data, and other desktop tools to evaluate require a high burden of proof and their properties, although visual whether a specific point on a potential would result in significantly longer observations could be conducted by tributary may have a surface water processing times for jurisdictional Federal, State, tribal and local agencies, connection to a downstream paragraph determinations. The agencies will and other public or private (a)(1) water in a typical year. continue to bear the burden of proof for organizations, as appropriate. The In addition to identifying the presence determinations and, as noted above, agencies also recognize that a single of rivers, streams, or similar naturally have already implemented a version of visual observation may not always be occurring surface water channels which the flow classification concept under sufficient to accurately determine flow contribute surface water flow to a the Rapanos Guidance and the Corps’ classification, and visual observations downstream paragraph (a)(1) water, the NWP. The agencies disagree with the should generally be combined with agencies must assess the feature’s flow suggestion that the use of these flow precipitation and other climate data and classification. The agencies have classifications will result in a lengthier expected flow seasonality to accurately substantial experience using visual process for jurisdictional determine flow classification. For hydrologic observations, field data and determinations. With the clear and example, observing flow directly after a indicators, and remote tools to categorical definition as to the scope of large rainfall or observing no flow determine flow classification. CWA jurisdiction included in this final during a dry season may not be good Commenters expressed several key rule, the elimination of the significant indicators of a stream’s typical flow concerns about the flow classification nexus determination requirement for classification. In addition to visual observations of concept. Some commenters noted that tributaries, the use of existing tools, and surface hydrology, the agencies may use there is no established or universally the development of new tools, field-based indicators and tools as accepted methodology to identify flow jurisdictional determinations for another line of evidence to determine classification. The agencies agree that tributaries should be more efficient flow classification. Some commenters there is no universally accepted under this final rule than under prior recommended using local flow data methodology; however, scientists, regulatory regimes. collected by government agencies, Some commenters also noted that the environmental consultants, and other where available, and the agencies data and resources identified in the water resource professionals, including acknowledge that this could be a useful agency staff, have used the terms source of data. The agencies have also round or have continuous flow at least seasonally ‘‘perennial,’’ ‘‘intermittent,’’ and used methods such as trapezoidal ‘‘ephemeral’’ for decades in the field. (e.g., typically three months)[.]’’ Id. at 1. At the same time, the guidance established that flumes and pressure transducers for Indeed, the agencies have used these ‘‘ ‘relatively permanent’ waters do not include measuring surface flow. During the terms to evaluate the jurisdictional ephemeral tributaries which flow only in response public comment period, many status of waters for more than a decade, to precipitation and intermittent streams which do not typically flow year-round or have continuous commenters mentioned the availability in accordance with the 2008 Rapanos of existing rapid, field-based, 46 flow at least seasonally.... CWA jurisdiction over Guidance. More recently, the Corps these waters will be evaluated under the significant streamflow duration assessment nexus [test.]’’ Id. at 7. The agencies also note that methods that have been developed for 46 Under the Rapanos Guidance, the agencies in June 2009, the Corps added a classification code applied a different jurisdictional test based upon a ‘‘R6,’’ entitled ‘‘Riverine Ephemeral,’’ to identify use across various States or geographic tributary’s flow regime. ‘‘The agencies will assert ephemeral aquatic resources. The Corps created the regions and suggested that these existing jurisdiction over relatively permanent non- ‘‘R6’’ code to provide clarity to field staff when methods could be used to distinguish navigable tributaries of traditional navigable waters identifying ephemeral waters for entry into the between streams with perennial, without a legal obligation to make a significant ORM2 database. See https:// nexus finding.’’ Rapanos Guidance at 7. Relatively www.spa.usace.army.mil/Portals/16/docs/ intermittent, and ephemeral flow permanent tributaries were described in the civilworks/regulatory/Bulk%20Upload/ classifications. Many commenters also guidance as tributaries that ‘‘typically flow year- Bulk%20Data%20Cowardin.pdf. recommended that the agencies develop

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22294 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

similar methods for use across the National Hydrography Dataset (NHD) change in flow classification occurs United States, with input from the has been shown to overestimate flow in (e.g., from intermittent to ephemeral and public and the scientific community. certain areas. The agencies will assess vice-versa). The tools described above The agencies recognize that some flow classification using a compilation can assist in the identification of that States have developed streamflow of the best available mapping sources, transition in flow classification and duration assessment methods (SDAMs) which may include the NHD 47 or local therefore the delineation of a reach as that use physical and biological field maps, as well as other remote tools such used in this final rule. The primary indicators, such as the presence of as photographs, StreamStats by the distinction necessary under this rule is hydrophytic vegetation and benthic USGS (available at https:// the identification of when a perennial or macroinvertebrates, to determine the streamstats.usgs.gov/ss/), Probability of intermittent reach transitions to an flow duration class of a stream reach as Streamflow Permanence (PROSPER) by ephemeral reach and vice-versa. The perennial, intermittent, or ephemeral the USGS (available at https:// agencies acknowledge that there are (e.g., the Streamflow Methodology for www.usgs.gov/centers/wy-mt-water/ spatial and temporal variations in Identification of Intermittent and science/probability-streamflow- stream attributes such that there may Perennial Streams and Their Origins, permanence-prosper), Natural not always be a distinct point developed by the North Carolina Resources Conservation Service (NRCS) demarcating the flow classification Division of Water Quality, available at hydrologic tools and soil maps, desktop changes. For example, a single distinct http://portal.ncdenr.org/c/document_ tools that provide for the hydrologic point may occur at the confluence of library/get_file?uuid=0ddc6ea1-d736- estimation of a discharge sufficient to two ephemeral streams, which become 4b55-8e50- generate intermittent or perennial flow intermittent at the confluence. However, 169a4476de96&groupId=38364). The (e.g., a regional regression analysis or in some situations between stream EPA, the Corps, and the State of Oregon hydrologic modeling), USGS confluences, there may be a transition also previously developed a topographic data, or modeling tools zone where the flow classification regionalized SDAM that has been using drainage area, precipitation data, change fluctuates within that zone validated for use throughout the Pacific climate, topography, land use, throughout a typical year. The agencies Northwest since 2015 (available at vegetation cover, geology, and/or other will gather information from upstream http://www.epa.gov/measurements/ publicly available information. The and downstream of the transition zone streamflow-duration-assessment- agencies will continue to rely on field as far as needed to get an accurate method-pacific-northwest). observations and field data to verify assessment of the conditions on the Because SDAMs use indicators that desktop assessments as appropriate, and ground when it may be necessary for a are robust to seasonal and short-term will also consider data and tools decision point. This transition zone climatic variability, these methods can developed by academia, the regulated where the change in flow classification be applied in a single site visit to community, and other stakeholders. occurs will be evaluated by the agencies distinguish streamflow duration when a Ultimately, multiple data points and using the tools described above, as well channel is flowing or in the absence of multiple sources of information should as best professional judgment, to flow. The agencies agree with be used to determine flow classification. identify the most appropriate point at commenters that these methods are For example, a ‘‘blue line stream’’ on a which to distinguish flow useful and practical tools that could be USGS topographic map and/or mapped classifications. used to help inform timely and in the NHD may indicate a potential In addition to determining the flow predictable jurisdictional tributary. Combining this information classification of a potential tributary, the determinations, for implementation of with stream order can further inform agencies will also determine whether the final ‘‘tributary’’ definition, in the determinations of flow classification, as climatic conditions are typical to States and regions where previously higher order streams may be more likely determine whether the water feature developed SDAMs are available. The to exhibit perennial or intermittent flow meets the definition of ‘‘tributary’’ agencies also agree with commenters compared to lower order streams, under the final rule. As discussed in that developing similar methods for use though some headwater streams are Section III.A.1, the final rule defines the across the United States would promote perennial or intermittent. The agencies term ‘‘typical year’’ to mean ‘‘when consistent implementation of the final could further determine whether flow precipitation and other climatic tributary definition and note that the data, field indicators, or visual variables are within the normal periodic agencies are currently working to observations of surface hydrology are range (e.g., seasonally, annually) for the develop regionally-specific SDAMs for available to confirm a stream’s flow geographic area of the applicable nationwide coverage. The agencies classification. Field-based and remote aquatic resource based on a rolling believe that developing regionally- information may vary in availability and thirty-year period.’’ The agencies will specific SDAMs is important to account accuracy in different parts of the use readily available climatic data and for the differences in climate, geology, country, so care will be taken to tools to evaluate normal precipitation and topography that can influence evaluate additional information prior to and climatic conditions for the region at relationships between physical and reasonably determining the presence or issue and will ensure that the time biological indicators and streamflow absence of a tributary. Also, the agencies period of evaluation is representative of permanence. will continue to use the specific, the normal characteristics of the subject A variety of remote, desktop tools validated tools developed by States to waterbody (i.e., it is neither too wet nor could be used to determine flow identify stream flow classifications. too dry). A detailed discussed of how classification of potential tributaries, As noted previously, the agencies will the agencies intend to implement this particularly when coupled with site use best professional judgment and definition is provided in Section III.A.1. specific information. In meetings with various tools to identify where the In utilizing the data sources described stakeholders, some local government above and determining the flow officials recommended using local maps 47 As described in the RPA for the final rule, the classifications of tributaries under developed by government agencies, agencies note that NHD at High Resolution does not typical climatic conditions, the agencies distinguish intermittent from ephemeral features in where available, as opposed to national most parts of the country and may not accurately recognize the need to consider maps, noting for example that the identify on-the-ground flow conditions. seasonality and timing of tributary

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22295

flows. For instance, in some geographic conditions may also aid in determining flow of the tide (e.g., paragraph (a)(1) areas, intermittent streams may flow classification. waters); (2) ditches that are constructed typically flow only at certain times, In addition to requesting clarification in tributaries or that relocate or alter such as during seasonally wet about when a surface water feature tributaries as long as the ditch satisfies conditions. Thus, the agencies would meets the definition of ‘‘tributary,’’ the flow conditions of the tributary not expect to observe streamflow in some commenters also stated that it definition; and (3) ditches constructed seasonally dry conditions, even if would be helpful to incorporate the in adjacent wetlands as long as the ditch precipitation during those dry lateral limits of jurisdiction directly into likewise satisfies the conditions of the conditions is considered typical for the the ‘‘tributary’’ definition and tributary definition. 84 FR 4203. All dates of interest. The agencies may need questioned how such limits would be other ditches were excluded from CWA to use the multiple tools described determined. In addition, some jurisdiction under the proposal. above to determine the flow commenters expressed concern Many commenters did not find that classification for a tributary that is not regarding the status of braided rivers the separate jurisdictional category of flowing because of seasonally dry that migrate and have multiple channels ‘‘ditches’’ provided the regulatory conditions, including remote- and field- where the jurisdictional limits would be clarity and predictability that the based hydrologic and non-hydrologic identified. The lateral limits of agencies had sought. They instead indicators of the flow classification that jurisdiction for tributaries extends to the stated that the separate category created would occur during seasonally wet ordinary high water mark, as indicated confusion. Other commenters said that conditions. For example, remote by the physical characteristics provided the proposed separate category provided indicators might include a series of in the definition. Consistent with additional clarity, while others argued aerial and satellite images, spanning existing practice, the agencies intend to that all ditches should be excluded. multiple years and taken under normal continue to use the Corps’ ordinary high Other commenters stated that the climatic conditions, the majority of water mark manuals, as well as proposal was too limiting and should which depict water flowing in the Regulatory Guidance Letter 05–05, include more ditches as jurisdictional, channel. when making ordinary high water mark including any ditch that contributes determinations.48 The outer limits of a perennial, intermittent, or ephemeral In the field, evidence of recent flow braided channel may be used to identify flow to other ‘‘waters of the United can be observed through the presence of the lateral extent when appropriate, States.’’ multiple or abundant signs of certain which may encompass multiple low- In response to these diverse ordinary high water mark indicators for flow channels and the migratory islands comments, the final rule does not the region, such as the presence of point that separate them. Adding the ordinary include the separate category of bars, concentrations of drift deposits, or high water mark concept to the ‘‘ditches’’ under paragraph (a)(3) as the destruction of terrestrial vegetation. definition of ‘‘tributary’’ is unnecessary proposed and instead incorporates the Furthermore, certain wetland hydrology because it is already located in the elements of the proposal into the indicators can help clarify whether Corps’ regulations at 33 CFR 328.4 to ‘‘tributary’’ category, with some water is present in the area only identify the lateral extent of jurisdiction. additional clarifying edits. Ditches that immediately following precipitation The agencies are finalizing the rule with are paragraph (a)(1) waters do not need events, or whether longer-term the definition of ‘‘ordinary high water to be identified in another jurisdictional saturation has likely occurred. An mark’’ as proposed, however, to category, so that aspect of the proposal example of an indicator is the presence improve consistency between the has been eliminated as unnecessary and of oxidized rhizospheres along living corresponding regulations and also redundant. Ditches that are constructed root channels, which can take four to because the term ‘‘ordinary high water in or that relocate a tributary are eight weeks of continuous saturation to mark’’ is used in the final rule’s included in the final rule as tributaries, form. This indicator alone cannot be definition of ‘‘upland.’’ as long as the ditch satisfies the flow conclusive of water flowing above the conditions of the ‘‘tributary’’ definition. surface, but multiple positive indicators E. Ditches The same is true for ditches that are could provide an increased degree of 1. What are the agencies finalizing? constructed in adjacent wetlands. confidence in these situations. The agencies did not retain the term The regulatory status of ditches has Conversely, the agencies may observe ‘‘alter’’ from the proposed rule given the long created confusion for farmers, flow during wetter than normal potential confusion associated with the ranchers, irrigation districts, precipitation conditions. In this case, use of that term. As some commenters municipalities, water supply and the agencies can use other lines of noted, most, if not all, ditches may have stormwater management agencies, and evidence, including remote- and field- some effect on and therefore may ‘‘alter’’ the transportation sector, among others. based hydrologic and non-hydrologic a tributary or some portion of the To address this confusion, the agencies indicators of flow classification as tributary system. As described proposed to add a new category to the appropriate. Streams that contain throughout this notice, the CWA does definition of ‘‘waters of the United flowing water during wetter than not authorize the agencies to regulate all States’’ for jurisdictional ditches and normal climatic conditions, but which waters, nor does it authorize the similar artificial features. The agencies lack an ordinary high water mark or agencies to regulate all ditches that exist proposed to include in that category: (1) hydrology indicators may be less likely across the landscape to assist in water Ditches that are traditional navigable to flow during normal climatic management activities. The agencies waters or that are subject to the ebb and conditions. This assessment is further conclude that ditches that are supported if the majority of wet season 48 The Corps’ ordinary high water mark manuals ‘‘constructed in’’ or that ‘‘relocate’’ a aerial and satellite images taken during are available at: https://www.erdc.usace.army.mil/ tributary, and that satisfy the flow normal climatic conditions depict a dry Media/Fact-Sheets/Fact-Sheet-Article-View/Article/ conditions of the ‘‘tributary’’ definition, channel. In addition, a landowner’s 486085/ordinary-high-water-mark-ohwm-research- are appropriately within the authority development-and-training/. Regulatory Guidance specific information indicating whether Letter 05–05 is available at: https:// granted to the agencies under the CWA, a water feature meets the definition of usace.contentdm.oclc.org/utils/getfile/collection/ consistent with the legal principles a ‘‘tributary’’ under ‘‘typical year’’ p16021coll9/id/1253. outlined in Section II.E. The regulation

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22296 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

and management of all other ditches is under this definition. To the extent that them to be ‘‘discernible, confined, and appropriately left to States and Tribes as these activities cause water quality discrete conveyances . . . from which part of their primary authority over land problems, they will be handled under pollutants are or may be discharged.’’ and water resources within their border. other programs of the FWPCA, Public Law 92–500, 86 Stat. 816, 887 See 33 U.S.C. 1251(b), 1370. including Section 208 and 402.’’ 42 FR (1972) codified at 33 U.S.C. 1362(14). The agencies consider it to be clearer at 37127 (July 19, 1977). Similar Congress envisioned protecting the to include in the definition of statements in preambles to the proposed quality of the navigable waters, defined ‘‘tributary’’ that the alteration of a rules from the early 1980s confirmed as ‘‘waters of the United States’’ at that tributary does not modify its this interpretation: ‘‘man-made, non- time, by regulating the discharge of jurisdictional status as a tributary as tidal drainage and irrigation ditches pollutants from conveyances like pipes, long as it continues to meet the flow excavated on dry land are not ditches, channels, tunnels and similar conditions of the definition, rather than considered waters of the United States.’’ features into waters of the United States. to classify the alteration of a tributary as 45 FR 62732, 62747 (September 19, Id. at 1362(12) (defining ‘‘discharge of a ditch. This is also consistent with 1980); see also 48 FR 21466, 21474 (May pollutant’’ as ‘‘any addition of any longstanding agency practice. The 12, 1983) (‘‘Waters of the United States pollutant to navigable waters from any agencies have modified the exclusion do not include the following man-made point source’’). for ditches in paragraph (b)(5) to reflect waters: (1) Non-tidal drainage and The agencies evaluated the treatment these changes. The agencies also irrigation ditches excavated on dry land, of ditches in the CWA and its legislative recognize that in certain circumstances, (2) Irrigated areas which would revert to history to discern whether Congress ditches that are constructed in adjacent upland if the irrigation ceased.’’). intended ditches to be point sources, wetlands that lack sufficient flow to be The general exclusion for non-tidal navigable waters, or both. For example, considered tributaries under this final drainage and irrigation ditches Congress exempted the discharge of rule may develop wetland excavated in dry land continued dredged or fill material into waters of characteristics if not maintained. As through 1986, although the Corps the United States when that discharge discussed below, in limited modified its earlier statements that year occurs as a result of the construction or circumstances, those wetlands may be by noting in preamble text that ‘‘we maintenance of irrigation ditches, the treated as adjacent wetlands, subject to generally do not consider’’ such features maintenance of drainage ditches, or the permitting exemptions in 33 U.S.C. to be ‘‘waters of the United States,’’ and minor drainage associated with normal 1344(f). All other ditches are excluded indicating that the agency would farming activities. 33 U.S.C. under the final rule. evaluate certain ditches on a case-by- 1344(f)(1)(A), (C) (exempting such The agencies believe that this case basis. 51 FR 41206, 41217 activities from sections 301, 402, and approach to ditches best addresses the (November 13, 1986).49 The EPA also 404 of the Act). One possible comments received and provides clarity included similar language in a Federal interpretation of these exemptions is and regulatory certainty to determine Register notice in 1988. 53 FR 20764 that they function as an implicit when a ditch may be a jurisdictional (June 6, 1988). The Corps further acknowledgement that there may be water and when a ditch may be clarified the regulation of ditches in its some irrigation or drainage ditches that excluded, consistent with the agencies’ nationwide permit regulation in March are waters of the United States, thus the authority under the CWA. Finally, as 2000, stating that ‘‘non-tidal drainage need to exempt common agricultural discussed in Section III.A.3, non- ditches are waters of the United States and related practices in those waters jurisdictional ditches under this final if they extend the [ordinary high water from CWA section 404 permitting. rule may be capable of conveying mark] of an existing water of the United Another interpretation is that dredged channelized surface water flow between States.’’ 65 FR 12818, 12823 (March 9, or fill material or other pollutant upstream relatively permanent 2000). In other words, if flow or discharges arising from such activities jurisdictional waters and downstream flooding from a jurisdictional non-tidal are not subject to federal permitting if jurisdictional waters in a typical year. In river or stream inundated an upland those materials get washed down the this example, the ditch itself, however, ditch, the agencies would assert ditch into a connected water of the would remain non-jurisdictional. jurisdiction over that upland ditch United States. 2. Summary of Final Rule Rationale and because the ordinary high water mark of For irrigation ditches, which typically Public Comment the river or stream extends into the are constructed in upland but frequently ditch, and the agencies would then must connect to a water of the United During the 1970s, the Corps assert jurisdiction over the entire reach States to either capture or return flow, interpreted its authorities under the of that ditch. Congress exempted both the CWA as excluding drainage and This final rule clarifies the regulatory construction and maintenance of such irrigation ditches from the definition of status of ditches in a manner that is facilities. 33 U.S.C. 1344(f)(1)(C); see ‘‘waters of the United States.’’ See, e.g., more consistent with the Corps’ also 33 U.S.C. 1362(14) (excluding 40 FR 31320, 31321 (July 25, 1975) regulations following the 1972 and 1977 agricultural stormwater discharges and (‘‘Drainage and irrigation ditches have CWA amendments, with some irrigation return flows from the been excluded.’’). The ditch exclusion modifications to provide a clear definition of ‘‘point source’’).50 The was expressly stated in regulatory text definition that also falls within the in the Corps’ 1977 regulations. 33 CFR scope of the agencies’ authority under 50 The agencies also note that Congress exempted 323.2(a)(3); 42 FR 37122, 37144 (July 19, the CWA. When Congress enacted the the discharge of irrigation return flows into waters 1977) (‘‘manmade nontidal drainage and 1972 amendments, it specifically of the United States from the section 402 permit program. 33 U.S.C. 1342(l). This exemption irrigation ditches excavated on dry land included ditches and related artificial potentially would not be needed if agricultural are not considered waters of the United features as ‘‘point sources,’’ declaring drainage ditches carrying irrigation return flow States under this definition’’). As the were themselves waters of the United States, as the Corps explained in 1977: ‘‘nontidal 49 The Corps also moved the ditch exclusion from entry point of the irrigation return flow into the drainage and irrigation ditches that feed rule text to preamble language in 1986 but stated drainage ditch might then lack the requisite point that this was not a substantive change and that source discharging mechanism given the diffuse into navigable waters will not be jurisdiction was not expanded. 51 FR 41206, overland flow entry point from the field to ditch in considered ‘waters of the United States’ 41216–17 (November 13, 1986). most circumstances.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22297

construction activities performed in mutually exclusive. Some commenters commonly referred to as ‘‘canals’’— upland areas are beyond the reach of the expressed concern about features which provide important commercial CWA, but the permitting exemption may be considered point sources rather navigation services to the nation and applies to the diversion structures, than waters of the United States under operate more like natural waters weirs, headgates, and other related the proposed rule, and whether such traditionally understood as navigable. facilities that connect the irrigation features would require section 402 See, e.g., id. at 736 n.7 (Scalia, J., ditches to jurisdictional waters. See, permits to convey pollutants plurality) (‘‘a permanently flooded man- e.g., Corps, Regulatory Guidance Letter downstream. Other commenters stated made ditch used for navigation is No. 07–02, at 1–2 (July 4, 2007). that permit requirements may need to be normally described, not as a ‘ditch,’ but For drainage ditches, by contrast, the modified by sampling at the a ‘canal’ ’’). The Los Angeles River, for permitting exemption is limited to only downstream end of the ditch to example, is a water of the United States maintenance of such ditches. 33 U.S.C. demonstrate that pollutants are being (having been determined to be a 1344(f)(1)(C). That is because a parallel added to a water of the United States. traditional navigable water) and is not exemption for construction would allow The final rule does not make any excluded under paragraph (b) even the drainage of wetlands subject to CWA changes to the agencies’ interpretation where it has been channelized or jurisdiction without a permit. Congress’ of the definition of ‘‘point source’’ in concreted. Other examples include the intent to prevent such a result is evident CWA section 502(14). The agencies St. Lawrence Seaway, the Sturgeon Bay in the ‘‘recapture’’ provision of 33 believe that this final rule will help Ship Canal, and the Chesapeake and U.S.C. 1344(f)(2). See, e.g., Sen. Rpt. 95– clarify whether a ditch is a water of the Delaware Canal. 370, 95th Cong. 1st Sess., at 76–77 (July United States or a point source. Either Under the final rule, the agencies 19, 1977) (noting that exempted it is a water of the United States that limit the term ‘‘waters of the United ‘‘activities should have no serious subjects a discharger to sections 402 and States’’ to apply to clearly defined adverse impact on water quality if 404 permitting requirements for direct ditches and related features that meet performed in a manner that will not discharges into the ditch, or, if it is non- the flow conditions of the ‘‘tributary’’ impair the flow and circulation patterns jurisdictional but conveys pollutants to definition and are not otherwise and the chemical and biological downstream jurisdictional waters, it excluded. The agencies include ditches characteristics of the affected may be a point source that subjects a in the ‘‘tributary’’ category that were waterbody’’ and noting that the discharger into a ditch to section 402 constructed in or relocated a tributary ‘‘exemption for minor drainage does not permitting requirements. Both scenarios and that continue to meet the flow apply to the drainage of swampland or could also be subject to statutory conditions of the ‘‘tributary’’ definition. other wetlands’’). exemptions that would obviate the need The final rule retains the agencies’ In summary, Congress may have for a permit. In addition, if the ditch is longstanding position that the alteration envisioned the interconnection between a non-jurisdictional water that does not or relocation of a tributary does not the irrigation and drainage ditches and convey pollutants, it would not require modify the jurisdictional status of that down-gradient waters of the United a permit. water. Accordingly, ditches that relocate States as creating the need for the The agencies recognize that a change a tributary or are constructed in a section 404(f) permitting exemptions, in jurisdiction resulting from this rule tributary would be jurisdictional as not necessarily that those ditches may change the scope of application of tributaries. This provision is also themselves are waters of the United the CWA regulatory programs to a consistent with the agencies’ States. Or Congress could have particular water, but the longstanding longstanding, historic position that non- envisioned that some drainage ditches approach that the agencies have taken to tidal ditches excavated in upland (and constructed in jurisdictional wetlands implementing and enforcing those historically described as ‘‘dry land’’) are become waters of the United States programs would remain the same. If a not jurisdictional. themselves and thus require section CWA section 402 permit is not currently The agencies also include ditches in 404(f) permitting exemptions for required for a discharge to a water, it is the ‘‘tributary’’ category that were maintenance work performed in them. unlikely that this final rule will create constructed in a wetland that meets the The agencies have not been able to a requirement for a new CWA permit. If definition of ‘‘adjacent wetland,’’ as identify any legislative history that a section 402 permit is currently long as the ditch also satisfies the flow signals the clear intent of Congress on required for a discharge to a water that conditions of the ‘‘tributary’’ definition. this complex topic, and commenters is no longer jurisdictional under this As discussed above, this approach provided a diverse range of viewpoints final rule, that permit may no longer be aligns the rule with the CWA section that failed to provide a clarifying required; it may still be required if the 404(f) permitting exemption for the position. To resolve the ambiguity, the non-jurisdictional feature conveys a maintenance but not construction of agencies are interpreting the statutory discharge of pollutants from a point drainage ditches, and the associated text in section 404(f) and its legislative source to a water of the United States; concern expressed during the legislative history as an indication that Congress or it may still be required but the process for the 1977 CWA amendments may have intended, in certain limited conditions associated with the permit related to draining swamps and circumstances, that ditches constructed may need to be modified, subject to wetlands. The provision is restricted to in jurisdictional wetlands could become applicable anti-backsliding permit ditches that satisfy the flow conditions jurisdictional waters themselves. The requirements. of the definition of ‘‘tributary,’’ which agencies believe that the final rule This final rule includes the agencies’ aligns the treatment of jurisdictional formulation adheres more closely to the longstanding interpretation that ditches ditches with natural tributaries. See language of the statute and the positions that satisfy any of the conditions of a Section III.D for a broader discussion of articulated by the plurality opinion in paragraph (a)(1) water are waters of the the ‘‘tributary’’ category. Rapanos. See, e.g., 547 U.S. at 735–36 United States as paragraph (a)(1) waters. Ditches used to drain surface and and n.7. This also includes tidal ditches and shallow subsurface water from cropland Many commenters requested the ditches that transport goods and are a quintessential example of the agencies clarify that a water of the services in interstate and foreign interconnected relationship between United States and point source are commerce, as those ditches—more land and water resource management, as

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22298 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

is the case for managing water resources wetland that contributes less than water feature such that the recapture in the Western United States, conveying perennial or intermittent flow to a provision overrides the ditch irrigation water to and from fields, and paragraph (a)(1) water in a typical year maintenance exemption. This managing surface water runoff from and that, due to lack of maintenance, interpretation would eliminate the lands and roads following precipitation gains wetland characteristics may be maintenance exemption from events—all activities that rely on viewed as an adjacent wetland if it performing the very purpose Congress ditches. See, e.g., FERC v. Mississippi, meets the definition of both ‘‘wetlands’’ intended—allowing the dredging of the 456 U.S. 742, 767 n.30 (1982) under paragraph (c)(16) and ‘‘adjacent bottom of the ditch to eliminate (characterizing ‘‘regulation of land use wetlands’’ under paragraph (c)(1). For obstructions to flow, including [as] perhaps the quintessential state example, a ditch constructed in an vegetation, without the need for a activity’’). The majority of these ditches adjacent wetland that abuts a tributary permit. will not be jurisdictional under the final may have portions that could be Many commenters noted that under rule. This final rule therefore effectuates considered an adjacent wetland if the the proposed rule, ditches must meet the clear policy directive from Congress portions meet the definition of the definition of ‘‘tributary’’ to be to preserve and protect the primary ‘‘wetland.’’ Only the portion or portions jurisdictional, but because a ‘‘ditch’’ authority of States over land and water of the ditch that meets the definition of was defined as an artificial channel and resources within their borders. See 33 ‘‘adjacent wetland’’ are jurisdictional a tributary was ‘‘naturally occurring,’’ a U.S.C. 1251(b), 1370. under this final rule. Other ditches not ditch could never meet the definition of Commenters had differing views on constructed in adjacent wetlands, or not ‘‘tributary.’’ The phrase ‘‘naturally the jurisdictional status of ditches. otherwise covered by paragraph (a)(1) or occurring’’ does not exclude modified Many commenters supported the (2), are excluded from jurisdiction natural tributaries. The final rule agencies’ proposed approach to exclude under paragraph (b)(5). Such an clarifies that the ‘‘alteration’’ or many types of ditches, in particular approach aligns the treatment of ditches ‘‘relocation’’ of a tributary does not those ditches constructed in upland as tributaries and adjacent wetlands in modify its jurisdictional status as long which do not relocate a tributary. Some this final rule with the section 404(f) as it originally occurred naturally and commenters stated that ditches should permitting exemption for the continues to satisfy the flow conditions be jurisdictional even if constructed in maintenance but not construction of of the definition. In addition, the upland if they have perennial flow. drainage ditches, and the associated agencies have clarified in the final rule Some commenters recommended the concern expressed during the legislative that the definition of ‘‘tributary’’ agencies use the function of the ditch as process for the 1977 amendments includes ditches that are constructed in the basis for an exclusion, such as all related to draining swamps and or relocate tributaries so long as the agricultural ditches, regardless of flow. wetlands. ditch satisfies the flow conditions of the The agencies disagree with the definition. A ‘‘naturally occurring’’ inclusion of upland ditches as The agencies also note that the tributary may be altered in such a jurisdictional waters aside from ditches maintenance of certain jurisdictional manner that it no longer appears that relocate a tributary or that meet the ditches may occur without permitting ‘‘natural’’ and instead has been conditions of paragraph (a)(1). Such under the section 404(f) exemptions of constructed to become a channel that ditches are not part of the naturally the CWA. Congress expressly excluded conveys water. One such example is the occurring tributary system and are not the construction and maintenance of Los Angeles River. Such a feature may something the agencies consider to be irrigation ditches and the maintenance satisfy the definition of ‘‘ditch’’ in this within their authority to regulate under of drainage ditches (such as farm or rule, but it also satisfies the definition the CWA. Upland ditches (other than roadside drainage ditches, many of of ‘‘tributary,’’ which overrides the those ditches that relocate a tributary or which are also excluded from general exclusion for ditches in that meet the conditions of paragraph jurisdiction under this rule) from the paragraph (b)(5) as clarified in that (a)(1)) do not fall under the ordinary permitting requirements of sections 301, exclusion. A ditch that straightens a meaning of the term ‘‘waters’’ within the 402, and 404. Discharges of dredged or tributary is considered to be scope of the CWA. In general, upland fill material associated with those ‘‘constructed in’’ a tributary, and the ditches were not jurisdictional for exempt activities into a ditch ditch would be jurisdictional as a decades under the agencies’ previous constructed in an adjacent wetland are tributary so long as it continues to meet definitions of ‘‘waters of the United therefore exempt from CWA permitting, the flow conditions of the ‘‘tributary’’ States,’’ and they are not jurisdictional even if those materials are transported definition. under this final rule (with the down the ditch to other jurisdictional The proposed rule required ditches to exceptions noted above). The agencies waters. The agencies note that section satisfy the ‘‘conditions’’ of the considered identifying and excluding 404(f) has a recapture provision that is ‘‘tributary’’ definition to be ditches based on the function or designed to override the permitting jurisdictional as tributaries; however, purpose of the ditch but concluded that exemptions in section 404(f) if the the agencies have clarified in the final such an approach could result in the otherwise exempt activity alters the rule that the ditches must satisfy the regulation of ditches with ephemeral previous use of a jurisdictional water flow conditions of the ‘‘tributary’’ flow and the exclusion of ditches which through impairment of the circulation or definition to be jurisdictional as a are essentially relocated tributaries. flow of such waters or a reduction in the tributary. This requirement allows for Both outcomes would be contrary to the reach of such waters. 33 U.S.C. such ditches to be artificial (as in not agencies’ interpretation of the scope of 1344(f)(2). The agencies are aware that ‘‘naturally occurring’’) and still be CWA jurisdiction described throughout in some circumstances, questions about considered tributaries. The agencies’ this notice. the applicability of this recapture longstanding interpretation of the CWA The agencies recognize that there provision to ditches that develop is that tributaries that are altered or have been questions over time about the wetland characteristics have created relocated tributaries are jurisdictional, jurisdictional status of ditches that are confusion. Some question whether the and the agencies are not changing this not maintained. Under this final rule, a development of wetland characteristics interpretation. If a tributary is ditch constructed in an adjacent in a ditch establishes a new use for the channelized, its bed and/or banks are

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22299

altered in some way, it is re-routed and or is constructed in an adjacent wetland identify, and some commenters entirely relocated, or its flow is as long as the ditch satisfies the flow requested more specific guidance and modified through water diversions or conditions of the ‘‘tributary’’ definition. standards of evidence which would be through other means, then it remains The phrase ‘‘constructed in an adjacent used by the agencies. Along with field jurisdictional under the final rule as wetland’’ refers to ditches originating in data and current information on the long as it continues to satisfy the flow or constructed entirely within an subject water, historic tools and conditions in the definition of adjacent wetland. The phrase also resources may be used to determine the ‘‘tributary.’’ includes ditches that are constructed presence of a tributary or adjacent Finally, the agencies note that starting through adjacent wetlands, but wetland at the time of ditch in the early 2000s, certain ditches (such jurisdiction over those ditches only construction, and several sources of as roadside and agricultural ditches) includes those portions in adjacent information may be required to make have been regarded by the Corps as wetlands and downstream to other such determination. Information sources jurisdictional if water from another jurisdictional waters, as long as those may include historic and current jurisdictional water, such as a perennial portions satisfy the flow conditions of topographic maps, historic and recent river, overflows into a ditch and extends paragraph (c)(12). Jurisdiction does not the ordinary high water mark of the extend to upland portions of the ditch aerial photographs, local and state contributing water into the ditch. The prior to entry into an adjacent wetland. records and surface water management Corps has then asserted jurisdiction Consistent with the exclusion in plans, agricultural records, street over the entire ‘‘reach’’ of the ditch paragraph (b)(5), a ditch or portions maintenance data, precipitation records, regardless of the location of the ordinary thereof may also be considered an historic permitting and jurisdictional high water mark in that portion of the adjacent wetland where it was determination records, certain ditch. Under this final rule, the agencies constructed in an adjacent wetland and hydrogeomorphological or soil will continue the existing practice of the portion in that wetland meets the indicators, wetlands and conservation regulating portions of otherwise non- conditions of paragraph (c)(1). programs and plans, and functional jurisdictional ditches as waters of the If ditches were tributaries prior to assessments and monitoring efforts. For United States based on the ordinary their construction and continue to meet example, when a USGS topographic high water mark of the contributing the flow conditions of the ‘‘tributary’’ map displays a tributary located water, but only up to the location of the definition after construction, they are upstream and downstream of a ditch, ordinary high water mark, as mandated jurisdictional as tributaries under the this may indicate that the ditch was by existing Corps regulations. The final rule. The burden of proof lies with constructed in or relocated a tributary. agencies will not, however, assert the agencies to demonstrate that a ditch As another example, an NRCS soil jurisdiction over the entire ‘‘reach’’ of relocated a tributary or was constructed survey displaying the presence of the ditch regardless of the location of in a tributary or an adjacent wetland. specific soil series which are linear in the ordinary high water mark in that For example, if the agencies are not sure nature and generally parallel to a portion of the ditch. Those regulations whether a ditch was constructed in a potential ditch may be indicative of establish the limits of jurisdiction of tributary given the physical appearance alluvial deposits formed by a tributary non-tidal waters of the United States as and functionality of the current ditch, in which the ditch was constructed. extending to the ordinary high water the agencies will review the available mark and not beyond. See 33 CFR evidence to attempt to discern when the In addition, high-resolution aerial 328.4(c). The agencies note that ditch was constructed and the nature of photographs may be used to identify continuing the practice of regulating the landscape before and after whether there are or were characteristics portions of otherwise non-jurisdictional construction. If the evidence does not of a tributary upstream or downstream ditches based on the ordinary high demonstrate that the ditch was located of a ditch, indicating that a ditch may water mark of contributing down- in a natural waterway, the ditch will be have been constructed in or relocated a gradient waters will maintain better non-jurisdictional under this rule. If the tributary. In some cases, stream channel alignment with the rule’s treatment of evidence suggests that the ditch may morphology is visible on the aerial ditches subject to the ebb and flow of have been constructed in a natural photograph along with visible persistent the tide as jurisdictional up to the tidal waterway, the agencies will review the water (e.g., multiple dates of aerial influence. It also provides some available evidence to attempt to discern photography showing visible water) jurisdictional commonality with the whether that natural waterway would providing evidence of the flow treatment of certain lakes, ponds, and qualify as a tributary under this final classification necessary to identify a impoundments and adjacent wetlands rule. Absent such evidence, the agencies tributary under this rule at the time of as jurisdictional based on inundation by will conclude that the ditch is non- ditch construction. However, flooding from other jurisdictional jurisdictional. The same methods above characteristics of tributaries may not be waters. for ditches constructed in a tributary visible in aerial photographs taken in apply when determining the 3. How will the agencies implement the areas with high shrub or tree cover, in jurisdictional status of a ditch final rule? which case aerial photographs or constructed in an adjacent wetland. The agencies have determined that in Note that under this final rule, a ditch satellite imagery taken during ‘‘leaf off’’ order to be jurisdictional under this cannot render an otherwise isolated may provide the most beneficial final rule, a ditch or other similar wetland an ‘‘adjacent wetland’’ and thus information. The burden of proof is on artificial feature would first need to jurisdictional on that basis, unless the the agencies to determine the historic meet the definition of ‘‘ditch’’ (i.e., a ditch itself is a tributary. See Section status of the ditch construction, and if constructed or excavated channel used III.G for further discussion regarding the evidence does not show that the ditch to convey water). Once a feature has jurisdictional status of wetlands under relocated a tributary, was constructed in been determined to meet the definition this final rule. a tributary, or was constructed in an of ‘‘ditch,’’ a ditch would be considered Many commenters noted that historic adjacent wetland, then a determination a tributary where the ditch relocates a conditions at the time of ditch would be made that the ditch is not tributary, is constructed in a tributary, construction could be difficult to jurisdictional under this final rule.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22300 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

F. Lakes and Ponds, and Impoundments should adopt their longstanding open water created by artificially of Jurisdictional Waters treatment of jurisdictional blocking or restricting the flow of a impoundments, retaining jurisdiction river, stream, or tidal area. As used in 1. What are the agencies finalizing? over them even if they are completely this regulation, the term does not The final rule includes a category of disconnected from the tributary system. include artificial lakes or ponds created ‘‘waters of the United States’’ that Others stated that the agencies should by excavating and/or diking dry land to combines lakes, ponds, and regulate impoundments of jurisdictional collect and retain water for such impoundments of jurisdictional waters waters only if they continue to purposes as stock watering, irrigation, into a single category. A lake, pond, or contribute flow to other jurisdictional settling basins, cooling, or rice impoundment of a jurisdictional water waters, arguing for different flow growing.’’ 42 FR 37144. No size meets the definition of ‘‘waters of the regimes (i.e., perennial only, perennial limitation was placed on the 1977 United States’’ if it (1) satisfies any of and intermittent, any hydrologic definitions, and instead, the size the conditions in paragraph (a)(1), i.e., it connection). The agencies have limitations were used as a is a traditional navigable water like Lake considered the full range of comments distinguishing element of the CWA Michigan or Lake Mead; (2) contributes and have finalized a rule that balances section 404 nationwide permit program. surface water flow to the territorial seas these diverse viewpoints, as discussed In 1982, the Corps again published an or a traditional navigable water in a below, while streamlining and interim final rule which combined typical year either directly or through improving the clarity and applicability ‘‘natural lake’’ and ‘‘impoundment’’ into one or more jurisdictional waters; or (3) of the rule and remaining faithful to the one term, ‘‘lake.’’ 47 FR 31794–95 (July is inundated by flooding from a agencies’ statutory authorities as 22, 1982). Commenters stated that paragraph (a)(1) through (3) water in a discussed in Section II.B. impoundments should not be given the typical year. A lake, pond, or same status in the review process as impoundment of jurisdictional waters 2. Summary of Final Rule Rationale and Public Comment natural lakes; however, the Corps does not lose its jurisdictional status if believed that the evaluation of the it contributes surface water flow to a Historically, the Corps’ regulations public interest should be based on what downstream jurisdictional water in a specifically defined ‘‘lakes,’’ ‘‘ponds,’’ the impacts are, and not on whether the typical year through a channelized non- and ‘‘impoundments.’’ In 1975, for area in question is natural or manmade. jurisdictional surface water feature, example, the Corps published an In the 1982 regulations, the Corps through a culvert, dike, spillway, or interim final regulation, 40 FR 31320 defined ‘‘lake’’ as similar artificial feature, or through a (July 25, 1975), that administratively debris pile, boulder field, or similar defined ‘‘lakes’’ as ‘‘natural bodies of a standing body of open water that occurs in natural feature. water greater than five acres in surface a natural depression fed by one or more The agencies had proposed to include area and all bodies of standing water streams from which a stream may flow, that two separate categories for lakes, ponds, occurs due to the widening or natural created by the impounding of [waters of blockage or cutoff of a river or stream, or that and impoundments of jurisdictional the United States]. Stock watering occurs in an isolated natural depression that waters, one for jurisdictional lakes and ponds and settling basins that are not is not a part of a surface river or stream. The ponds and another for jurisdictional created by such impoundments are not term also includes a standing body of open impoundments. The proposal followed included.’’ 40 FR 31325. In response to water created by artificially blocking or the historic treatment of jurisdictional the 1975 regulation, the Corps received restricting the flow of a river, stream, or tidal impoundments in treating them a number of comments and criticisms area. As used in this regulation, the term separately as ‘‘waters of the United regarding the definition of ‘‘lake.’’ Some does not include artificial lakes or ponds States.’’ For lakes and ponds, the stated that the size limitation was too created by excavating and/or diking dry land agencies proposed including them as a small, while others stated that it was too to collect and retain water for such purposes separate waterbody-specific category for as stock watering, irrigation, settling basins, large. Others questioned the legality of cooling, or rice growing. the first time, more clearly tethering imposing any size limitation on natural jurisdiction over those features to the lakes, arguing that a lake fewer than five 47 FR 31811. This same definition was text of the statute and applicable acres in size is as much a ‘‘water of the retained when the Corps issued its Supreme Court guidance. United States’’ as one that is more than consolidated set of regulations in 1986 The agencies received a wide range of five acres in size. In response, the Corps (51 FR 41206, November 13, 1986); public comments on the proposed established two new definitions in 1977, however, the term ‘‘lake’’ was only approach. Many commenters expressed one for ‘‘natural lake’’ and one for retained in the part of the regulations support for including lakes and ponds ‘‘impoundment.’’ 42 FR 37129–30 (July related to ‘‘Permits for Discharges of as a separate category, while others also 19, 1977). The Corps believed the two Dredged or Fill Material into Waters of supported retaining separate treatment definitions would help alleviate the United States’’ (33 CFR 323) and for impoundments of jurisdictional confusion over the broad definition of was not included in the new part waters. Other commenters suggested ‘‘lake’’ provided in 1975. In the 1977 specifically related to the definition of that because lakes, ponds, and regulation, ‘‘natural lake’’ was defined ‘‘waters of the United States’’ (33 CFR impoundments of jurisdictional waters as ‘‘a natural depression fed by one or 328). The definition of ‘‘lake’’ remains are functionally similar they should be more streams and from which a stream in the Corps’ current regulation at 33 treated as a combined category. Some may flow, that occurs due to the CFR 323.2(b), and includes, ‘‘a standing commenters stated that the proposal widening or natural blockage of river or body of open water created by excluded too many lakes and ponds and stream, or that occurs in an isolated artificially blocking or restricting the said that the CWA should apply to such natural depression that is not part of a flow of a river, stream, or tidal area’’ but features regardless of their hydrologic surface river or stream.’’ 42 FR 37144. excludes, ‘‘artificial lakes or ponds surface connection to traditional The Corps believed that definition created by excavating and/or diking dry navigable waters. Others argued that the reflected the three types of situations in land to collect and retain water for such proposal asserted jurisdiction over too which a natural lake may exist. The purposes as stock watering, irrigation, many lakes and ponds. Some 1977 regulation defined settling basins, cooling, or rice commenters stated that the agencies ‘‘impoundment’’ as a ‘‘standing body of growing.’’

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22301

Until this final rule, the definition of impounded features that do not natural features. Similarly, both ‘‘waters of the United States’’ has not otherwise satisfy the jurisdictional naturally occurring (but modified) and included a separate category for lakes requirements of the CWA. Other impounded waters and wetlands may and ponds. To date, the agencies viewed commenters generally found the term have structures, such as culverts, weirs, non-isolated ‘‘lakes and ponds’’ as ‘‘impoundment’’ to be unclear and or pumps, that are designed to manage traditional navigable waters or as part of requested that the agencies include a the movement of water upstream and the tributary system where they met the definition of the term in the final rule. downstream of the structure. The tributary standard. For example, if a The agencies also requested comment agencies conclude that because lakes, tributary enters a standing body of open on whether existing jurisdictional ponds, and impoundments of water in a natural depression, such as a impoundments could become non- jurisdictional waters generally function lake, which then outlets into a jurisdictional if they were no longer similarly across the landscape, they downstream tributary, the lake was regulated as a separate category of should be regulated consistently. considered part of the tributary system ‘‘waters of the United States.’’ In In the final rule, certain lakes, ponds, and the limits of jurisdiction were response, some commenters raised a and impoundments of jurisdictional defined by the ordinary high water mark concern that, if impoundments are waters are waters of the United States unless adjacent wetlands were present. combined into a single category with because these features are waters within Starting in the 1982 regulation, lakes and ponds, adjacent wetlands that the ordinary meaning of the term. As impoundments of waters otherwise are impounded could lose their discussed in Section II.E, the plurality defined as ‘‘waters of the United States’’ jurisdictional status. opinion in Rapanos stated that the term were included as a separate category of The agencies received comments ‘‘the waters’’ is most commonly ‘‘waters of the United States.’’ See 40 stating that lakes and ponds should not understood to refer to ‘‘ ‘streams and CFR 323.2(a)(4) (1983); 47 FR 31810 constitute a separate category of bodies forming geographical features (July 22, 1982). In implementing its jurisdictional waters because these such as oceans, rivers, [and] lakes,’ or regulations, the Corps deemed features do not have a universally- ‘the flowing or moving masses, as of impoundments ‘‘waters of the United accepted definition. Some commenters waves or floods, making up such States’’ when they were created from a stated that the category of lakes and streams or bodies.’ ’’ 547 U.S. at 732 water of the United States, still met ponds may be redundant with other (quoting Webster’s New International another category of ‘‘waters of the categories of waters, such as Dictionary 2882 (2d ed. 1954) (emphasis United States’’ after creation, or were impoundments, and that the extent of added). The plurality also noted that its isolated with a nexus to interstate or wetland vegetation within a shallow reference to ‘‘relatively permanent’’ foreign commerce.51 pond can change over time, making it waters did ‘‘not necessarily exclude In this rulemaking, the agencies difficult to distinguish between wetland streams, rivers, or lakes that might dry proposed to maintain the and pond boundaries in some cases. up in extraordinary circumstances, such ‘‘impoundments’’ category of ‘‘waters of Other commenters agreed that lakes and as drought.’’ Id. at 732 n.5 (emphasis the United States’’ as it existed in the ponds should comprise a separate added). Under the final rule, lakes, ponds, and 1980s regulation and proposed to create category of jurisdictional waters to impoundments that meet the conditions a new category for certain lakes and distinguish them from other features to be a traditional navigable water are ponds. The agencies requested comment such as tributaries and impoundments. Commenters noted that a separate waters of the United States under as to whether a separate category was category could increase regulatory paragraph (a)(1) of this final rule. These needed for impoundments of certainty, as jurisdictional requirements waters are discussed in more detail in jurisdictional waters or whether those may be different for lakes and ponds as Section III.B. It would be redundant to features could be captured in other compared to other categories of waters. include additional regulatory text in the categories of ‘‘waters of the United The agencies have considered these lakes, ponds, and impoundments States,’’ such as the proposed ‘‘lakes and competing public comments and for the category that declares such water ponds’’ category. The agencies received reasons provided below are finalizing features to be jurisdictional if they comments in support of maintaining a the rule with a single category for lakes, satisfy the paragraph (a)(1) standard, as separate category for impoundments, ponds, and impoundments of the agencies had proposed for lakes and which stated that doing so would jurisdictional waters. The agencies agree ponds. For clarity and simplicity, the provide clarity because it is consistent with the commenters that stated lakes, agencies are not including that cross with the agencies’ longstanding ponds, and impoundments function reference in the final rule. practice. Commenters supporting a similarly on the landscape. The final The final rule focuses in large part on separate category for impoundments rule is consistent with the Corps’ the lake’s, pond’s, or impoundment’s also stated that impoundments are existing definition of ‘‘lakes’’ that surface water connection to traditional fundamentally different from lakes and includes impoundments, although its navigable waters or the territorial seas ponds and therefore should be regulated ‘‘lakes’’ definition is not for purposes of so as to remain consistent with the differently. Other commenters defining ‘‘waters of the United States.’’ overall structure and function of the supported combining the two categories See 33 CFR 323.2(b). Like lakes and CWA. See, e.g., SWANCC, 531 U.S. at and stated that lakes, ponds, and ponds, many impoundments are lentic 168 n.3. This final rule presents a impoundments function similarly on systems (i.e., still waters) as opposed to unifying legal theory for federal the landscape and therefore should be tributaries, which are typically lotic jurisdiction over waters and wetlands regulated consistently. These systems (i.e., flowing waters). In many adjacent thereto that maintain a commenters also stated that the agencies areas of the country, lakes and ponds sufficient surface water connection to do not have legal authority to regulate exist only because rivers and other traditional navigable waters or the flowing features or wetlands have been territorial seas and is supported by the 51 See the U.S. Army Corps of Engineers impounded. Impounded features often legal precedent and principles Jurisdictional Determination Form Instructional Guidebook p. 58 at: https:// provide similar commercial articulated in this notice. As discussed usace.contentdm.oclc.org/utils/getfile/collection/ opportunities, water quality benefits, in Section II, the agencies’ authority to p16021coll11/id/2310. and wildlife habitat as compared with regulate ‘‘the waters of the United

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22302 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

States’’ is grounded in Congress’ issued. However, upon further ponds, and impoundments of commerce power over navigation. Given consideration, the agencies conclude jurisdictional waters that do not the broad purposes of the CWA, the that the proposed rule’s requirement for contribute surface water flow to a agencies can choose to regulate beyond perennial or intermittent flow from a paragraph (a)(1) water in a typical year waters more traditionally understood as lake or pond to a downstream paragraph are not jurisdictional for the same navigable but must provide a reasonable (a)(1) water would have severed reasons that streams are excluded if they basis for doing so. Lakes, ponds, and jurisdiction for certain relatively do not contribute surface water flow to impoundments of jurisdictional waters permanent lakes and ponds that are a paragraph (a)(1) water in a typical that contribute surface water flow to regularly ‘‘connected to’’ traditional year. See Section III.D of this notice for traditional navigable waters or the navigable waters via surface water flow. additional discussion on tributaries. The territorial seas in a typical year fall Such regular surface water flows allow agencies do not explicitly define ‘‘lakes within the statutory authorities such waters to connect and become and ponds, and impoundments of delegated to the agencies by Congress. indistinguishable when flowing (i.e., jurisdictional waters’’ in paragraph Federally regulating these features they look like one water). In the final (c)(6) of the final rule to require those effectuates the objective, goals, and rule, the agencies have eliminated the waters to be perennial and intermittent, policies of the CWA. By contrast, the flow classification requirement and as the agencies have required for agencies conclude that when lakes, instead have clarified the types of tributaries in paragraph (c)(12). ponds, and impoundments of features that can provide a sufficient Nonetheless, ephemeral lakes, ponds, jurisdictional waters do not contribute surface water connection between the and impoundments are categorically surface water flow to a traditional lake, pond, or impoundment of a excluded from jurisdiction under navigable water or the territorial seas in jurisdictional water and a downstream paragraph (b)(3) of the final rule. The a typical year, such lakes, ponds, and jurisdictional water in a typical year to key test for jurisdiction is that lakes, impoundments have an insufficient warrant federal jurisdiction consistent ponds, and impoundments of connection to jurisdictional waters to with the CWA. This will simplify jurisdictional waters must contribute warrant federal jurisdiction, unless they implementation of this category. surface water flow to a paragraph (a)(1) are inundated by flooding from a As discussed in Section III.A.3, the water in a typical year. Waters that flow paragraph (a)(1) through (3) water in a agencies have determined that only in direct response to precipitation typical year. Regulating these features channelized non-jurisdictional do not satisfy the permanence element would push the outer limits of the ephemeral features are capable of of the phrase ‘‘relatively permanent agencies’ delegated authorities and providing a sufficient surface water bodies of water’’ and are not infringe on the powers of States to connection and that they do not sever jurisdictional under this final rule. regulate their own land and water jurisdiction if they convey surface water flow between an upstream relatively The agencies conclude that the resources and therefore are not category of lakes, ponds, and jurisdictional under this final rule. permanent jurisdictional water and a downstream jurisdictional water in a impoundments of jurisdictional waters Through this combined category, the in this final rule reflects the limits of the agencies are incorporating common typical year. In other words, an ephemeral feature between an upstream agencies’ authority that the plurality principles from the Rapanos plurality and concurring opinions recognized in and concurring opinions and respecting lake and a downstream jurisdictional water would not sever jurisdiction Rapanos. By requiring a contribution of both the objective and the policy in upstream if the ephemeral feature surface water flow from a lake, a pond, CWA sections 101(a) and 101(b), conveys channelized surface water flow or an impoundment of jurisdictional respectively. sufficient to allow the upstream and waters to a paragraph (a)(1) water in a Some commenters stated that only downstream waters to mix in a typical typical year, the agencies are perennial lakes, ponds, and year. By contrast, the agencies conclude establishing that a mere hydrologic impoundments conveying perennial that diffuse stormwater run-off and connection cannot provide the basis for flow to a downstream paragraph (a)(1) directional sheet flow over upland (non- CWA jurisdiction; the connection must water should be considered ‘‘waters of jurisdictional features under paragraph be a surface water connection that the United States.’’ Other commenters (b)(4)) do not provide a sufficient occurs in a typical year. Such maintained that lakes, ponds, and surface water connection to downstream connection to a paragraph (a)(1) water is impoundments conveying ephemeral jurisdictional waters. Therefore, sufficiently frequent to warrant federal flow to a downstream paragraph (a)(1) upstream lakes, ponds, and jurisdiction. This requirement reflects water should also be considered impoundments that are connected to the Rapanos plurality’s description of a jurisdictional. The agencies proposed downstream jurisdictional waters only ‘‘wate[r] of the United States’’ as ‘‘i.e., a that perennial or intermittent flow from by such flows are not jurisdictional. relatively permanent body of water a lake or pond to a paragraph (a)(1) These types of connections do not connected to traditional interstate water either directly or indirectly satisfy the limiting principles navigable waters.’’ Id. at 742 (emphasis through another jurisdictional water articulated in SWANCC and the added). It is also informed by the could establish jurisdiction. Some plurality and concurring opinions in Rapanos plurality’s rejection of the commenters expressed concern that it Rapanos. overly broad hydrologic connection would be too difficult to determine the Lakes, ponds, and impoundments of theory that the Federal government had flow regime of features connecting lakes jurisdictional waters often contribute advanced in that case. The plurality and ponds to waters of the United surface water flow to other waters in a concluded that the phrase ‘‘the waters of States. The agencies disagree that it manner similar to a tributary. The the United States’’ ‘‘cannot bear the would be too difficult to determine flow agencies conclude that if these features expansive meaning that the Corps regime to establish jurisdiction for lakes contribute surface water flow to would give it,’’ id. at 732, and rejected and ponds as proposed, as the agencies traditional navigable waters or the the notion that ‘‘even the most have been using flow classifications to territorial seas in a typical year, they are insubstantial hydrologic connection make jurisdictional determinations jurisdictional for the same reasons that may be held to constitute a ‘significant since the 2008 Rapanos Guidance was a tributary is jurisdictional. Lakes, nexus.’ ’’ Id. at 728. Justice Kennedy

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22303

further established that ‘‘mere Co., 547 U.S. at 379 n.5 (‘‘[W]e [cannot] non-jurisdictional features do not sever hydrologic connection should not agree that one can denationalize jurisdiction when surface water flow is suffice in all cases; the connection may national waters by exerting private conveyed in a typical year, and that be too insubstantial for the hydrologic control over them.’’). The case did not such flow leads to mixing between an linkage to establish the required nexus address what happens when a water of upstream relatively permanent with navigable waters as traditionally the United States is so altered as to jurisdictional water and a downstream understood.’’ Id. at 784–85. significantly modify its connection to jurisdictional water. Consistent with An impoundment may lose its surface traditional navigable waters, nor did the this discussion, a non-jurisdictional water connection to a downstream cases cited in that opinion. For example, feature remains non-jurisdictional even jurisdictional water due to any number waters of the United States are regularly if it provides a channelized surface of reasons, including consumptive use defederalized under the section 404 water connection between jurisdictional or evaporation or due to the structure permitting program—in some instances waters in a typical year. that was constructed to impound the by transforming portions of traditional Lakes, ponds, and impoundments of water. In the proposed rule, all navigable waters for harbor jurisdictional waters that are inundated impoundments of jurisdictional waters development, and jurisdictional by flooding from a paragraph (a)(1) would be jurisdictional, regardless of wetlands or small tributaries to fast land through (3) water in a typical year are any surface water connection to a for communities and energy also waters of the United States under this final rule. See Rapanos, 474 U.S. at downstream (a)(1) water. The agencies development, and in other instances by 732 (Scalia, J., plurality) (recognizing supported the proposed rule in part by cutting off or separating part of that the term ‘‘the waters’’ within ‘‘the citing the Supreme Court’s decision in jurisdictional waters that nonetheless waters of the United States’’ includes S.D. Warren Co. v. Maine Board of remain waters, as is the case with ‘‘the flowing or moving masses, as of Environmental Protection, 547 U.S. 370 certain causeway construction or waves or floods, making up . . . streams (2006), for the proposition that application of the waste treatment or bodies’’) (emphasis added) (internal impounding a jurisdictional water does exclusion for natural resource quotations omitted); id. at 770 not change its status as a ‘‘water of the development projects. Furthermore, the (Kennedy, J., concurring in the United States.’’ 84 FR 4154, 4172 (Feb. agencies are aware of no decision of the Supreme Court that has ruled that the judgment) (‘‘the term ‘waters’ may mean 14, 2019), citing S.D. Warren Co., 547 ‘flood or inundation’ events that are U.S. at 379 n.5. The agencies solicited indelibly navigable principle applies to all waters of the United States, although impermanent by definition’’) (emphasis comment on the category of added) (internal citations omitted). ‘‘impoundments’’ in the proposed rule, the principle does apply to certain traditional navigable waters or any During times of inundation by flooding including whether impoundments that from a paragraph (a)(1) through (3) release water downstream, but do so decision that would prohibit the United States from consenting to water to a lake, pond, or impoundment less than intermittently, should remain of jurisdictional waters in a typical year, jurisdictional. Some commenters agreed defederalization of a water by a lawfully issued section 404 permit. In this final such a water is indistinguishable from that S.D. Warren Co. would authorize the jurisdictional water from which the disconnected and isolated impounded rule, the agencies have defined ‘‘waters of the United States’’ not to include a flooding originates. waters to remain jurisdictional and Inundation sufficient to establish water—including an impoundment of a supported the agencies’ longstanding jurisdiction occurs only in one jurisdictional water—that lacks a position that such impoundments of direction, from the paragraph (a)(1) sufficient surface water connection to a waters of the United States remain through (3) water to the lake, pond or jurisdictional. Other commenters stated downstream traditional navigable water, impoundment of jurisdictional waters, that impoundments that lack a surface consistent with the principles rendering the feature ‘‘itself a part of connection to a downstream articulated in SWANCC. See SWANCC, those waters’’ ‘‘that are ‘waters of the jurisdictional water should not be 531 U.S. at 168 n.3. Impoundments of United States’ in their own right.’’ waters of the United States. The traditional navigable waters that Rapanos, 547 U.S. at 740, 742 (Scalia, agencies conclude that an impounded continue to meet the criteria in J., plurality). The agencies received a water that lacks a sufficient surface paragraph (a)(1) of this final rule would comment that the inundation water connection to a downstream remain jurisdictional under the CWA. requirement should create jurisdiction if paragraph (a)(1) water in a typical year S.D. Warren is not to the contrary. it occurs in either or both directions, is not a water of the United States. This The agencies recognize that many rather than just from a jurisdictional interpretation of federal regulatory lakes, ponds, and impoundments of water to a lake, pond or impoundment. authority over impoundments is most jurisdictional waters may be connected For the reasons discussed above, the consistent with the scope of authority to other jurisdictional waters by a agencies have concluded that in order to granted by Congress and the legal variety of natural and artificial non- be considered part of the tributary principles articulated in Section II.E of jurisdictional features. The agencies system, the surface water flow from a this notice. On further review and have specified under this final rule that lake, pond, or impoundment of consideration, the agencies observe that lakes, ponds, and impoundments of jurisdictional waters to a paragraph S.D. Warren Co. analyzes the definition jurisdictional waters do not lose their (a)(1) through (3) water needs to occur of ‘‘discharge’’ in CWA section 502(16) jurisdictional status if they contribute with sufficient frequency that the flow but does not grapple with or address the surface water flow to a downstream is channelized in a typical year. Non- subject of this rulemaking—the jurisdictional water in a typical year channelized diffuse overland flow from definition of ‘‘waters of the United through a channelized non- an otherwise isolated waterbody lacks States.’’ The cited footnote in that case jurisdictional surface water feature, the indicia of permanence and merely states that exerting private through a culvert, dike, spillway, or sufficiency necessary to establish control over water flow (an everyday similar artificial feature, or through a jurisdiction, as described in more detail occurrence in many parts of this debris pile, boulder field, or similar in Section III.A.3. Mere hydrologic country) does not ‘‘denationalize’’ natural feature. The agencies describe in surface connection is not enough. Id. at otherwise national waters. S.D. Warren Section III.A.3 of this notice that such 784 (Kennedy, J., concurring in the

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22304 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

judgment). Flooding in a typical year waters is insufficient to assert ‘‘impoundments of jurisdictional from a paragraph (a)(1) through (3) jurisdiction over such waters. See waters’’ if the wetlands being water to a lake, pond, or impoundment Rapanos, 547 U.S. at 741–42 (Scalia, J., impounded first meet the definition of of jurisdictional waters (that is not plurality) (‘‘SWANCC found such ‘‘adjacent wetlands’’ and then meet the otherwise jurisdictional under the tests ecological consideration irrelevant to conditions of the lakes, ponds, and described above) is sufficient to the question whether physically isolated impoundments of jurisdictional waters establish jurisdiction. That is because waters come within the Corps’ category. For example, under the final inundation by flooding in a typical year jurisdiction.’’). Some commenters rule, impounded adjacent wetlands are makes the lake, pond or impoundment requested that the agencies eliminate a jurisdictional as ‘‘impoundments of of jurisdictional waters ‘‘part of’’ the case-specific ‘‘significant nexus’’ jurisdictional waters’’ if they form a jurisdictional water, as may occur, for analysis for lakes and ponds, while feature that meets the conditions of the example, when an oxbow lake is located other commenters supported lakes, ponds, and impoundments of in a former channel of a meandering maintaining a ‘‘significant nexus’’ jurisdictional waters category. That is, river. The agencies note, however, that analysis and identifying jurisdictional adjacent wetlands that are impounded oxbow lakes are not categorically lakes and ponds based on ecological frequently become ponds and may lose jurisdictional under the final rule; to be connections to water features such as their jurisdictional status as adjacent jurisdictional, they must satisfy one or traditional navigable waters and the wetlands because they no longer satisfy more of the conditions of paragraph territorial seas. The agencies have all three factors of the ‘‘wetlands’’ (c)(6). concluded that the lakes, ponds, and definition. The final rule would ensure Some commenters expressed concern impoundments of jurisdictional waters that these waters remain jurisdictional if that, as proposed, lakes and ponds may category should replace existing they satisfy the elements of paragraph be considered jurisdictional due to a procedures that may depend on a case- (c)(6). If those impounded wetlands, single flood event in a typical year and specific ‘‘significant nexus’’ analysis of however, continue to satisfy the suggested incorporating a flood duration the relationship between a particular definition of ‘‘adjacent wetlands,’’ they requirement so that brief, infrequent water feature and downstream would remain jurisdictional as adjacent floods from a paragraph (a)(1) through traditional navigable waters. Lakes, wetlands. In the uncommon (3) water would not cause a lake or ponds, and impoundments of circumstance where an impoundment pond to become jurisdictional. Under jurisdictional waters constitute a completely severs the surface water the final rule, inundation by flooding category of ‘‘waters of the United connection between an adjacent from a paragraph (a)(1) through (3) States’’ that is more consistent and wetland and a jurisdictional water in a water to a lake, pond, or impoundment predictable for members of the public typical year, such that the feature no of jurisdictional waters can occur as a and regulatory agencies to implement longer satisfies the definition of result of seasonal or permanent than a case-specific ‘‘significant nexus’’ ‘‘adjacent wetlands,’’ the wetland would flooding, for example, so long as flood analysis. no longer be jurisdictional under this waters connect such waters to a The approach to lakes, ponds, and final rule. Section III.G of this notice paragraph (a)(1) through (3) water in a impoundments of jurisdictional waters provides additional discussion on typical year and have as their source a in this final rule is also intended to adjacent wetlands. paragraph (a)(1) through (3) water. The avoid ‘‘impairing or in any manner agencies are not including a minimum affecting any right or jurisdiction of the The agencies acknowledge that this number of flood events or duration of States with respect to waters (including final rule represents a change from the flooding that must take place in the boundary waters) of such States.’’ 33 agencies’ longstanding practice course of a typical year, due to the need U.S.C. 1370. For example, lakes, ponds, concerning impoundments of to accommodate regional hydrological and impoundments of jurisdictional jurisdictional waters. Under the 2019 differences. However, a mere hydrologic waters are not waters of the United Rule, notwithstanding the principles of connection between a non-navigable, States if they do not contribute surface SWANCC, impoundments of isolated lake, pond, or impoundment water flow to a traditional navigable jurisdictional waters would be and a jurisdictional water is insufficient water in a typical year or are not jurisdictional under the separate to establish jurisdiction under this rule. inundated by flooding from a paragraph impoundments category regardless of For instance, a lake that may be (a)(1) through (3) water in a typical year. any surface water connection to a connected to a water of the United Rather, they are water resources of the downstream jurisdictional water. The States by flooding, on average, once States (or Tribes), and therefore States agencies now conclude that this prior every 100 years is not jurisdictional. To have an inherent interest in managing interpretation is not supported by the be jurisdictional, a lake, pond, or such features pursuant to the powers text, structure, or legislative history of impoundment of jurisdictional waters reserved to the States under the the CWA, Supreme Court precedent, or that is otherwise physically separated Constitution (and Tribes have analogous the foundational legal principles of this from a water of the United States must interests as well). See., e.g., North final rule. See Section II.E. Justice be inundated by flooding from a Dakota, 127 F. Supp. 3d at 1059. States Kennedy’s concurring opinion also paragraph (a)(1) through (3) water at and Tribes may therefore address such indicates that completely isolated least once during a typical year. Oxbow features under their own laws to the waters are too remote to be regulated lakes, for example, may be jurisdictional extent they deem appropriate. under the Commerce Clause powers. under this category via inundation To address comments that combining See 547 U.S. at 779 (Kennedy, J., where they otherwise may not satisfy the lakes and ponds category with concurring in the judgment) the flow contribution elements of impoundments could result in (‘‘Nevertheless, the word ‘navigable’ in paragraph (c)(6) of the final rule. impounded adjacent wetlands losing the Act must be given some effect. Thus, The agencies have determined that an jurisdiction, the agencies have made in SWANCC the Court rejected the ecological connection between minor modifications to the final Corps’ assertion of jurisdiction over physically separated lakes, ponds, and regulatory text from the proposal. Under isolated ponds and mudflats bearing no impoundments of jurisdictional waters the final rule, impoundments of evident connection to navigable-in-fact and other paragraph (a)(1) through (3) wetlands are jurisdictional as waters.’’ (internal citation omitted)). The

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22305

agencies conclude that this principle 3. How will the agencies implement the ponds, and reservoirs are also should be applied to all waters, whether final rule? represented in NHDWaterbody, where 52 they are impoundments or not. The final Lakes and ponds are naturally formed such features are mapped. The NHD rule is also consistent with the agencies’ through a variety of events, including portrays the spatial geometry and the longstanding practice that a glacial, tectonic, and volcanic activity. attributes of the features. However, as jurisdictional water may be altered and Natural lakes and ponds can also be the agencies recognize in Section IV, made non-jurisdictional by obtaining a subsequently modified to change these tools were not designed to CWA section 404 permit to place fill surface elevation, depth, and size. In indicate the jurisdictional status of material in a wetland or other water, some parts of the country these waters of the United States, and thereby converting that water to fast modified lakes and ponds are referred to limitations associated with these maps land. as impoundments, whether they and data sets may require field- impound or enlarge an existing water of verification for accuracy. Some commenters requested the After identifying a lake, pond, or agencies define the terms ‘‘lake’’ and the United States or modify a non- jurisdictional water; in other areas, impoundment, the next step is to ‘‘pond,’’ but other commenters stated determine whether the lake, pond, or that there were deficiencies in the these may retain lake or pond nomenclature. Lakes, ponds, and impoundment meets the conditions of a proposed alternatives for defining impoundments can be man-made paragraph (a)(1) water under the final ‘‘lakes’’ and ‘‘ponds’’ such as the features constructed for industrial and rule and would therefore be regulated definitions based on size, depth, or the agricultural uses, power generation, under that category. Consistent with the Cowardin classification system domestic water supply, or for aesthetic agencies’ longstanding regulation and developed by the U.S. Fish and Wildlife or recreational purposes. Many lakes, practice, paragraph (a)(3) waters do not Service. Although regional naming ponds, and impoundments have at least include impoundments of non- conventions may vary, the agencies one outflow in the form of a river, jurisdictional waters. If an conclude that the terms ‘‘lake’’ and stream, or drain which maintain a impoundment does not meet the ‘‘pond’’ are well-understood and that feature’s surface water level or stage by conditions of a paragraph (a)(1) water, additional regulatory definitions beyond allowing excess water to discharge. then the agencies must establish what is included in the final rule are not Some lakes, ponds, and impoundments whether the feature is an impoundment necessary. Rather than defining ‘‘lakes’’ do not have an outflow and lose water of a jurisdictional water. The agencies and ‘‘ponds’’ based on their solely by evaporation, underground may use historical and current sources geomorphology or artificial or natural seepage, or consumptive use. Individual of information such as construction status, the agencies have instead defined lakes, ponds and impoundments range plans, permit records, aerial surface water characteristics and in size. Ponds are generally smaller in photography, maps, and remote sensing conditions in paragraph (c)(6) for size than lakes, but regional naming data, as well as topographic information purposes of establishing jurisdiction conventions vary. Lakes are also or relevant field data from site visits, to determine whether an impoundment over lakes and ponds (i.e., standing generally deeper than ponds. Like lakes was created by impounding a bodies of open water that contribute and ponds, impoundments can be large jurisdictional water such as a tributary surface water flow to traditional or small, deep or shallow. Some of these or adjacent wetland. In making a navigable waters or are inundated by waters are jurisdictional under paragraph (a)(3) of the final rule, as jurisdictional determination under this flooding from a paragraph (a)(1) through rule, the agencies would evaluate the (3) water in a typical year). The same is discussed above, while others are non- 53 jurisdictional, particularly many open body of water or wetland. true for the term ‘‘impoundment,’’ If a lake, pond, or impoundment of a artificial lakes and ponds pursuant to which some commenters suggested is jurisdictional water does not meet the paragraph (b), as discussed in Section unclear. The agencies intend the term conditions of a paragraph (a)(1) water, ‘‘impoundment,’’ as it is used in this III.H. Lakes, ponds, and impoundments are then the agencies would determine rule and as it is used in common whether the water directly or indirectly parlance, to mean a standing body of familiar types of waters that can be easily identified by landowners; the contributes surface water flow to a open water that is formed by blocking agencies; local, State, and tribal paragraph (a)(1) water in a typical year, or restricting the flow of a pre-existing governments; consultants; and others. or is inundated by flooding from a river, stream, or tidal area or by blocking The tools discussed in Section III.D of paragraph (a)(1) through (3) water in a or restricting the water of a pre-existing this notice to identify the presence of a typical year. The agencies could use wetland, lake, or pond. Compare potential tributary can also be helpful to similar sources of information Webster’s II, New Riverside University establish the presence of a lake, pond, indicating the existence of a lake, pond, Dictionary (1994) (defining ‘‘impound’’ or impoundment. For example, or impoundment to determine whether to mean to ‘‘confine in’’ or to indication of an enclosed body of water the water feature contributes surface ‘‘accumulate (water) in a reservoir’’). on a USGS topographic map or certain water flow to a paragraph (a)(1) water in This is generally consistent with the waterbody types in the NHD data may Corps’ current definition in 33 CFR 52 See ‘‘Complete FCode list for NHD show that a lake, pond, or Hydrography Features,’’ available at https:// 323.2(b) and should provide sufficient impoundment is present. USGS nhd.usgs.gov/userGuide/Robohelpfiles/NHD_User_ guidance for the public to understand topographic maps often include Guide/Feature_Catalog/Hydrography_Dataset/ the regulation. An impoundment that different symbols to indicate perennial Complete_FCode_List.htm. 53 holds back, blocks, or restricts the flow and intermittent lakes and ponds where The agencies note that the construction of a physical structure that impounds a body of water of a water of the United States is such features are mapped. See (e.g., a dam, berm, or weir) may require a CWA considered ‘‘constructed in’’ that water ‘‘Topographic Map Symbols,’’ available section 404 permit (e.g., when a discharge of for purposes of this final rule, even if at https://pubs.usgs.gov/gip/ dredged or fill material into a jurisdictional water portions of the impounded water also TopographicMapSymbols/ occurs during construction of the impounding structure), in addition to other authorizations which cover areas that were originally upland topomapsymbols.pdf. Waterbodies such may be required, such as a RHA section 9 or section or non-jurisdictional waters. as perennial and intermittent lakes and 10 permit.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22306 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

a typical year. Many commenters (a)(1) water in a typical year. To conditions of paragraph (c)(6), including requested that the agencies identify determine the existence of channelized contributing surface water flow to a specific sources of information that non-jurisdictional surface water features downstream jurisdictional water in a would be used to determine whether (e.g., ephemeral streams or non- typical year. Such contribution could lakes, ponds, and impoundments jurisdictional ditches), culverts, dikes, occur through pumps, flood gates, contribute surface water flow to a water spillways, or similar artificial features, reservoir releases, or other mechanisms. of the United States. A combination of or debris piles, boulder field, or similar The agencies do not distinguish the tools and other resources described natural features, the agencies may use between natural and artificially- in Section III.D.3 may be used to remote sensing data, aerial photography, manipulated surface water flow that establish jurisdiction of a lake, pond, or and field observations. The agencies connects a lake, pond, or impoundment impoundment. For instance, if utilizing may also rely on elevation data, aerial with another water of the United States the NHD, waterbodies that are classified photography, remote sensing data, in a typical year. Furthermore, if an as a lake/pond or a reservoir in the hydrologic models, flow data, field artificial feature such as a dike or dam dataset may have NHDFlowline indicators, operation records, and visual causes a channelized downstream artificial paths represented as flowing observations to determine whether flow perennial or intermittent feature to through them to complete a stream likely occurs through these non- become ephemeral, that channelized network and as a surrogate for general jurisdictional water features in a typical ephemeral feature would be non- water flow direction. Combining this year. jurisdictional under paragraph (b)(3) but information with site visits, climate Lakes, ponds, and impoundments of would not sever jurisdiction of data, and surrounding hydrology data jurisdictional waters that are inundated upstream features as long as it conveys can yield greater certainty as to the by flooding from a paragraph (a)(1) surface water flow in a typical year to presence of a lake, pond, or through (3) water in a typical year are a downstream paragraph (a)(1) water. impoundment, and as to whether the also waters of the United States under In Section III.A.1 of this notice, the feature contributes surface water flow to this rule. Commenters noted that field agencies describe a variety of methods a downstream paragraph (a)(1) water in observations, sometimes based on and data sources that could be used to typical year. These tools may also be multiple site visits, may be necessary to determine whether conditions meet the helpful in indicating whether a lake, determine that a surface water definition of ‘‘typical year.’’ For pond, or impoundment of a connection exists for lakes and ponds as instance, the agencies have developed jurisdictional water is part of the a result of flooding from a traditional and utilized a method for determining tributary network of a paragraph (a)(1) navigable water, tributary, or other normal precipitation conditions. The water. For example, the presence of a jurisdictional lake or pond, or agencies currently use professional ‘‘blue line stream’’ on USGS jurisdictional impoundment. Many judgment and a weight of evidence topographic or NHD maps which commenters also stated that establishing approach as they consider precipitation extends from the feature may indicate a surface water connection based on normalcy along with other available that the lake, pond, or impoundment inundation from a paragraph (a)(1) data sources. The agencies recognize the contributes surface water flow, directly through (3) water to a lake or pond in need to consider seasonality and timing or indirectly through a paragraph (a)(2) a typical year may be difficult to of surface water connections in utilizing through (4) water, to a paragraph (a)(1) implement. The agencies disagree with the data sources described above and this suggestion as they are frequently determining whether lakes, ponds, and water in a typical year, which may asked to complete jurisdictional impoundments meet the conditions of indicate that the feature is determinations when surface water paragraph (c)(6) in the final rule. For jurisdictional. Other complementary connections are not present. In these example, a lake, pond, or impoundment data sources that can be used in cases, the agencies have used a variety of a jurisdictional water may be conjunction with maps to determine the of data sources that do not depend on inundated by flooding from a paragraph potential jurisdictional status of a lake, visual observations of inundation, (a)(1) through (3) water only during pond, or impoundment of a including but not limited to flood seasonally wet conditions. If the jurisdictional water include gage data, records, precipitation data, elevation agencies complete a jurisdictional bathymetry data, elevation data, data, aerial photography, remote sensing determination during seasonally dry spillway height, historic water flow data, and hydrologic models. The conditions and do not visually observe records, flood predictions, statistical agencies will complement remote tools inundation, they may use the multiple evidence, aerial photographs, remote with hydrologic and non-hydrologic tools described above, including remote- sensing data, and hydrologic and non- field observations when necessary to and field-based hydrologic and non- hydrologic field observations. determine the presence of a hydrologic indicators, to determine A lake, pond, or impoundment of a jurisdictional lake, pond, or whether inundation from flooding jurisdictional water does not lose its impoundment due to inundation by would typically occur during seasonally jurisdictional status if it contributes flooding from a paragraph (a)(1) through wet conditions. surface water flow to a downstream (3) water. A few commenters discouraged the jurisdictional water in a typical year The agencies recognize that artificial agencies from relying solely on one through a channelized non- features such as a dike or berm could source of data and recommended that jurisdictional surface water feature; prevent a lake or pond from releasing mapping sources should be paired with through a culvert, dike, spillway, or surface water downstream to a water of remote sensing and field verification similar artificial feature; or through a the United States in a typical year. data. As described above, the agencies debris pile, boulder field, or similar Similarly, a dam could prevent an encourage the use of multiple natural feature. Under the final rule, the impounded water from releasing surface complementary data sources to establish agencies have determined that lakes, water downstream to a water of the the presence of lakes, ponds, and ponds, and impoundments of United States in a typical year. Under impoundments and to determine their jurisdictional waters may be the final rule, lakes, ponds, and jurisdictional status. For example, jurisdictional if they have a channelized impoundments of jurisdictional waters waterbody and flowline features in the surface water connection to a paragraph are jurisdictional if they meet the NHD could be used to determine the

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22307

likelihood of an existing lake, pond, or rule, the agencies define the term otherwise have a direct hydrologic impoundment that has a direct or ‘‘adjacent wetlands’’ to mean wetlands surface connection to other covered indirect surface water connection to a that: (1) Abut a paragraph (a)(1) through waters in a typical year. But the paragraph (a)(1) water. A site visit could (3) water; (2) are inundated by flooding agencies have modified the test to then confirm the existence of the lake, from a paragraph (a)(1) through (3) maintain jurisdiction over wetlands pond, or impoundment, and aerial water in a typical year; (3) are separated from other jurisdictional photography and physical field physically separated from a paragraph waters only by natural berms, banks, or indicators or local knowledge could (a)(1) through (3) water only by a natural dunes as those natural separations are establish the likelihood of recent berm, bank, dune, or similar natural evidence of a dynamic and regular inundation. Finally, the agencies could feature; or (4) are physically separated direct hydrologic surface connection determine whether climatic conditions from a paragraph (a)(1) through (3) between the resources based on the meet the definition of ‘‘typical year’’ water only by an artificial dike, barrier, agencies’ technical expertise and using, for example, the method for or similar artificial structure so long as experience. The agencies have also determining normal precipitation that structure allows for a direct simplified and expanded the type of conditions described in Section III.A.1 hydrologic surface connection between surface water connections that are not of this notice, combined with other the wetlands and the paragraph (a)(1) jurisdictional themselves but can relevant sources of information such as through (3) water in a typical year, such nevertheless maintain jurisdictional the Palmer Drought Severity Index. as through a culvert, flood or tide gate, connectivity between wetlands and Many commenters noted that the pump, or similar artificial feature. other waters of the United States that availability of data records and tools Under the final rule, an adjacent are separated only by artificial dikes and may vary across the country. The wetland is jurisdictional in its entirety other barriers. The agencies have also agencies have determined that the when a road or similar artificial expanded jurisdiction, as compared to information provided by the tools structure (i.e., not naturally occurring) the proposal, over wetland complexes described herein and other available divides the wetland, as long as the that are crossed by roads and similar information will vary in availability and structure allows for a direct hydrologic structures if those structures allow for a accuracy in different parts of the surface connection through or over that surface water connection between the country, and will take that into account structure in a typical year. segregated wetland portions (such as when utilizing their expert judgment in By retaining the term ‘‘adjacent’’ in through a culvert through a roadway) in evaluating the information prior to the definition from the longstanding a typical year. determining the jurisdictional status of regulations, the agencies are continuing Many commenters supported the a lake, pond, or impoundment of a to use terminology that is familiar to the proposal as establishing an appropriate jurisdictional water. agencies and the regulated public. As balance between Federal and State Some commenters asked whether proposed, however, the agencies are not jurisdiction over wetlands. Others stated features could simultaneously be including the terms ‘‘bordering, that the proposal regulated too broadly. excluded from regulation as artificial contiguous, or neighboring’’ from the Still others asserted that the proposal lakes and ponds, but also meet the previous regulations to reduce the too narrowly interpreted the agencies’ definition of jurisdictional potential confusion associated with CWA authorities and restricted impoundments. As discussed in Section using three seemingly similar terms in jurisdiction over many ecologically III.H of this notice, paragraph (b)(8) of the same definition. See, e.g., U.S. important wetlands. The agencies have the final rule specifies that the artificial General Accounting Office, Waters and considered the diverse range of lakes and ponds exclusion does not Wetlands, GAO–04–297, at 10 (Feb. comments and are finalizing a rule that apply to jurisdictional impoundments. 2004) (‘‘The regulations specify that results in a balance of these competing An artificial lake or pond will be adjacent means ‘bordering, contiguous, views while adhering to the agencies’ excluded even if it satisfies the or neighboring’.... This definition of delegated authorities under the CWA definition in paragraph (c)(6), so long as adjacency leaves some degree of and avoiding the outer limits of such it was constructed or excavated in interpretation to the Corps districts.’’); authority. see also id. at 3 (‘‘Districts apply Like the proposed rule, this final rule upland or in non-jurisdictional waters different approaches to identify maintains the longstanding regulatory and is not a jurisdictional wetlands that are adjacent to other definition of ‘‘wetlands’’ in paragraph impoundment. In other words, waters of the United States and are (c)(16) to mean ‘‘those areas that are paragraph (b)(8) is designed to exclude subject to federal regulation.’’). Instead, inundated or saturated by surface or artificial lakes and ponds that are the agencies use the term ‘‘abut’’ to ground water at a frequency and constructed in upland or non- clearly identify those waters that are duration sufficient to support, and that jurisdictional waters, even where they inseparably bound up with other under normal circumstances do support, may have a surface water connection to jurisdictional waters, in addition to the a prevalence of vegetation typically a downstream jurisdictional water in a other clear tests for adjacency in this adapted for life in saturated soil typical year. final rule. conditions. Wetlands generally include G. Adjacent Wetlands The final rule adopts categorical tests swamps, marshes, bogs, and similar for adjacency that are like those areas.’’ This is a well-established 1. What are the agencies finalizing? included in the proposal, but upon definition that is familiar to regulators, The agencies are finalizing a category consideration of the public comments environmental consultants, and the of ‘‘waters of the United States’’ to received, the agencies have enhanced scientific community. The agencies include all adjacent wetlands to: The the final definition to improve its clarity received many public comments urging territorial seas and traditional navigable and ease of implementation, and to them to maintain this definition, while waters (paragraph (a)(1) waters); include additional wetlands that, upon certain other commenters suggested the tributaries to those waters (paragraph further consideration, the agencies agencies adopt different formulations. In (a)(2) waters); and lakes, ponds, and conclude should be subject to federal this final rule, the agencies have impoundments of jurisdictional waters jurisdiction. Like the proposal, adjacent retained the longstanding definition (paragraph (a)(3) waters). In this final wetlands are those that abut or unchanged, as proposed.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22308 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

Consistent with the proposal, the development and use (including biological connections that the agencies are finalizing a definition of restoration, preservation, and commenters believed are important to ‘‘upland’’ to mean any land area above enhancement) of land and water restoring and maintaining the chemical, the ordinary high water mark or high resources . . . .’’ 33 U.S.C. 1251(b); see physical, and biological integrity of the tide line that does not satisfy all three also Rapanos, 547 U.S. at 737 (Scalia, J., nation’s waters and was therefore wetland factors (i.e., hydrology, plurality). Under this final rule, incompatible with section 101(a) of the hydrophytic vegetation, and hydric wetlands that do not abut a paragraph CWA. soils 54) under normal circumstances, as (a)(1) through (3) water, are not The agencies do not view the scope of described in the Corps’ 1987 Wetlands inundated in a typical year by a their authority as limited to wetlands Delineation Manual. Features that were paragraph (a)(1) through (3) water, or are that abut traditional navigable waters, once wetlands but have been naturally physically separated from a paragraph nor do they view their authorities as transformed or lawfully converted to (a)(1) through (3) water by more than a limited to wetlands that physically upland (e.g., in compliance with a CWA natural barrier and lack a direct touch other jurisdictional waters. The section 404 permit) are considered hydrologic surface connection to a agencies also do not view the Rapanos upland under the final rule. For paragraph (a)(1) through (3) water in a plurality opinion as narrowly as some convenience, the agencies are including typical year, as described in paragraph commenters suggest. However, the existing Corps definitions for (c)(1), are not inseparably bound up classifying all wetlands as jurisdictional ‘‘ordinary high water mark’’ and ‘‘high with the ‘‘waters of the United States.’’ is clearly inconsistent with the CWA tide line’’ from 33 CFR 328.3 in the Such non-adjacent wetlands are more and Supreme Court guidance, and such EPA’s regulations, as those terms are appropriately regulated by States and expansive federal jurisdiction would not used in the final definition of ‘‘upland.’’ Tribes pursuant to their own authorities. allow for the appropriate delineation This final rule establishes a clear, between federally-regulated waters and 2. Summary of Final Rule Rationale and predictable regulatory framework that State and tribal land and water Public Comments can be implemented in the field. resources. The same is true for asserting Under the final rule, the ‘‘adjacent Some commenters supported the federal authority over isolated wetlands wetlands’’ definition is based on the agencies’ proposed definition of that lack hydrological surface text, structure, and legislative history of ‘‘adjacent wetlands’’ and stated that it connection to other jurisdictional the CWA and on the core principles and adheres to the key Supreme Court waters, or that connect hydrologically concepts set forth in the three Supreme decisions, the CWA, and the only infrequently. The agencies agree Court cases addressing the scope of the Constitution. Other commenters stated with commenters who said that the phrase ‘‘the waters of the United that the proposal struck an appropriate revised definition should be based on States,’’ as discussed at length in balance between retaining federal the law and science; however, the Section II.E.2. Adjacent wetlands form jurisdiction over wetlands that are truly agencies recognize that science cannot part of the waters of the United States adjacent to, and therefore inseparably dictate where to draw the line between if they are ‘‘inseparably bound up with bound up with, jurisdictional waters Federal and State or tribal waters, as the ‘waters’ of the United States.’’ and leaving isolated and disconnected those are legal distinctions that have Riverside Bayview, 474 U.S. at 134. Non- wetlands subject to the laws of States been established within the overall adjacent wetlands, on the other hand, and Tribes. Other commenters opposed framework and construct of the CWA. are isolated from waters of the United the agencies’ proposed definition In short, the agencies recognize that States and are non-jurisdictional for the because it included wetlands that abut the scope of CWA jurisdiction over reasons discussed below and in Section more than traditional navigable waters, wetlands has confounded courts, III.A of this notice. This rule’s wetlands that may not physically touch members of the regulated community, categorical treatment of adjacent other jurisdictional waters, and regulators, and the public for decades. wetlands balances the objective in CWA wetlands that lack a continuous There are widely varying views as to section 101(a) to ‘‘restore and maintain hydrologic surface connection to such which wetlands should be covered, and the chemical, physical, and biological waters. Several commenters, for why. The different views in Rapanos integrity of the nation’s waters,’’ 33 example, interpreted the plurality and of Rapanos highlight the U.S.C. 1251(a), and the clear policy opinion in Rapanos as requiring a complexity of the issue. In this final direction in CWA section 101(b) to constant surface water connection to rule, the agencies have considered the ‘‘recognize, preserve, and protect the reach beyond the water’s edge. law, the science, and the multiple primary responsibilities and rights of Some commenters recommended that perspectives that have been offered over States to prevent, reduce, and eliminate all wetlands be deemed jurisdictional. the years and in response to the pollution [and] to plan for the Other commenters stated that the agencies’ proposal. The agencies believe agencies’ proposal was arbitrary and that the proposal was a lawful and 54 See Corps’ 1987 Wetlands Delineation Manual capricious, was inconsistent with the appropriate interpretation of agency at 9–10 (‘‘Wetlands have the following general CWA, and that narrowing CWA authority under the CWA, but as diagnostic environmental characteristics: (1) jurisdiction over adjacent wetlands described further below, the agencies Vegetation. The prevalent vegetation consists of should be based more on scientific have made some modifications in the macrophytes that are typically adapted to areas having hydrologic and soil conditions . . . considerations than on legal ones. Other final rule to better incorporate common Hydrophytic species, due to morphological, commenters stated that the agencies’ principles from the Rapanos plurality physiological, and/or reproductive adaptation(s), proposed definition was inconsistent and concurring opinions and to strike a have the ability to grow, effectively compete, with the Riverside Bayview and better balance that furthers both the reproduce, and/or persist in anaerobic soil conditions.... (2) Soil. Soils are present and have Rapanos decisions, particularly Justice objective and the policy in CWA been classified as hydric, or they possess Kennedy’s concurring opinion in sections 101(a) and 101(b), respectively. characteristics that are associated with reducing soil Rapanos. Some commenters stated that The agencies also recognize that the conditions.... (3) Hydrology. The area is the direct hydrologic surface connection definition of ‘‘adjacent wetlands’’ in the inundated either permanently or periodically at mean water depths ≤6.6 ft. or the soil is saturated requirement in the proposed rule would final rule differs from the regulatory to the surface at some time during the growing not sufficiently protect certain wetlands definition that the Supreme Court season of the prevalent vegetation.’’). with hydrological, chemical, and addressed in Riverside Bayview, but as

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22309

discussed in Section II.E.2.a of this relied in Riverside Bayview—and upon understandable guidance as to which notice, a court’s deference to an which the dissent repeatedly relies wetlands lie in such close proximity to agency’s interpretation of a statute does today . . . [–] provided an independent jurisdictional waters that they are not foreclose an agency from adopting basis for including entities like considered categorically jurisdictional alternative interpretations. This final ‘wetlands’ (or ‘ephemeral streams’) under the CWA. rule adopts an alternative interpretation, within the phrase ‘the waters of the As discussed in Section II.E.2, the but it is based on the text, structure, and United States.’ SWANCC found such plurality in Rapanos characterized the legislative history of the CWA, ecological considerations irrelevant to scope of CWA jurisdiction over additional Supreme Court instruction the question whether physically isolated wetlands as encompassing wetlands, developed since Riverside Bayview, the waters come within the Corps’ like those at issue in Riverside Bayview, reasoned policy choices of the executive jurisdiction.’’ (emphasis in original)); with a ‘‘continuous surface connection’’ branch agencies authorized by Congress see also, e.g., id. at 778 (Kennedy, J., or a ‘‘continuous physical connection’’ to implement the Act, and the agencies’ concurring in the judgment) to a navigable water. Rapanos, 547 U.S. technical and scientific expertise (‘‘[E]nvironmental concerns provide no at 742, 751 n.13 (Scalia, J., plurality). administering the CWA over nearly five reason to disregard limits in the Justice Kennedy’s concurrence decades. statutory text.’’). recognized that ‘‘the connection ‘‘In determining the limits of [their] In this rule, wetlands adjacent to between a nonnavigable water or power to regulate discharges under the paragraph (a)(1) through (3) waters are wetland and a navigable water may be Act,’’ the agencies according to the categorically jurisdictional. The so close, or potentially so close, that the Supreme Court in Riverside Bayview, agencies adopt this position based on Corps may deem the water or wetland ‘‘must necessarily choose some point at the rationale that an adjacent wetland is a ‘navigable water’ under the Act.’’ Id. which water ends and land begins.’’ 474 ‘‘inseparably bound up with’’ the at 767 (Kennedy, J., concurring in the U.S. at 132. ‘‘Where on this continuum jurisdictional water; if the water is judgment). Wetlands that abut another to find the limit of ‘waters’ is far from jurisdictional, so is the adjacent jurisdictional water have a continuous obvious[,]’’ but the Court has wetland. Riverside Bayview, 474 U.S. at surface or physical connection to those subsequently identified some additional 134; Rapanos, 547 U.S. at 740 (Scalia, waters and are therefore inseparably limiting principles to help guide the J., plurality) (‘‘ ‘Faced with such a bound up with them. See, e.g., id. at 740 agencies. In SWANCC, the Supreme problem of defining the bounds of its (Scalia, J., plurality). Court held that the agencies do not have regulatory authority,’ we held, the Wetlands that abut other authority to regulate nonnavigable, agency could reasonably conclude that jurisdictional waters are adjacent under isolated, intrastate waters that lack a a wetland that ‘adjoin[ed]’ waters of the this final rule even absent evidence of sufficient connection to a traditional United States is itself a part of those a hydrologic surface connection navigable water, as regulation of those waters.’’) (quoting Riverside Bayview, occurring between the two, as not all waters would raise constitutional 474 U.S. at 132, 135 & n.9). The abutting wetlands display surface water questions regarding the scope of CWA Riverside Bayview Court also as the wetland hydrology factor but authority. 531 U.S. at 172. The plurality acknowledged ‘‘that a definition of rather may have saturated soils, a high opinion in Rapanos added that it did ‘waters of the United States’ water table, or other indicators of not consider certain wetlands to be encompassing all wetlands adjacent to hydrology. In this final rule, an abutting jurisdictional under the Act, other bodies of water over which the wetland is ‘‘adjacent’’ regardless of specifically, wetlands with only an [agencies have] jurisdiction is a where ‘‘the moisture creating the ‘‘intermittent, physically remote permissible interpretation of the Act,’’ wetlands . . . find[s] its source.’’ hydrologic connection to ‘waters of the 474 U.S. at 135, and Justice Kennedy Rapanos, 547 U.S. at 772 (Kennedy, J., United States,’ ’’ as those ‘‘do not added in Rapanos that ‘‘the assertion of concurring in the judgment) (citing implicate the boundary-drawing jurisdiction for those wetlands is Riverside Bayview, 474 U.S. at 135), so problem of Riverside Bayview.’’ 547 U.S. sustainable under the Act by showing long as the wetland touches the at 742. Justice Kennedy’s concurring adjacency alone.’’ 547 U.S. at 780. The jurisdictional water at one point or side. opinion in Rapanos adds that in some balance of this subsection describes the In other words, while a surface water instances, as exemplified by the ‘‘ponds four ways in which the agencies will exchange between a wetland and a and mudflats that were isolated in the assert categorical jurisdiction over paragraph (a)(1) through (3) water under sense of being unconnected to other adjacent wetlands under this final rule. this final rule is evidence that the waters covered by the Act,’’ ‘‘there may Consistent with the proposal, under wetland is abutting, such an exchange is be little or no connection’’ ‘‘between a this final rule, wetlands are considered not required under the definition for nonnavigable water or wetland and a indistinguishable from other wetlands that abut. The inclusion of navigable water,’’ and jurisdiction under jurisdictional waters, and therefore are abutting wetlands without a surface the Act may be lacking. Id. at 766–67. adjacent, when they abut such waters. water exchange with a paragraph (a)(1) The final rule is consistent with The agencies clarify in the final rule that through (3) water adheres to Justice SWANCC and the Rapanos plurality the term ‘‘abut’’ means ‘‘to touch at least Kennedy’s statement that ‘‘[g]iven the and concurring opinions in that it at one point or side.’’ See Webster’s II, role wetlands play in pollutant filtering, would exclude isolated wetlands with New Riverside University Dictionary flood control, and runoff storage, it may only physically remote hydrologic (1994) (defining ‘‘abut’’ to mean ‘‘to well be the absence of a hydrologic connections to jurisdictional waters. touch at one end or side of something’’). connection (in the sense of interchange Ecological connections likewise do not ‘‘Abut’’ as used in this final rule is also of waters) that shows the wetlands’ provide an independent basis for consistent with the common significance for the aquatic system.’’ Id. including physically isolated wetlands understanding of the term ‘‘adjacent,’’ at 786. within the phrase ‘‘the waters of the which means ‘‘next to,’’ ‘‘adjoining,’’ ‘‘to The agencies recognize that the United States.’’ See, e.g., id. at 741–42 lie near,’’ or ‘‘close to.’’ See id. The term categorical inclusion of adjacent (Scalia, J., plurality) (‘‘SWANCC rejected ‘‘abut’’ is therefore intended to provide wetlands beyond wetlands that the notion that the ecological members of the regulated community ‘‘actually abut[ ]’’ navigable-in-fact considerations upon which the Corps with clear, predictable and waters, like those addressed in Riverside

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22310 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

Bayview, 474 U.S. at 135, is dependent (plurality opinion) (internal citations adjacency occurs only in one direction, on the relationship between the other and quotations omitted). The plurality from the paragraph (a)(1) through (3) categories of ‘‘waters of the United also declared that ‘‘[w]etlands with only water to the wetland, which provides a States’’ and waters more traditionally an intermittent, physically remote direct hydrologic surface connection understood as navigable. The agencies hydrologic connection to ‘waters of the from a jurisdictional water to a wetland, believe that the definition of ‘‘tributary’’ United States’ do not implicate the thereby rendering the wetland ‘‘itself a in this final rule, as described in Section boundary-drawing problem of Riverside part of those waters’’ ‘‘that are ‘waters III.D, appropriately limits federal Bayview, and thus lack the necessary of the United States’ in their own right.’’ jurisdiction to those rivers and streams connection to covered waters that we Rapanos, 547 U.S. at 740, 742 (Scalia, that due to their relatively permanent described as a ‘significant nexus’ in J., plurality). Inundation can occur as a flow regime and contribution of surface SWANCC.’’ Id. at 742. Similarly, Justice result of infrequent, seasonal, or water flow to navigable waters in a Kennedy stated that ‘‘the connection permanent flooding, for example, so typical year are ‘‘significant enough that may be too insubstantial for the long as inundation occurs in a typical wetlands adjacent to them are likely, in hydrologic linkage to establish the year and has as its source a paragraph the majority of cases, to perform required nexus with navigable waters as (a)(1) through (3) water. The typical year important functions for an aquatic traditionally understood.’’ Id. at 784–85 requirement ensures that the hydrologic system incorporating navigable waters.’’ (Kennedy, J., concurring in the surface connection occurs regularly and Rapanos, 547 U.S. at 781 (Kennedy, J., judgment). Justice Kennedy also is not ‘‘unduly speculative.’’ Although concurring in the judgment). Because believed that ‘‘possible flooding’’ could ‘‘flood or inundation events . . . are the ‘‘tributary’’ definition as finalized be an unduly speculative basis for a impermanent by definition,’’ id. at 770 ‘‘rests upon a reasonable inference of jurisdictional connection between (Kennedy, J., concurring in the ecological interconnection’’ with wetlands and other jurisdictional judgment), when a jurisdictional water navigable waters, and adjacent wetlands waters. Id. at 786. inundates a wetland by flooding on a must abut, be inundated by flooding In this final rule, wetlands are not regular basis, those waterbodies are part from, or be physically separated from adjacent simply because a hydrologic of the same aquatic system. connection between jurisdictional tributaries only by certain natural The agencies received comments that waters and wetlands is possible or if, for features or by artificial structures that the inundation requirement should example, wetlands are connected by allow for a direct hydrologic surface create jurisdiction over a wetland if it flooding once every 100 years or by connection and are thus ‘‘inseparably occurs in either or both directions, bound up with’’ tributaries, the agencies directional sheet flow during or following storm events. Instead, rather than only from a jurisdictional conclude that the assertion of water to the wetland as proposed. The jurisdiction over wetlands adjacent to wetlands are considered ‘‘adjacent’’ if they are inundated by flooding from a agencies disagree and conclude in this tributaries ‘‘is sustainable under the Act final rule that it is the inundation of by showing adjacency alone.’’ Id. at 780 paragraph (a)(1) through (3) water in a typical year. The typical year water from the paragraph (a)(1) through (citing Riverside Bayview, 474 U.S. at (3) water to a wetland, and not vice 134). The ‘‘tributary’’ definition in this requirement, described further in Section III.A.1, ensures that a sufficient versa, that indicates the wetland is final rule—which is appropriately inseparably bound up with the limited to address the ‘‘breadth of [the] surface water connection occurs and that the connection is not merely paragraph (a)(1) through (3) water. standard’’ about which Justice Kennedy ‘‘possible’’ or ‘‘speculative.’’ Riverside Flooding from a nearby wetland to a was concerned in Rapanos, id. at 781, Bayview held that flooding was not paragraph (a)(1) through (3) water is is consistent with and finds support in necessary to assert jurisdiction over more like diffuse stormwater run-off and the Court’s conclusion in Riverside wetlands that abut jurisdictional waters, directional sheet flow over upland, Bayview ‘‘that a definition of ‘waters of but it also indicated that wetlands which the agencies have concluded are the United States’ encompassing all created by flooding from a jurisdictional not sufficient to create or maintain wetlands adjacent to other bodies of water could be jurisdictional. See federal jurisdiction. See Section III.A.3 water over which the Corps has Rapanos, 547 U.S. at 773–74 (Kennedy, for more information on this topic. jurisdiction is a permissible J., concurring in the judgment) Wetlands connected to jurisdictional interpretation of the Act.’’ 474 U.S. at (characterizing Riverside Bayview to waters by only such means are more 135. find that jurisdiction may be appropriately regulated by the States In assessing the appropriate ‘‘limits of appropriate ‘‘even for wetlands that are and Tribes under their sovereign ‘waters’ ’’ on the continuum between not the result of flooding or authorities. If the surface water open waters and dry land, this rule’s permeation’’). The agencies conclude in communication from a wetland to a definition balances the inclusion of this final rule that wetlands that are jurisdictional water is more frequent, for certain wetlands beyond those that inundated by flooding from a paragraph example as regular groundwater merely abut jurisdictional waters with (a)(1) through (3) water in a typical year elevation rise expressed through the the fact that ‘‘mere hydrologic are inseparably bound up with and are wetland similar to groundwater connection should not suffice in all part of the jurisdictional water. That is intersecting the bed of perennial or cases.’’ Rapanos, 547 U.S. at 784 because flooding in a typical year intermittent stream), then that flow from (Kennedy, J., concurring in the creates a continuous surface connection the wetland will likely channelize and judgment). The Rapanos plurality with another jurisdictional water during form a jurisdictional tributary to a questioned the Corps’ broad the flood event, or, in the terminology downstream water which the wetland interpretation of its regulatory authority of the agencies’ proposal, a direct would then abut (because it would be to ‘‘conclude that wetlands are hydrologic surface connection. touching the tributary at a single point ‘adjacent’ to covered waters if they are Wetlands can be inundated by where the tributary left the wetland). If hydrologically connected through flooding from a paragraph (a)(1) through the flow is not channelized, it suggests directional sheet flow during storm (3) water in a typical year when, for a more attenuated connection. events or if they lie within the 100-year example, a tributary’s flow overtops its Alternatively, if the overland flow floodplain of a body of water.’’ Id. at 728 banks. Inundation sufficient to establish frequently reaches a jurisdictional water

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22311

but does not channelize, it likely will only by a natural berm, bank, dune, or a riparian area or fluvial terrace) is not form wetland characteristics in the flow similar natural feature are jurisdictional sufficient to indicate a direct path that could meet the definition of without regard to a specific hydrologic hydrological surface connection. The wetland that abuts the jurisdictional surface connection in a typical year. agencies also clarify that wetlands water. In this final rule, wetlands are separated from jurisdictional waters by Some commenters requested categorically adjacent if they are cliffs, bluffs, or canyon walls are not clarification on the frequency and physically separated from a paragraph adjacent on the basis of being separated amount of inundation required to (a)(1) through (3) water only by a natural from a jurisdictional water only by a establish adjacency. The agencies have berm, bank, dune or similar natural natural barrier because such features clarified in the final rule that feature. Such wetlands do not require a prohibit regular surface water inundation occurs via flooding. hydrologic surface connection to a communication between jurisdictional Inundation need only occur at least paragraph (a)(1) through (3) water to be waters and such wetlands. once in a typical year to establish ‘‘adjacent wetlands’’ in the final rule, Some commenters said that a wetland adjacency for wetlands with no nor is this provision of the ‘‘adjacent must immediately abut a jurisdictional particular requirement for the volume or wetlands’’ definition tied to the ‘‘typical water to be adjacent. Other commenters duration of inundation. See Section year’’ construct. This is a change from recommended that wetlands perched III.A.1 for additional discussion of the the proposal that reflects the agencies’ atop the riverbank of an incised stream ‘‘typical year,’’ which allows for further consideration and conclusion be considered adjacent. The agencies flexibility in determining when the that certain wetlands that were have modified the final rule to include precipitation and other climatic excluded from jurisdiction by the wetlands as ‘‘adjacent’’ when they are variables are within the normal periodic proposed rule are in fact regularly separated only by a natural berm, bank, range. Others commented that bankfull connected to jurisdictional waters such dune, or similar feature. Some flow, which describes the flow that just that they are inseparably bound up with commenters recommended that natural fills the channel, most commonly occurs such waters, as many commenters berms not sever adjacency because such every 1.5 years, and therefore higher noted. In this final rule, the agencies features form naturally in undisturbed magnitude flows which cause conclude that the presence of a natural rivers as a result of sediment deposits inundation from a river or stream to a berm, bank, dune, or similar natural associated with routine flooding. The riverine wetland may not occur in every feature indicates that a sufficient surface agencies agree that natural berms and calendar year or in every ‘‘typical year.’’ water connection occurs between the similar natural features are indicators of The agencies note that an event that jurisdictional water and the wetland. a direct hydrologic surface connection may occur under ‘‘typical year’’ For example, a natural river berm can be as they are formed through repeated conditions does not necessarily occur in created by repeated flooding and hydrologic events. It follows that every calendar year. This is because the sedimentation events when a river wetlands separated from paragraph typical year is based on a rolling 30-year overtops its banks and deposits (a)(1) through (3) waters only by such period of record, which necessarily sediment between the river and a berms and similar natural features includes variability from year to year wetland.55 The wetland could have should not sever adjacency. The over that 30-year period. One method been formed at the same time as or after formation of dunes between wetlands for calculating ‘‘normal precipitation’’ the formation of the natural river berm and connected waters often occurs, for requires comparing precipitation totals due to repeated flooding and the example, in interdunal wetlands in for a given period to the 30th to 70th impeded return flow created by the coastal areas or around parts of the percentiles of precipitation totals from berm. Adjacent wetlands separated only Great Lakes. These wetlands are often the same dates over the 30-year period, by a bank from a paragraph (a)(1) formed through wind erosion which as described in Section III.D.3. This through (3) water can also occur when results in the sand surface interacting range could correspond to a variety of there is an elevation difference between with the water table, providing enough flood recurrence intervals and flow the wetland and the paragraph (a)(1) hydrology to create wetlands. They may magnitudes depending on the through (3) water (e.g., when the stream also be formed when water levels drop geographic area, time of year, climate, is incised). The surface water flow of the in lakes or from historic glacial retreat. and other factors. Some typical years tributary over time can erode a channel Many interdunal wetlands have will be more wet, and others will be to contain the tributary which separates seasonally variable hydroperiods where more dry, but the ‘‘typical year’’ itself from the adjacent wetland by a they may be dry during periods of low definition in this final rule is intended bank. As with berms, these banks are rainfall. These processes and the to reflect the characteristics of a indicators of a regular surface water resulting natural berm, bank, dune or waterbody at times that are not connection and being inseparably similar natural feature indicate that the abnormally wet or dry based on the bound up with the tributary’s aquatic wetlands are integrated and specific historical characteristics of the system. The agencies clarify that while ‘‘inseparably bound up’’ with the water or wetland. The agencies expect natural barriers may at times occur paragraph (a)(1) through (3) waters to that bankfull discharge flows will occur within a floodplain, the existence of a which they are adjacent. Accordingly, in a typical year in many riverine floodplain generally (and other land the agencies conclude in this final rule systems such that those flooded masses similar to a floodplain, such as that wetlands are adjacent wetlands if wetlands will be jurisdictional under they are physically separated from a the final rule. Additionally, the bankfull 55 See, for example, Connectivity of Stream and paragraph (a)(1) through (3) water only Wetlands to Downstream Waters: A Review and discharge flow conditions—and Synthesis of the Scientific Evidence, p. A–7, by a natural berm, bank, dune, or sediments carried in those flood waters defining a ‘‘levee (natural)’’ as a ‘‘broad, low ridge similar natural feature. While this and deposited landward—commonly or embankment of coarse silt and sand that is category of ‘‘adjacent wetlands’’ differs create a natural river berm between the deposited by a stream on its floodplain and along from the proposed rule, these types of either bank of its channel. Natural levees are formed active channel and nearby wetlands. As by reduced velocity of flood flows as they spill onto adjacent wetlands have been included described below, wetlands separated floodplain surfaces and can no longer transport the in prior regulations defining ‘‘waters of from paragraph (a)(1) through (3) waters coarse fraction of the suspended sediment load.’’ the United States,’’ and their inclusion

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22312 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

in the final rule is consistent with the Under this final rule, the definition of connection between the wetland and agencies’ longstanding practice. See 42 ‘‘adjacent wetlands’’ also encompasses jurisdictional water in a typical year, FR 37129; see also 51 FR 41251 wetlands that are physically separated and those wetlands would not be (‘‘Wetlands separated from other waters from a paragraph (a)(1) through (3) adjacent. of the United States by man-made dikes water only by an artificial dike, barrier, In this section of the final rule, the or barriers, natural river berms, beach or similar artificial structure, so long as agencies retained the concept of direct dunes and the like are ‘adjacent that structure allows for a direct hydrologic surface connection from the wetlands.’ ’’) (emphasis added). hydrologic surface connection between proposed rule, but modified it for ease Under the final rule, wetlands may be the wetlands and the paragraph (a)(1) of implementation. The proposed rule separated from a paragraph (a)(1) through (3) water in a typical year, such would have required that for such through (3) water by only one natural as through a culvert, flood or tide gate, wetlands, a direct hydrologic surface feature, such as a single river berm or pump, or similar artificial feature. connection occurs as a result of dune, in order to be considered Although this final rule differs from the inundation from a jurisdictional water adjacent. The agencies intend for proposal in this respect, these types of to a wetland or via perennial or wetlands separated by several natural adjacent wetlands have been defined as intermittent flow between a wetland features, such as a series of natural ‘‘waters of the United States’’ in prior and a jurisdictional water in a typical berms or a foredune and a backdune, regulations (although those prior year. Some commenters supported the from the paragraph (a)(1) through (3) regulations did not require the direct use of perennial or intermittent flow water to be too remote from the hydrologic surface connection that this classifications to establish a direct jurisdictional water and therefore non- final rule requires to occur in a typical hydrologic surface connection from a adjacent. In another example, where year). See 42 FR 37129 (July 19, 1977). wetland to a jurisdictional water in a there is a paragraph (a)(1) water, then a Some commenters recommended that typical year. Other commenters stated dune landward of the paragraph (a)(1) tide gates, as well as pumps in managed that the concept was confusing and that water, followed by a wetland, followed aquatic systems, be allowed to maintain the requirement to identify a perennial by another dune and then another sufficient surface water connections for or intermittent connection could create wetland, the first wetland is an purposes of determining adjacency. The implementation challenges. The ‘‘adjacent wetland’’ but the second agencies agree and have modified the agencies have been using flow distant wetland is not. final rule to include wetlands with a classifications to make jurisdictional Wetlands are not ‘‘adjacent wetlands’’ direct hydrologic surface connection determinations since the 2008 Rapanos if they are adjacent merely to another through or over such structures to a Guidance was issued, and are familiar wetland; rather under the final rule, paragraph (a)(1) through (3) water in a with and can manage existing wetlands are jurisdictional only if they typical year. A flood gate may be implementation challenges. However, to are adjacent to paragraph (a)(1) through designed to restrict water flow other provide additional clarity and to (3) waters. This position is consistent than in times of high water. Under the improve and streamline with the agencies’ longstanding final rule, a flood gate, culvert, pump, implementation, the agencies have regulations. See 51 FR 41206, 41250 or similar structure that allows for and simplified the proposal’s approach to (Nov. 13, 1986) (defining ‘‘waters of the is used to maintain a direct hydrologic establishing adjacency and have United States as including ‘‘wetlands surface connection between a eliminated the requirement that a adjacent to’’ other jurisdictional ‘‘waters wetland maintain a perennial or jurisdictional water and a wetland at (other than waters that are themselves intermittent connection to the any point in a typical year satisfies the adjacent)’’). For example, if there is an jurisdictional water in a typical year. In definition of ‘‘adjacent wetlands.’’ intervening wetland between the subject the final rule, a direct hydrologic wetland and a tributary, and the Some artificial structures may allow surface connection in a typical year, intervening wetland is adjacent to the for frequent direct hydrologic surface regardless of the flow classification, is tributary but is not part of the same connections between the wetland and sufficient to demonstrate that the wetland as the subject wetland (e.g., the paragraph (a)(1) through (3) water, wetland and jurisdictional water are they are separated by upland), the while others may not. Under the final inseparably bound up. subject wetland is not adjacent to the rule, a direct hydrologic surface By not including a flow classification tributary unless it satisfies the connection through an artificial requirement for direct hydrologic conditions of paragraph (c)(1) in its own structure must occur at least once in a surface connections in paragraph (c)(1), right (e.g., if it is inundated by flooding typical year to establish adjacency. the agencies anticipate that more from the tributary in a typical year). In When an artificial structure separating a wetlands will be regulated as ‘‘adjacent addition, this final rule does not allow wetland from a paragraph (a)(1) through wetlands’’ under the final rule as for a ‘‘chain’’ of wetlands which may be (3) water does not allow for a direct compared to the proposal. The final rule connected hydrologically via hydrologic surface connection in a will also be easier to implement, as groundwater, shallow subsurface flow, typical year, the wetland is not adjacent. landowners and regulators can easily overland sheet flow, or non-wetland For example, although some artificial discern if an artificial structure exists swales to be considered adjacent to each structures (e.g., a levee) may have and whether that structure likely allows other or to a paragraph (a)(1) through (3) subsurface connections through porous for a direct hydrologic surface water simply because one of the soils, this final rule requires the connection to occur in a typical year. wetlands in the chain is adjacent to the structure to allow for direct hydrologic See Section III.G.3 for additional paragraph (a)(1) through (3) water. surface connection between a paragraph discussion on implementation. Wetlands that exhibit this type of ‘‘fill (a)(1) through (3) water and a wetland Under this final rule, an adjacent and spill’’ scenario are not ‘‘adjacent in a typical year for the wetland to be wetland is jurisdictional in its entirety wetlands’’ under this final rule if the adjacent. Similarly, if a culvert or a when a road or similar artificial wetlands can be delineated separately pump conveys water from a wetland to structure divides the wetland, as long as from each other, with upland or non- a jurisdictional water only during a 100- the structure allows for a direct jurisdictional waters or wetlands year storm, such features would not hydrologic surface connection through between them. allow for a direct hydrologic surface or over that structure in a typical year.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22313

This aspect of the final rule was for consideration as to whether the the proposal appropriately required a modified from the proposal but is wetland meets the terms of adjacency. If regular surface water connection to consistent with establishing jurisdiction any portion of a wetland, including create jurisdictional ‘‘adjacent over wetlands physically separated by these physically interconnected wetlands.’’ Given that the focus of this artificial structures that provide a direct wetlands, is adjacent to a paragraph rule’s definition of ‘‘adjacent wetlands’’ hydrologic surface connection in a (a)(1) through (3) water, the entire is on the ordinary meaning of the term typical year. A road that divides one wetland is adjacent. See Riverside ‘‘waters,’’ common principles from wetland into two parts (or multiple Bayview, 474 U.S. at 135 (‘‘Because Supreme Court guidance, and balancing roads that divide one wetland into respondent’s property is part of a the policy in CWA section 101(a) with multiple parts) does not change the wetland that actually abuts on a the limitations on federal authority jurisdictional status of an ‘‘adjacent navigable waterway, respondent was embodied in CWA section 101(b), the wetland’’ under this final rule so long as required to have a permit in this case.’’) agencies are finalizing the definition of a direct hydrologic surface connection is (emphasis added). Physically remote ‘‘adjacent wetlands’’ that does not maintained through a culvert or similar isolated wetlands are not adjacent include subsurface hydrologic feature or over the structure (e.g., water wetlands under this rule. connectivity as a basis for determining overtopping the road at an engineered Some commenters expressed concern adjacency, consistent with the proposed low point) which enables a direct that allowing artificial barriers to sever rule. The agencies believe that hydrologic surface connection in a jurisdiction of a wetland that would implementation of subsurface typical year between the otherwise otherwise be adjacent to a jurisdictional connections as a basis for CWA separated portions of the adjacent water would create incentives for the jurisdiction would be overinclusive and wetland. With a direct hydrologic illegal construction of such barriers. The would encroach on State and tribal surface connection, the bisected agencies note that construction of an authority over land and water resources. wetland is still functioning as one artificial barrier such as a berm may not See Section II.E.2.a. for further wetland and is jurisdictional as one sever jurisdiction under the final rule, discussion of the legal principles adjacent wetland. But for the road, the depending on the circumstances. For underlying the agencies’ interpretation wetland portions would be one intact example, if the barrier allows for a of the surface connection requirement. adjacent wetland, and thus the agencies direct hydrologic surface connection in A groundwater or subsurface connection have determined that it is appropriate to a typical year, jurisdiction is not could also be confusing and difficult to treat the separated portions as one severed. Alternatively, a CWA section implement, including in the adjacent wetland, so long as the 404 permit may be issued with determination of whether a subsurface structure allows for a direct hydrologic applicable mitigation requirements for a connection exists and to what extent. surface connection through or over that structure that does not allow for a direct The categorical inclusion of ‘‘adjacent structure in a typical year. Where more hydrologic surface connection in a wetlands’’ as defined in the final rule than one road crosses a wetland, and the typical year and therefore severs will include some wetlands that connect first allows for continued direct jurisdiction of the wetland. In addition, to other jurisdictional waters through hydrologic surface water connection to although the agencies recognize that subsurface flow, such as some that abut a jurisdictional water but the second relevant factual issues bear on the or are separated by natural berms and does not, the wetlands on the far side of legality of construction at any particular related features. However, these site, the agencies do not intend this rule the second road are not part of the wetlands must meet one of the four to allow artificial barriers illegally adjacent wetland. This modification to criteria established in paragraph (c)(1) to constructed under the CWA to sever the final rule addresses comments that be ‘‘adjacent wetlands’’ and are not jurisdiction of a wetland that would stated that prior road construction adjacent based simply on a subsurface otherwise be adjacent to a jurisdictional activities may not have fully mitigated hydrologic connection to jurisdictional water. To be clear, this final rule does for the loss of jurisdictional wetlands. waters. Physically remote wetlands and not modify the CWA prohibition on other wetlands that do not meet the Commenters raised questions about unauthorized discharges, such as the final rule’s definition of ‘‘adjacent the jurisdictional status of wetland unlawful construction of a barrier in a wetlands’’ are reserved to regulation by complexes under the proposed rule. jurisdictional wetland. Construction States and Tribes as land and water Consistent with the proposal, the final that is unlawful under the CWA remains rule establishes that if a wetland can be subject to the agencies’ enforcement resources of those States and Tribes. delineated from another wetland by authorities. See Section III.A.3 of this A few commenters recommended that upland or other separation (other than a notice for further discussion of what the agencies establish an administrative road or similar artificial structure does or does not sever jurisdiction. boundary for adjacency, such as a linear dividing a wetland that allows for a Some commenters stated that adjacent distance from a jurisdictional water to direct hydrologic surface connection wetlands should include constructed provide clarity. Other commenters through or over that structure in a and restored wetlands. The agencies stated that establishing distance typical year) then each wetland will be agree and do not view a wetland’s status thresholds or limits would be considered separately for purposes of as constructed, restored, rehabilitated, inappropriate and arbitrary. After determining adjacency. These separate modified, or natural as affecting its considering these comments, the wetlands are not adjacent to each other jurisdictional status if it meets the agencies are not including any distance even if a hydrologic surface connection definitions of both ‘‘wetlands’’ and thresholds or limits to determine is present between them. Where ‘‘adjacent wetlands’’ under the final adjacency in the final rule, consistent wetlands in a complex of wetlands have rule. with the proposal. Indeed, the agencies a continuous physical surface Several commenters stated that believe that it would be difficult to connection to one another such that groundwater and subsurface select a boundary that is not arbitrary upland boundaries or dikes, barriers, or connections between a wetland and a for a rule that applies to so many other structures cannot distinguish or paragraph (a)(1) through (3) water diverse situations nationwide. In delineate them as physically separated, should be sufficient to establish addition, it can be difficult to identify the entire area is viewed as one wetland adjacency. Other commenters stated that a starting point from which to measure

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22314 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

an administrative boundary. While for determining whether wetlands are basis for including physically isolated distance thresholds for establishing jurisdictional as adjacent. Under the wetlands within the phrase ‘‘the waters CWA jurisdiction over wetlands may be agencies’ Rapanos Guidance, this of the United States.’’ See, e.g., too arbitrary and difficult to establish, evaluation required individual analyses Rapanos, 547 U.S. at 741–42 (Scalia, J., however, the same is likely not true for of the relationship between a particular plurality); see also id. at 778 (Kennedy, determining lead permitting wetland (or group of wetlands J., concurring in the judgment). responsibility when States or Tribes aggregated together with its nearest Some commenters recommended the assume section 404 permitting authority tributary) with traditional navigable agencies incorporate more scientific under 33 U.S.C. 1344(g). In assumed waters. Importantly, Justice Kennedy’s analysis in their interpretation of the programs, the question for adjacent ‘‘significant nexus’’ test for wetlands proper scope of ‘‘adjacent wetlands’’. wetlands is which regulatory authority adjacent to non-navigable tributaries The definition of ‘‘adjacent wetlands’’ is responsible for permitting, not was only needed ‘‘absent more specific and the categorical treatment of whether the wetlands themselves are regulations,’’ id. at 782 (Kennedy, J., jurisdiction over wetlands adjacent to waters of the United States. concurring in the judgment), because other jurisdictional waters is informed Some members of the public ‘‘the breadth of [the then-existing by science, though it is not dictated by commented that adjacent wetlands tributary] standard . . . seems to leave science alone. For example, the EPA’s should include all wetlands within the wide room for regulations of drains, SAB noted when reviewing the Draft 100-year floodplain. Other commenters ditches, and streams remote from any Connectivity Report in 2014, that disagreed and stated that wetlands with navigable-in-fact water and carrying ‘‘[s]patial proximity is one important a one percent annual chance of flooding only minor water volumes towards it’’ determinant of the magnitude, should not be considered waters of the and thus ‘‘precludes its adoption as a frequency and duration of connections United States. Under the final rule, determinative measure of whether between wetlands and streams that will although not all wetlands in the 100- adjacent wetlands are likely to play an ultimately influence the fluxes of water, year floodplain are jurisdictional, many important role in the integrity of an materials and biota between wetlands adjacent wetlands will be located within aquatic system comprising navigable and downstream waters.’’ SAB Review the 100-year floodplain of a waters as traditionally understood.’’ Id. at 60. ‘‘Wetlands that are situated jurisdictional water. In addition to the at 781. In light of the ‘‘more specific alongside rivers and their tributaries are other tests for adjacency, flooding in a [tributary] regulations’’ in this final rule, likely to be connected to those waters typical year may occur in portions of the the agencies are eliminating the case- through the exchange of water, biota 100-year floodplain. For example, specific significant nexus analysis and chemicals. As the distance between wetlands which are inundated by through categorical treatment of all a wetland and a flowing water system flooding from a paragraph (a)(1) through adjacent wetlands, as defined by this increases, these connections become (3) water in a typical year may be rule, as ‘‘waters of the United States.’’ less obvious.’’ Id. at 55 (emphasis floodplain wetlands, or wetlands which The agencies recognize that this is a added). The Connectivity Report also are physically separated from a new position and modifies prior agency recognizes that ‘‘areas that are closer to paragraph (a)(1) through (3) water only positions on Justice Kennedy’s rivers and streams have a higher by a natural berm or dune may be concurring opinion in Rapanos. The probability of being connected than floodplain wetlands. The agencies also agencies also recognize that several areas farther away.’’ Connectivity Report at ES–4. The agencies considered these recognize that it can be difficult to courts have adopted the significant measure a floodplain’s extent as and other scientific principles described nexus standard as a test for jurisdiction floodplains are not mapped everywhere above in crafting this final rule; for both adjacent wetlands and in the country. In any event, the however, as discussed in Section II.E of tributaries. For all the reasons described agencies believe that including wetlands this notice, the line between Federal in Section II.E, the agencies are as adjacent due solely to their presence and State waters is a legal distinction, finalizing a rule that is more consistent in the 100-year floodplain goes beyond not a scientific one, that reflects the with the body of Supreme Court the scope of the agencies’ legal authority overall framework and construct of the guidance, including the origins of the under the CWA and contravenes CWA. This rule’s definition draws the significant nexus standard, and their Supreme Court guidance. See, e.g., legal limit of federal jurisdiction in a authority under the Act, than were Rapanos, 547 U.S. at 746 (Scalia, J., clear and implementable way that plurality) (‘‘the Corps’ definition of previous regulations. The agencies adheres to established legal principles, ‘adjacent,’ . . . has been extended believe that this final rule achieves the while being informed by the policy beyond reason to include, inter alia, the goals of the Act and provides better choices and scientific expertise of the 100-year floodplain of covered waters’’). clarity for the regulators and the executive branch agencies charged with Consistent with the proposal, the regulated community alike, while administering the CWA. agencies are not including a floodplain adhering to the basic principles Consistent with the proposal, the criterion (e.g., a general floodplain articulated in Rapanos, SWANCC, and agencies are retaining the longstanding requirement or a specific floodplain Riverside Bayview. definition of ‘‘wetlands’’ in this final interval requirement) to determine Some commenters recommended rule. Some commenters expressed adjacency in the final rule. including as waters of the United States support for this approach. Some Some commenters recommended that specific waters based solely on commenters requested that the agencies the agencies include wetlands with a ecological importance, such as prairie clarify that a wetland must satisfy all significant nexus to navigable waters as potholes. Other commenters urged the three wetland delineation factors to be jurisdictional while others supported agencies to finalize a rule consistent considered a wetland under the rule. the agencies’ proposed approach to with Supreme Court guidance which Other commenters requested that the remove the case-specific significant directs that ecological considerations do agencies clarify the term ‘‘normal nexus analysis from the determination not provide an independent basis for circumstances’’ as used in the definition of jurisdiction. This final rule ends the federal jurisdiction. As noted above, of ‘‘wetlands,’’ and suggested that the agencies’ practice of conducting case- under the final rule’s definition, term should not apply when higher than specific significant nexus evaluations ecological connections alone are not a normal rainfall conditions are present.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22315

Commenters also requested clarification water at one point. In addition, and legal principles outlined in Section II.E. on whether human alteration affects consistent with the proposal and Culverts or other structures conveying ‘‘normal circumstances.’’ Riverside Bayview, the final rule does water through an artificial barrier, such The agencies have clarified that the not require surface water exchange as a levee or a road, can maintain presence and boundaries of wetlands between wetlands and the jurisdictional jurisdiction in the final rule if they are determined based upon an area waters they abut to create the provide a direct hydrological surface satisfying all three of the definition’s jurisdictional link. 474 U.S. at 134. connection between a wetland and a factors (i.e., hydrology, hydrophytic Abutting occurs when the wetland jurisdictional water in a typical year. vegetation, and hydric soils) under delineated boundary touches the Where a wetland is physically separated normal circumstances. This is evident delineated boundary of the paragraph from a tributary by a manmade levee in the final definition of ‘‘upland’’ in (a)(1) through (3) water, which does not and such artificial structure has a paragraph (c)(14). The agencies have require a direct hydrologic surface culvert connection through the levee, also clarified that certain elements of connection because not all wetlands the culvert is visibly apparent and can the ‘‘adjacent wetlands’’ definition have standing or flowing surface water be easily observed for efficiency in include a ‘‘typical year’’ requirement to as their wetland hydrology factor. For identifying it as potentially providing a ensure that the jurisdictional status of example, some wetlands may have direct hydrologic surface connection. In wetlands is being assessed under saturated soils or a high water table, and other locations, pumps may be used to conditions that are not too wet and not these are also indicators of wetland control water levels. In some scenarios, too dry. In addition, the agencies hydrology. Abutting occurs at the the pumps are continually operating to consider climatic conditions when interface between the adjacent wetland maintain flow conditions, and in other delineating wetlands, for example, and the paragraph (a)(1) through (3) scenarios, they are turned on only when whether there are drought conditions or water. In the field, the agencies would flood conditions are present. Pumps can conditions of unusually high rainfall. identify the presence of a paragraph move water through the artificial The term ‘‘typical year’’ is not intended (a)(1) through (3) water and delineate structure or over it. A pump can create to modify the agencies’ current the boundary of such water at the lateral a direct hydrologic surface connection implementation of normal extent identified by the ordinary high in a typical year between paragraph circumstances. water mark or high tide line, depending (a)(1) through (3) waters and their The agencies recognize that there on which is appropriate. See 33 CFR adjacent wetlands. Tide gates can also have been questions over time about the 328.4. The agencies would then allow for a direct hydrologic surface jurisdictional status of ditches that are delineate the wetlands within the connection in a typical year between not maintained. Under this final rule, as review area to determine whether the wetlands and the paragraph (a)(1) discussed in more detail in Section III.E, wetland boundary touches the through (3) water to which they are when a ditch constructed in an adjacent paragraph (a)(1) through (3) water adjacent under the final rule. As long as wetland contributes less than perennial boundary at any point or side. The a feature present within the artificial or intermittent flow to a paragraph (a)(1) wetlands need not abut for a specific structure allows for a direct hydrologic water in a typical year and yet, due to duration in order to be considered surface connection between the wetland lack of maintenance, gains wetland abutting. For example, wetlands that and a paragraph (a)(1) through (3) water characteristics, that ditch may be abut a tributary only during the wet or in a typical year, the wetland is an viewed as an adjacent wetland if it rainy season remain adjacent under this adjacent wetland even if flow is not meets the definition of both ‘‘wetlands’’ final rule. Similarly, if a wetland abuts present at the time of observation. The under paragraph (c)(16) and ‘‘adjacent an intermittent tributary it remains agencies may not assume the presence wetlands’’ under paragraph (c)(1). abutting even when water is not present of such artificial features; rather they in the tributary. Wetlands abutting an 3. How will the agencies implement the may identify such artificial features via ephemeral stream or other non- final rule? on-site observations or remotely using jurisdictional feature are non- construction design plans, permitting If a wetland satisfies this rule’s jurisdictional even if the non- data, state and local information, or definition of ‘‘wetlands’’ and ‘‘adjacent jurisdictional feature maintains levee or drainage district information. wetlands’’ it is considered a water of the jurisdiction between upstream and As is the case with jurisdictional United States without need for further downstream waters. analysis. This categorical inclusion, Some commenters stated that surface determinations made under any however, does not alleviate the need for connections may not be present or regulatory regime, site-specific site-specific verification of jurisdiction, identifiable year-round. Many verification may be required in certain such as confirmation of wetland commenters questioned whether the use instances where remote tools may not be characteristics, whether the wetlands of remote tools could identify the readily available or accurate or in other, meet the final rule’s definition of necessary connections and stated that often more complex site scenarios. ‘‘adjacent wetlands,’’ and other issues field indicators and site-specific A wetland flooded by a navigable typically addressed during a verification for wetland connections water, on average, once every 100 years jurisdictional determination process. may be needed. In addition, would not satisfy the final rule’s This rule provides a definition of commenters requested clarification on ‘‘adjacent wetlands’’ definition. Such ‘‘adjacent wetlands’’ that includes systems with modifications, such as inundation via flooding must occur wetlands that abut, meaning to touch at dikes, levees, and other man-made from a paragraph (a)(1) through (3) least at one point or side of, a water structures. water at least once in a typical year for identified in paragraph (a)(1), (2), or (3). The agencies modified the final rule purposes of adjacency. The agencies Such abutting wetlands need not abut language from the proposal in response may determine that inundation by the paragraph (a)(1) through (3) water to many of these comments to provide flooding or a direct hydrologic surface along the entire length of a delineated additional clarity and ease of connection exists during a typical year wetland boundary to be considered implementation, while remaining using, for example, USGS stream gage adjacent. Rather, the wetlands need only faithful to the overall text, structure, and records, recurrence intervals of peak touch the paragraph (a)(1) through (3) legislative history of the CWA and the flows, wetland surface water level

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22316 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

records, visual observation, aerial meets the terms of the definition. For would not allow for a wetland to imagery, flood records, inundation example, if a wetland is present on become adjacent under this rule. Such modeling techniques and tools (e.g., either side of a road which has a direct temporary structures are not considered Hydrologic Engineering Centers River hydrologic surface connection via a normal circumstances when considering System Analysis System, or HEC–RAS, culvert connecting both parts of the whether a wetland may be adjacent. or tools available from USGS through wetland in a typical year, the agencies For purposes of adjacency under the their Flood Inundation Mapping need not recreate the history of the road rule, the entire wetland is considered program), or engineering design records. construction and what the conditions on adjacent if any portion of the wetland The agencies may also need to complete the ground were at time of road meets the terms of the definition under one or more site visits to collect field construction. Rather, the agencies will paragraph (c)(1), regardless of the size indicators of inundation. For example, observe the artificial structure and will and extent of the wetland. For example, the presence of water marks, sediment note whether the artificial structure if a portion of one side of a wetland and drift deposits, water-stained leaves, allows for a direct hydrologic surface physically touches a tributary, then the or algal mats may indicate that an connection such that the wetlands on wetland is jurisdictional in its entirety. inundation event has recently occurred. both sides of the road can connect via Determining the entire wetland to be The agencies believe that it is also surface hydrology in a typical year. If so, adjacent if any portion of it satisfies the important to consider weather and then the wetlands are considered one ‘‘adjacent wetlands’’ definition is climatic conditions, i.e., to review wetland. consistent with longstanding practice. recent precipitation and climate records, As a general matter and consistent The agencies have found this approach to ensure the feature is not being with longstanding practice, the agencies to be simpler and easier to implement assessed during a period of drought or take a physical separation as they find in the field than establishing a means of after a major precipitation or infrequent it. The physical separation will be administratively bifurcating wetlands. flood event. Tools for determining evaluated in its current form (unless An adjacent wetland that changes whether climatic conditions meet the normal circumstances are not present or classification (e.g., as defined in definition of ‘‘typical year’’ are where there is evidence of unlawful Cowardin et al. 1979) within the overall described in Section III.A.1 of this activity or efforts to circumvent wetland delineated boundary due to notice. jurisdiction, in which case, the landscape position, hydrologic In addition, under this final rule an separation will be evaluated using other inundation, or other factors, such as adjacent wetland divided by an artificial tools to approximate normal changing from salt marsh to brackish to structure, such as a road or railroad line, circumstances). If a dike is originally freshwater wetland, is jurisdictional as is treated as a single wetland and is designed not to allow for a direct one adjacent wetland. jurisdictional in its entirety as long as hydrologic surface connection between Certain wetland indicators may not be the structure allows for a direct a paragraph (a)(1) through (3) water and present year-round in a typical year due hydrologic surface connection through wetlands on the other side of the dike, to normal seasonal or annual variability. or over that structure in a typical year. but later a culvert is added to provide Adjacent wetlands under this final rule The direct hydrologic surface adequate drainage in a typical year or a include wetlands with alternating connection can occur through or over pump is added to provide flood hydroperiods and seasonal wetlands the artificial structure, such as through protection in a typical year, these with vegetation shifts. Consistent with a culvert, or as is present in some areas, features create a direct hydrologic the agencies’ longstanding practice, the over roads designed to overtop during surface connection between the delineated boundary of a seasonal certain conditions. Without a direct jurisdictional water and the wetlands. In wetland remains constant, even though hydrologic surface connection in a this scenario, the wetlands become all three delineation factors may not be typical year, only that wetland (i.e., that adjacent wetlands. If a natural feature is apparent year-round. This approach portion of the original wetland) which modified or changes over time (as when acknowledges seasonal variation in meets the terms of the definition of a berm develops over time separating a visible wetland factors as well as the ‘‘adjacent wetlands’’ under paragraph wetland from a paragraph (a)(1) water) variation in hydrology and climatic (c)(1) would be an adjacent wetland, the agencies intend to take the feature conditions across the country. For even if there is a subsurface hydrologic as they find it, determine whether it is example, seasonal wetlands with connection (e.g., shallow subsurface a natural physical separation, and then vegetation shifts may display flow or aquifer) between the wetlands consider whether the wetland is hydrophytic vegetation abutting another present on either side of the road or adjacent. Pumps are considered to be water of the United States throughout other artificial structure. To identify the the ‘‘normal’’ circumstances of the the year except during the dry season. direct hydrologic surface connection hydrology when they are permanently Also, wetlands with alternating through or over a road or other artificial present and are serviceable. Pumps hydroperiods that abut another water of structure, the agencies may use tools create adjacency under the final rule the United States in the arid West may similar to those that are used to identify when they are permanent features have hydrology present only for three a direct hydrologic surface connection which allow for a direct hydrologic months while otherwise similar through an artificial structure, such as a surface connection in a typical year wetlands in the Southeast may have dike. through an artificial structure between a hydrology present for nine months. To implement this aspect of the rule wetland and the paragraph (a)(1) Wetland hydrology indicators that as applied to a particular wetland, the through (3) water. require direct observation of surface agencies will first need to determine Temporary structures are not subject water or saturated soils are often present whether the wetland is adjacent to a to the ‘‘take it as they find it’’ principle. only during the normal wet portion of paragraph (a)(1) through (3) water. The Their presence is intended to modify the growing season and may be absent agencies will then need to consider the the relationship between the paragraph during the dry season. The wetland conditions on the ground in order to (a)(1) through (3) water and a wetland hydrology factor is often much more determine whether the divided parts of for only a limited duration of time. For variable on short time scales than the the wetland should be considered one example, a temporary culvert in place hydrophytic vegetation and hydric soil adjacent wetland, where it otherwise for three months during construction factors, especially in seasonal wetlands

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22317

like some bottomland hardwood forests common landscape features and land paragraph (c)(14) and specify in the which can lack flooding or saturation. uses that are more appropriately regulatory text that certain water Some commenters noted that a ditch regulated, if at all, under the sovereign features constructed or excavated in constructed in an adjacent wetland can authorities of States and Tribes. For upland or in non-jurisdictional waters drain water and create a zone of example, the final rule excludes are excluded from the definition of influence which may render the entire groundwater from the definition of ‘‘waters of the United States.’’ In the wetland non-jurisdictional under the ‘‘waters of the United States,’’ including final rule, ‘‘upland’’ means any land proposed rule. Under this final rule, a groundwater drained through area that under normal circumstances wetland must first be considered subsurface drainage systems, reflecting does not satisfy all three wetland adjacent to a paragraph (a)(1) through the agencies’ longstanding practice. The characteristics identified in the (3) water before a ditch constructed in rule creates a new exclusion for definition of ‘‘wetlands’’ (hydrology, it may be considered a tributary. ephemeral features, including hydrophytic vegetation, hydric soils) Therefore, the wetland may still be ephemeral streams, swales, gullies, rills, and does not lie below the ordinary high jurisdictional as an adjacent wetland to and pools, and excludes diffuse water mark or the high tide line of a the paragraph (a)(1) through (3) water stormwater run-off and directional sheet jurisdictional water. The term is used in under (c)(1) even if the ditch’s zone of flow over upland. Adhering more six of the exclusions listed in paragraph influence reduces the extent of the closely to the agencies’ original (b), and the definition is intended to wetland around the ditch, as the interpretation of the CWA, the rule provide additional clarity as the wetland’s jurisdictional status is not excludes ditches from the definition of agencies implement the exclusions directly tied to the ditch. Historical and ‘‘waters of the United States’’ except while also informing the application of current aerial photographs, NWI maps, those ditches identified as jurisdictional the ‘‘adjacent wetlands’’ definition. See NRCS soils maps, and other similar under paragraph (a)(1) or (2) and those Section III.G of this notice. resources may indicate whether a ditch ditches constructed in adjacent The agencies received a broad range was constructed in an adjacent wetland. wetlands that do not meet the flow of comments on the proposed rule’s list There may also be certain instances conditions of the definition of of exclusions, some stating that the where a ditch has lawfully drained a ‘‘tributary’’ but that meet the conditions exclusions provide necessary clarity wetland. of paragraph (a)(4). The agencies are while allowing the regulated retaining an exclusion for prior community to plan investments in H. Waters and Features That Are Not converted cropland but are defining it infrastructure and other projects with Waters of the United States for the first time in regulatory text. The increased regulatory certainty and 1. What are the agencies finalizing? agencies are also retaining an exclusion predictability. Others expressed support for waste treatment systems. for the new exclusion in paragraph In paragraph (b) of the final rule, the The final rule also excludes (b)(1), stating that it clarified that if a agencies are codifying twelve exclusions artificially irrigated areas, including water is not jurisdictional under from the definition of ‘‘waters of the fields flooded for agricultural paragraph (a), it is not subject to CWA United States.’’ Many of the exclusions production, that would revert to upland jurisdiction. Other commenters reflect longstanding agency practice and should application of irrigation water to supported the inclusion of definitions are expressly included in the final rule that area cease. In addition, the rule for prior converted cropland and waste to ensure predictability, as the agencies excludes artificial lakes and ponds, treatment systems, acknowledging that continue to implement them in the including water storage reservoirs and the new definitions help clarify those future. Two of the exclusions (waste farm, irrigation, stock watering, and log longstanding exclusions. Some treatment systems and prior converted cleaning ponds, constructed or commenters opposed many of the cropland) have been expressly included excavated in upland or in non- exclusions, arguing that they restrict in regulatory text for decades, but the jurisdictional waters, so long as those CWA jurisdiction over too many agencies are defining them for the first artificial lakes and ponds are not ecologically important waters. Some time to enhance implementation clarity. impoundments of jurisdictional waters commenters argued that prior converted The majority of paragraph (b) has been that meet the conditions of paragraph cropland and waste treatment systems finalized as proposed, but as discussed (c)(6). The final rule excludes water- should not be excluded from CWA in the next subsection, the agencies filled depressions constructed or jurisdiction, stating that nothing in the have made some changes to what they excavated in upland or in non- CWA supports the agencies’ proposed in response to public jurisdictional waters incidental to longstanding positions. The agencies comments and additional analysis of the mining or construction activity, and pits have considered these diverse proposed regulatory text. For example, excavated in upland or in non- comments and have generally adhered in the final rule the agencies split jurisdictional waters for the purpose of to the approach set forth in the ephemeral surface features and diffuse obtaining fill, sand, or gravel. The proposed rule, while making some stormwater runoff and overland sheet agencies also have excluded stormwater adjustments to the regulatory text to flow into separate exclusions for added control features constructed or address certain questions that were clarity. excavated in upland or in non- raised and to improve the clarity of the Waters and features that are excluded jurisdictional waters to convey, treat, regulatory text, as discussed in the next under paragraph (b) of the final rule infiltrate, or store stormwater run-off. subsection. cannot be determined to be Also excluded in the final rule are jurisdictional under any of the groundwater recharge, water reuse, and 2. Summary of Final Rule Rationale and categories in the rule under paragraph wastewater recycling structures, Public Comment (a). Any water not enumerated in including detention, retention, and Many of these exclusions generally paragraphs (a)(1) through (4) is not a infiltration basins and ponds, reflect the agencies’ current and historic ‘‘water of the United States.’’ In addition constructed or excavated in upland or in practice, and their inclusion in the final to this overarching exclusion, the final non-jurisdictional waters. rule furthers the agencies’ goal of rule includes additional exclusions to As discussed in Section III.G, the providing greater clarity over which provide more specificity for certain agencies have defined ‘‘upland’’ in waters are and are not regulated under

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22318 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

the CWA. Just as the categorical Groundwater definition of ‘‘waters of the United assertions of jurisdiction over In paragraph (b)(2) of the final rule, States.’’ The agencies disagree with tributaries, lakes, ponds, and the agencies exclude groundwater, other commenters’ assertion that impoundments of jurisdictional waters, including groundwater drained through groundwater should be included in the and adjacent wetlands simplify the subsurface drainage systems. The definition of ‘‘waters of the United jurisdictional determination process, the agencies have never interpreted waters States.’’ The agencies acknowledge the categorical exclusions likewise simplify of the United States to include importance of groundwater as a resource the process. In certain circumstances, groundwater, and they continue that and its role in the hydrologic cycle. But they also reflect the agencies’ practice through this final rule by its regulation is most appropriately determinations of the limits of their explicitly excluding groundwater. The addressed by other Federal, State, tribal, jurisdiction under the CWA based on agencies also note that groundwater, as and local authorities. Therefore, the text of the statute, Supreme Court opposed to subterranean rivers or consistent with the agencies’ guidance, and the agencies’ tunnels, cannot serve as a connection longstanding practice, the final rule longstanding practice and technical between upstream and downstream clarifies that groundwater is non- judgment that certain waters and jurisdictional waters. For example, a jurisdictional. This includes shallow features are not subject to regulation losing stream that flows to groundwater subsurface water and groundwater that under the CWA. These waters are or without resurfacing does not meet the is channelized in subsurface systems, could be subject to State or tribal definition of ‘‘tributary’’ because it does like tile drains used in agriculture. The jurisdiction, as the CWA recognizes that not contribute surface water flow to a agencies acknowledge that, in certain States and Tribes can regulate more downstream jurisdictional water. circumstances, pollutants released to broadly than the Federal government. However, a subterranean river does not groundwater can reach surface water resources. However, the statutory reach Some State comments on the sever jurisdiction of the tributary if it of ‘‘waters of the United States’’ must be proposed exclusions indicated that the contributes surface water flow in a grounded in a legal analysis of the limits exclusions uphold State sovereignty to typical year to a downstream jurisdictional water, as described in on CWA jurisdiction that Congress administer and allocate water resources intended by use of the term ‘‘navigable and preserve traditional State and local Section III.A.3, even though the subterranean river itself is not waters,’’ and an understanding and authority over private property. Some application of the limits expressed in commenters also stated that the jurisdictional. Many commenters cited legislative Supreme Court opinions interpreting proposed exclusions are consistent with that term. This final rule does that, the principles of cooperative federalism history in the development of the Act, the agencies’ implementing regulations, while also supporting the agencies’ under the CWA. For example, a goals of providing greater clarity, commenter asserted that the types of and case law as evidence of Congressional intent in support of the certainty, and predictability for the waters proposed for exclusion are all regulated public and regulators. waters that would traditionally fall groundwater exclusion. Commenters While the final rule excludes under State jurisdiction and should noted that CWA legislative history groundwater from regulation, many remain subject to State regulation under demonstrates that Congress clearly did States include groundwater in their the framework for cooperative not intend to include groundwater as definitions of ‘‘waters of the State’’ and federalism set forth in the CWA. The ‘‘waters of the United States,’’ because therefore may subject groundwater to agencies agree that the CWA’s Congress did not support a proposed State regulation. Indeed, the CWA cooperative federalism approach to amendment to include groundwater as waters of the United States. Many incentivizes State protection of protecting water quality is important commenters stated that all subsurface groundwater; for example, grants under and continue to reflect that approach in water should be non-jurisdictional. CWA section 319 may implement the exclusions finalized in this rule. Other commenters stated that management programs which will carry Importantly, the agencies’ final rule groundwater is not a ‘‘navigable water’’ out groundwater quality protection clarifies that all waters and features or a ‘‘channel of interstate commerce’’ activities as part of a comprehensive identified in paragraph (b) as non- and therefore should be excluded. nonpoint source pollution control jurisdictional would not be waters of the Conversely, several commenters stated program. 33 U.S.C. 1329(h)(5)(D). CWA United States. As stated in paragraph that groundwater is important to section 319(i) directs the EPA (b)(1) of the final rule, waters or water commerce, because it is essential as a Administrator to make grants to States features not enumerated in paragraphs source of drinking water for much of the for the purpose of assisting States in (a)(1) through (4) would not be a water population. Other commenters stated carrying out groundwater quality of the United States. The agencies have that groundwater should be protection activities which the taken this approach to avoid suggesting jurisdictional, based on concerns Administrator determines will advance that but for an applicable exclusion, regarding pollution moving to or from the State toward implementation of a such features could be jurisdictional. shallow subsurface waters. Some comprehensive nonpoint source This approach in the final rule commenters stated that groundwater, pollution control program. Such comprehensively excludes all waters including shallow subsurface water, activities include research, planning, and features that the agencies have not could serve as a conduit for discharge of groundwater assessment, demonstration included as waters of the United States pollutants to surface water. programs, enforcement, technical under paragraph (a) of the rule. Different The agencies agree with those assistance, education, and training to features are called different names in commenters who stated that nothing in protect the quality of groundwater and different parts of the country, so this the language of the CWA or its to prevent contamination of approach is also intended to eliminate legislative history, Supreme Court groundwater from nonpoint sources of the risk of confusion. The agencies note interpretations, or past agency practices pollution. 33 U.S.C 1329(i). In addition, that the examples of features in each support the inclusion of groundwater, groundwater quality is regulated and exclusion are illustrative of the types of including groundwater drained through protected through several other legal features covered under each exclusion. subsurface drainage systems, in the mechanisms, including the Safe

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22319

Drinking Water Act, the Resource the proposed exclusion aligned with point source to a ‘‘water of the United Conservation and Recovery Act, and CWA section 101(b) and, by avoiding States.’’ The agencies view ephemeral various State and local laws.56 jurisdiction over primarily dry features, features, such as arroyos or ditches, as did not significantly alter the Federal- Ephemeral Features and Diffuse potential conveyances of discharges of State framework. Other commenters Stormwater Run-Off pollutants from point sources subject to expressed concern that if they are not NPDES permitting requirements. So too, In paragraph (b)(3), the final rule jurisdictional, ephemeral features could the agencies believe, did Justice Scalia. excludes ephemeral features, including be subject to uncontrolled pollution or He referred to ‘‘channels’’—a term used ephemeral streams, swales, gullies, rills, filled, and some commenters in the definition of ‘‘point source’’ at 33 and pools. In paragraph (b)(4), the rule emphasized the potential adverse U.S.C. 1362(14)—as ‘‘ephemeral excludes diffuse stormwater run-off and impacts to downstream jurisdictional streams,’’ ‘‘dry arroyos in the middle of directional sheet flow over upland. waters into which ephemeral features the desert,’’ and ‘‘manmade drainage Such features are not jurisdictional flow. ditches’’ when characterizing the types By defining perennial and under the terms of paragraph (a) in the of features that he believed stretched the intermittent tributaries of traditional final rule or its definitions in paragraph meaning of the ‘‘term ‘waters of the navigable waters as jurisdictional and (c). They are specifically excluded in United States’ beyond parody.’’ Id. at defining ephemeral features as non- the final rule for additional clarity. The 734. Additional discussion of the final final rule differs from the proposed rule, jurisdictional, and by including (b)(3) and (b)(4) exclusions explicitly rule’s treatment of ephemeral features is as (b)(3) and (b)(4) were combined into provided in Section III.A.3 of this one category of exclusions in the emphasizing the non-jurisdictional notice. proposal. The agencies believe that status of ephemeral features and diffuse separating the exclusions into two stormwater run-off, the agencies are Ditches categories, as they have done for the balancing Congress’ intent to interpret final rule, provides greater clarity. The the term ‘‘navigable waters’’ more The final rule’s ditch exclusion in separation does not have a practical broadly than the classical meaning of paragraph (b)(5) is intended to provide effect on or substantively change the that term and the notion that nothing in greater clarity for the regulated public types of waters and features that the the legislative history of the Act and to be more straightforward for final rule excludes compared to the ‘‘signifies that Congress intended to agency staff to implement than current proposed rule. As described in detail in exert anything more than its commerce practice. The agencies have Section III.A.3, the agencies have power over navigation.’’ SWANCC, 531 incorporated a clear statement in the revised the proposed rule to clarify that U.S. at 168 n.3. The exclusions in final rule that all types of ditches would while ephemeral features are not waters paragraphs (b)(3) and (b)(4) and the final be excluded except where they meet the of the United States, a tributary does not rule’s limitation of jurisdiction to conditions of paragraph (a)(1) or (2) of lose its jurisdictional status if it perennial and intermittent rivers and the final rule or where, in limited contributes surface water flow to a streams most appropriately balances the instances, they meet the conditions of downstream jurisdictional water in a Federal government’s interest in paragraph (c)(1). Further, as discussed typical year through a channelized regulating the nation’s navigable waters in Section III.D and Section III.E of this ephemeral feature, such as an with respecting State and Tribal land notice, the final rule clarifies that ephemeral stream or gully. However, if use authority over features that are only ditches are tributaries under paragraph an upstream reach is connected to the episodically wet during and/or (a)(2) where they relocate a tributary, are downstream reach only by diffuse following precipitation events. See, e.g., constructed in a tributary, or are stormwater runoff or directional sheet Rapanos, 547 U.S. at 734 (Scalia, J., constructed in an adjacent wetland, so flow over upland, the upstream reach is plurality) (identifying ‘‘ephemeral long as the ditch satisfies the flow not jurisdictional under the final rule. streams’’ and ‘‘directional sheet flow conditions of the ‘‘tributary’’ definition. during storm events’’ as beyond the Providing additional clarity in the Many States, regional groups, and paragraph (b) exclusions helps to scope of CWA jurisdiction). Some commenters raised concerns national associations that commented highlight that only some excluded with potential adverse impacts to during the Federalism consultation as features are capable of providing a downstream jurisdictional waters from part of development of the proposed channelized surface water connection discharges to non-jurisdictional rule and during the agencies’ general between upstream and downstream ephemeral features. The agencies outreach efforts noted that the definition perennial or intermittent waters. Under believe that a CWA section 402 of ‘‘waters of the United States’’ should the final rule, ephemeral features are not permittee currently discharging to a exclude ditches. The agencies received jurisdictional and do not become jurisdictional water that becomes non- further comments on the proposed jurisdictional even if they maintain jurisdictional under this final rule rule’s category of jurisdictional ditches jurisdiction of relatively permanent would likely remain subject to the and the exclusion for all other ditches. upstream waters by conveying surface requirements of the Act. This specific Some commenters argued that all water from those waters to downstream concern was raised in Rapanos, that ditches should be jurisdictional if they jurisdictional waters in a typical year. enforcement of section 402 could be convey any volume of water to a Some commenters supported the frustrated by ‘‘polluters . . . evad[ing] covered water, however infrequent or ephemeral features exclusion as being permitting requirement . . . by insubstantial, while others took the consistent with the CWA, Commerce discharging their pollutants into opposite view. As discussed in Sections Clause, and case law, particularly the noncovered intermittent watercourses III.D. and III.E., the approach adopted in plurality opinion in Rapanos. For that lie upstream of covered waters.’’ Id. this final rule reasonably balances the example, one commenter indicated that at 742–43. In the words of Justice Scalia, exclusion of features that are ‘‘That is not so.’’ Id. New or continuing fundamental to State, tribal, and local 56 For additional description of these programs, land use planning while respecting the see https://www.epa.gov/npdes/interpretative- discharges, whether illicit or not, could statement-releases-pollutants-point-sources- be subject to sections 301 and 402 of the need to preserve jurisdiction over groundwater. Act if the discharge is conveyed from a certain ditches.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22320 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

Prior Converted Cropland return. 58 FR 45034. This approach is valid as long as the area is devoted to The agencies are finalizing the prior consistent with the principles in the an agricultural use. If the land changes converted cropland exclusion in 1990 Corps Regulatory Guidance Letter to a non-agricultural use, the [prior paragraph (b)(6) and adding a definition 90–7. Although included in the 1993 converted cropland] determination is no of ‘‘prior converted cropland’’ in preamble and Regulatory Guidance longer applicable, and a new wetland paragraph (c)(9). The definition of Letter 90–7, these principles have not determination is required for CWA 57 ‘‘prior converted cropland’’ clarifies that been incorporated into the text of any purposes.’’ the exclusion is no longer applicable promulgated rule until now. This rule The 2005 Memorandum did not when the cropland is abandoned and therefore represents the first time the clearly address the abandonment the land has reverted to wetlands, as agencies are promulgating regulatory principle that the agencies had been that term is defined in paragraph (c)(16). language to clarify the meaning of ‘‘prior implementing since the 1993 rulemaking. The change in use policy Under this final rule, prior converted converted cropland’’ for CWA purposes, articulated in the 2005 Memorandum cropland is considered abandoned if it the application of the exclusion, and a was also never promulgated as a rule is not used for, or in support of, recapture mechanism based on and was declared unlawful by one agricultural purposes at least once in the abandonment and reversion to district court because it effectively immediately preceding five years. wetlands. Historically, the agencies have modified the 1993 preamble language Agricultural purposes include land use attempted to create consistency between without any formal rulemaking process. that makes the production of an the CWA and the FSA wetlands See New Hope Power Co. v. U.S. Army agricultural product possible, including conservation provisions for prior Corps of Eng’rs, 746 F. Supp. 2d 1272, but not limited to grazing and haying. converted cropland. The agencies 1282 (S.D. Fla. 2010). Implementing the Additional discussion on agricultural continue to believe that consistency 2005 Memorandum created other purposes is provided below. This final across these programs is important for challenges for the agencies and the rule also clarifies that cropland that is the regulated community (see 58 FR regulated community. For example, left idle or fallow for conservation or 45033), and therefore are continuing to because the 2005 Memorandum did not agricultural purposes for any period or exclude prior converted cropland from clearly address whether or how the duration of time remains in agricultural the definition of ‘‘waters of the United abandonment principles should be use (i.e., it is used for, or in support of, States.’’ By incorporating the applied in prior converted cropland agriculture purposes), and therefore abandonment principles from the 1993 cases, neither the agencies nor the maintains the prior converted cropland preamble and providing examples of regulated community could be certain exclusion. The agencies conclude that ‘‘agricultural purposes,’’ this final rule which approach would be applied to a this clarification will ensure that remains consistent with the concepts specific case. cropland enrolled in long-term and underlying the FSA but differs in The agencies received many public other conservation programs implementation from certain aspects of comments on the prior converted administered by the Federal government USDA’s current wetlands compliance cropland exclusion, with some or by State and local agencies that authority. Incorporating the commenters noting that the exclusion prevents erosion or other natural abandonment principle, as opposed to a will provide clarification needed to resource degradation does not lose its pure ‘‘change in use’’ policy (described protect prior converted cropland that prior converted cropland designation as below), is important for the agencies to may be subject to flooding and to other a result of implementing conservation appropriately manage certain wetland natural occurrences that result in wet or practices. resources while providing better clarity saturated fields. The agencies also In 1993, the agencies categorically to the agricultural community. received public comments on both the excluded prior converted cropland from When the 1993 preamble was abandonment principle and the change the definition of ‘‘waters of the United published, the abandonment principle in use analysis. Some commenters States.’’ 58 FR 45034–36 (August 25, was consistent with USDA’s supported the abandonment principle, 1993). As further explained below, in implementation of the FSA. Three years stating, for example, that prior keeping with the Food Security Act of later, the 1996 FSA amendments converted cropland should lose its 1985 (FSA), the 1993 preamble defined modified the abandonment principle status only when the land is abandoned prior converted cropland as ‘‘areas that, and incorporated a ‘‘change in use’’ and the area reverts back to wetland. prior to December 23, 1985, were policy. See Public Law 104–127, 110 Other commenters requested that the drained or otherwise manipulated for Stat. 888 (1996). Under the new policy, agencies finalize the change in use the purpose, or having the effect, of prior converted cropland would analysis, as articulated in the 2005 making production of a commodity crop continue to be treated as such even if Memorandum. The agencies have possible [and that are] inundated for no wetland characteristics returned considered these comments and for the more than 14 consecutive days during because of lack of maintenance of the reasons provided herein are finalizing the growing season.’’ 58 FR 45031. As land or other circumstances beyond the the abandonment principle as proposed explained in detail in the 1993 owner’s control, ‘‘as long as the prior and are not adopting the change in use preamble, due to the degraded and converted cropland continues to be used approach. altered nature of prior converted for agricultural purposes.’’ H.R. 2854, The agencies received many cropland, the agencies determined that Conf. Rep. No. 104–494, at 380 (1996). comments in support of the term ‘‘for or such lands should not be treated as In 2005, the Corps and NRCS issued a in support of, agricultural purposes’’ jurisdictional wetlands for purposes of joint ‘‘Memorandum to the Field’’ (the and recommendations as to how the the CWA because regulating such lands 2005 Memorandum) in an effort to again term should be interpreted. Commenters does not further the objective of the Act. align the CWA section 404 program 58 FR 45032. The 1993 preamble also with the FSA by adopting the amended 57 Memorandum to the Field on Guidance on set out a mechanism to ‘‘recapture’’ FSA’s change in use policy. The 2005 Conducting Wetland Determinations for the Food Security Act of 1985 and section 404 of the Clean prior converted cropland into the Memorandum provided that, a Water Act, February 25, 2005, available at https:// section 404 program when the land has ‘‘certified [prior converted] usace.contentdm.oclc.org/utils/getfile/collection/ been abandoned and wetland features determination made by [USDA] remains p16021coll11/id/2508.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22321

requested that the agencies provide allow more than five years when mining or construction activity, and pits additional examples of agricultural drought or flood conditions prevent excavated in upland or in non- purposes, including, but not limited to, cultivation, planting or harvest. The jurisdictional waters for the purpose of idling land for conservation uses (e.g., agencies have considered these obtaining fill, sand, or gravel (paragraph habitat; pollinator and wildlife comments and conclude that a five-year (b)(9)). management; and water storage, supply, timeframe for maintaining agricultural Paragraphs (b)(7), (8), and (9) of the and flood management); irrigation purposes is reasonable and consistent final rule identify features and waters tailwater storage; crawfish farming; with the 1993 preamble (58 FR 45033) that the agencies have generally cranberry bogs; nutrient retention; and and with the five-year timeframe excluded from the definition of ‘‘waters idling land for soil recovery following regarding validity of an approved of the United States’’ in previous natural disasters like hurricanes and jurisdictional determination (2005 preambles since 1986 (see, e.g., 51 FR drought. The uses listed above, in Corps Regulatory Guidance Letter (RGL) 41206, 41217 (November 13, 1986) and addition to crop production, haying, 05–02). The five-year timeframe is 53 FR 20764–65 (June 6, 1988)). The and grazing, fall within the term longstanding in the CWA section 404 agencies have codified these ‘‘agricultural purposes’’ and, if program and will be familiar to longstanding exclusions to further the documented, may maintain the prior landowners and regulators alike, agencies’ goals of providing greater converted cropland exclusion. increasing clarity in implementation. clarity and predictability for the Conservation practices, including those The agencies are finalizing the rule with regulated public and the regulators. required or supported by USDA, State, the five-year timeframe, as proposed, Several of these exclusions use the and local programs (including but as described in the next subsection, phrase ‘‘upland.’’ In keeping with the recognized private sector programs that the agencies will work closely with goal of providing greater clarity, the partner with government programs or USDA, and will consider agencies have included in the final rule that can provide verifiable documentation from USDA, NOAA, a definition of ‘‘upland’’ in paragraph documentation of participation) are FEMA, or other Federal or State (c)(14). It is important to note that a critical to the success of agricultural agencies to determine if the land was water of the United States is not systems across the country. used for or in support of agricultural considered ‘‘upland’’ just because it Conservation practices and programs purposes in the immediately preceding lacks water at a given time. Similarly, an also are conducted ‘‘for or in support of five years to evaluate whether cropland area may remain ‘‘upland’’ even if it is agricultural purposes’’ and are has in fact been abandoned. wet sporadically or after a rainfall or appropriate to maintain the prior The agencies consider rulemaking to flood event. In addition, the agencies converted cropland exclusion. be appropriate here in order to clarify recognize that excluded water features The agencies also received public the definition of ‘‘prior converted may be constructed or excavated in non- comment on the type of documentation cropland’’ and to provide regulatory jurisdictional ponds, wetlands, or other that a landowner should maintain to certainty over when such lands are no non-jurisdictional features. Therefore, demonstrate that cropland has been longer eligible for the CWA exclusion. the agencies added the phrase ‘‘non- used ‘‘for or in support of, agricultural This final rule provides much needed jurisdictional waters’’ to some of these purposes.’’ Commenters suggested the clarity about the prior converted exclusions to provide greater clarity and use of aerial photographs, topographical cropland exclusion and how wetlands to confirm that these features can be maps, cultivation maps, crop expense or can be recaptured into CWA jurisdiction constructed or excavated in a non- receipt records, field- or tract-specific through the abandonment test. In jurisdictional water, such as an isolated grain elevator records, and other records addition to finalizing the exclusion as pond or wetland, while continuing to be generated and maintained in the normal proposed, the Corps will withdraw the excluded from federal jurisdiction. course of doing business. The agencies 2005 Memorandum simultaneous with The upland requirement does not agree that these types of documents and the effective date of this rule. apply to all exclusions under paragraph other documentation reasonably (b). For those waters or features in establishing ‘‘agricultural purposes’’ are Artificially Irrigated Areas, Artificial paragraph (b) of this final rule that do appropriate to demonstrate that the Lakes and Ponds, and Water-Filled contain the stipulation that they must be prior converted cropland exclusion Depressions constructed or excavated in upland or in applies to a certain field or tract of land. Paragraph (b) also excludes from non-jurisdictional waters to be Finally, the agencies received public waters of the United States under this excluded, the agencies intend that these comments on whether the five-year final rule: features be constructed or excavated timeframe for maintaining agricultural • Artificially irrigated areas, wholly in upland or in non- purposes is appropriate. Some including fields flooded for agricultural jurisdictional waters. For example, commenters supported the five-year production, that would revert to upland construction activities that enlarge a timeframe. Other commenters thought should application of irrigation water to water of the United States beyond its that five years was too long to avoid that area cease (paragraph (b)(7)); current boundaries are not constructed federal jurisdiction if wet cropland was • Artificial lakes and ponds, wholly in upland. Where portions of a providing some ecological or habitat including water storage reservoirs and new or modified water feature are built benefit that should be maintained. Other farm, stock watering, and log cleaning in a jurisdictional water, the agencies commenters thought that the five-year ponds, constructed or excavated in would not view the new or modified timeframe was too short to account for upland or in non-jurisdictional waters, feature as having been constructed or unforeseen circumstances that could so long as those artificial lakes and excavated wholly in upland or in non- leave cropland idle for longer periods of ponds are not impoundments of jurisdictional waters, and therefore not time (e.g., bankruptcy, the probate and jurisdictional waters that meet the subject to the exclusion. But where a estate administration process, natural conditions of paragraph (c)(6) stock watering pond, for example, is disasters), and recommended that the (paragraph (b)(8)); and developed in a spring that is non- agency adopt a seven, ten, or twenty- • Water-filled depressions jurisdictional under this final rule, that year timeframe. Some commenters constructed or excavated in upland or in pond will be considered by the agencies specifically requested that the agencies non-jurisdictional waters incidental to to have been constructed wholly in

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22322 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

upland and/or non-jurisdictional definition of ‘‘waters of the United practice, when an applicant receives a waters. Even if a feature is not States’’ so long as these features are permit to impound a water of the United constructed or excavated wholly in constructed or excavated in upland or in States in order to construct a waste upland or in non-jurisdictional waters non-jurisdictional waters, and so long as treatment system (as excluded under and meets the definition of ‘‘waters of these features are not impoundments of paragraph (b)(12)), under this final rule the United States,’’ it may be otherwise jurisdictional waters meeting the the agencies are affirmatively excluded under another part of conditions of paragraph (c)(6). Many relinquishing jurisdiction over the paragraph (b). The agencies note, commenters provided edits and resulting waste treatment system as long however, that the mere interface additions to the list of water features as it is used for this permitted purpose. between the excluded feature included in paragraph (b)(8). However, Also consistent with longstanding constructed or excavated wholly in the agencies did not intend to provide practice, waters upstream of the waste upland and a jurisdictional water does an exhaustive list of features that are treatment system are still considered not make that feature jurisdictional. For excluded under paragraph (b)(8) and jurisdictional where they meet the final example, a ditch constructed or have determined that any feature that rule’s definition of ‘‘waters of the excavated wholly in upland that meets the conditions of paragraph (b)(8) United States.’’ connects to a tributary would not be will be non-jurisdictional under this The (b)(8) exclusion for artificial lakes considered a jurisdictional ditch. The rule. and ponds uses the term ‘‘constructed or connection to a jurisdictional water The agencies modified the proposed excavated’’ in the final rule, while the does not eliminate applicability of a exclusion for artificial lakes and ponds proposed rule used the term paragraph (b) exclusion conditioned by to clarify their intent. As drafted in the ‘‘constructed.’’ The agencies do not the upland or non-jurisdictional waters proposed rule, the exclusion intend for this change to alter the language. To avoid any confusion in unintentionally would have been meaning of the exclusion from proposal. implementation, this is why the narrower than under the 1980s The agencies believe that this edit agencies have not included the term regulations. For example, when a farm provides clarity to the public about how ‘‘wholly’’ in the final regulatory text. pond is constructed in upland and excluded artificial lakes and ponds can Finally, an excluded feature under the connected via a ditch also constructed be created—some are constructed final rule that develops wetland in upland to divert flow from a tributary through dams, dikes, or barriers, while characteristics within the confines of and the farm pond does not connect some are excavated pits. Excavation can the non-jurisdictional water or feature back into the tributary system, it has entail construction, and construction remains excluded from the definition of been longstanding agency practice that can entail excavation, but the agencies ‘‘waters of the United States,’’ with the the farm or stock pond is non- have decided to use both terms in the exception in limited circumstances of jurisdictional, similar to irrigation final rule for added clarity. wetlands that develop in ditches ditches which do not connect back into Several commenters stated that constructed in adjacent wetlands, as the tributary network. The pond’s artificial lakes and ponds should be discussed in Section III.G. source of water is the tributary and excluded regardless of whether they are Many commenters were in favor of serves to provide water for irrigation, located either wholly or partially in the proposed exclusion under (b)(6) of livestock, and other agricultural uses. upland, and that the (b)(8) exclusion the proposed rule, now under (b)(7), for Because such ponds do not contribute should extend to artificial lakes and artificially irrigated areas. A few surface water flow to a downstream ponds not constructed or excavated in commenters were opposed to the paragraph (a)(1) water, they have not upland. A few commenters noted that exclusion entirely, and some been jurisdictional under historic farmers and ranchers often determine commenters were opposed to expanding practice and are not jurisdictional under the location of farm and stock ponds the exclusion for other crops and/or this final rule. Another example based on topography, which will aquaculture. Some commenters cited involves a stock watering pond typically result in the construction of the need for clarity as to whether the developed in a non-jurisdictional such features in low areas that may have listed crops were the only ones covered spring. If that pond has a spillway that some characteristics of wetlands or a under the exclusion. After considering creates a potential surface water natural ephemeral feature. One the comments received, the agencies connection to a nearby stream, the pond commenter noted that many artificial have modified this exclusion in the final has traditionally been excluded from lakes or ponds are isolated features, and rule to clarify their intent that it is not CWA jurisdiction. This final rule adopts that their connectivity to waters of the limited to rice and cranberry production that longstanding position. United States rather than their and applies more generally to In the final rule, the agencies are relationship to upland should be the ‘‘agricultural production.’’ The clarifying that artificial features primary factor in determining references to cranberries and rice in the including water storage reservoirs and jurisdiction. proposed rule were examples and were farm, irrigation, stock watering, and log The final rule continues to require an not an exhaustive list of crops to which cleaning ponds are not jurisdictional artificial lake or pond to be constructed the exclusion would apply. When unless they are impoundments of or excavated wholly in upland or in evaluating an area to determine whether jurisdictional waters meeting the non-jurisdictional waters to be it meets the exclusion, the focus should conditions of paragraph (c)(6), as considered excluded under (b)(8). This be on whether the area is artificially discussed in Section III.F of this notice. reflects the agencies’ longstanding irrigated or flooded for the purpose of The agencies acknowledge that many policy, as discussed above with the agricultural production and on whether artificial lakes and ponds may have stock watering pond example. Artificial it would revert to upland if the been created by impounding other lakes and ponds constructed or irrigation ceases. waters. The text of the final rule clarifies excavated partially in uplands or in Paragraph (b)(8) of the final rule that artificial lakes and ponds that also non-jurisdictional waters and partially provides that artificial lakes and ponds, meet the conditions of a jurisdictional in jurisdictional waters are including water storage reservoirs and impoundment under paragraph (c)(6) jurisdictional if such lakes and ponds farm, irrigation, stock watering, and log are not excluded under paragraph (b)(8). meet the conditions of paragraph (c)(6). cleaning ponds, are excluded from the However, consistent with longstanding The agencies are concerned that if only

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22323

part of an artificial lake or pond need be filled depressions are often needed for Stormwater Control Features in upland, the exclusion could be facility management but are not part of In paragraph (b)(10) of the final rule, inappropriately applied to waters where the tributary system and are not natural the agencies exclude stormwater control just a small portion is constructed in waters. Some commenters opposed the features constructed or excavated in upland. The agencies again note that the exclusion, stating that the exclusion upland or in non-jurisdictional waters mere interface between the excluded benefited mining companies and would to convey, treat, infiltrate, or store lake or pond otherwise constructed or allow mining activities to negatively stormwater runoff. Although stormwater excavated wholly in upland and a impact water quality. Other commenters control features are not specifically jurisdictional water does not make that stated that the exclusion should be included in the list of waters that the feature jurisdictional. For example, an expanded to include water-filled agencies consider to be generally non- artificial lake or pond that meets the depressions constructed or excavated jurisdictional per the 1986 and 1988 conditions of paragraph (b)(8) and that incidental to other activities such as preamble language, 51 FR 41206 connects to a tributary would not be silviculture, or incidental to all (November 13, 1986) and 53 FR 20764 considered jurisdictional. With respect activities, asserting that the agencies (June 6, 1988), the agencies’ to artificial lakes and ponds that are should not have singled out specific longstanding practice is to view constructed in isolated or ephemeral industries in the exclusion. With respect stormwater control features that are not features, the agencies modified the to expanding the exclusion to built in waters of the United States as exclusion to make clear that artificial encompass additional industries or non-jurisdictional. Conversely, the lakes or ponds constructed or excavated activities, the agencies note that the agencies view some relatively in non-jurisdictional features are permanent bodies of water, such as excluded. (b)(9) exclusion is not the only one that channelized streams with intermittent Paragraph (b)(9) of the final rule addresses artificial waters. Paragraph (b) excludes water-filled depressions of the final rule excludes a number of or perennial flow, as jurisdictional even constructed or excavated in upland or in artificial features not limited to specific when used as part of a stormwater non-jurisdictional waters incidental to industries. In addition, CWA section management system. Nothing in this mining or construction activity, and pits 404(f) exempts a number of discharges final rule changes the agencies’ excavated in upland or in non- associated with certain activities in longstanding practice. Rather, this jurisdictional waters for the purpose of jurisdictional waters from the exclusion clarifies the appropriate limits obtaining fill, sand, or gravel. In this requirement to obtain a section 404 of jurisdiction relating to these systems. A key element of the exclusion is final rule, the agencies have modified permit, including normal farming, this exclusion from the proposal. In the ranching, and silviculture activities as whether the feature or control system proposed rule, such depressions would part of an established operation. 33 was built wholly in upland or in a non- have been excluded where they are U.S.C. 1344(f)(1)(A). jurisdictional water. As discussed above and as further clarified below, the ‘‘created in upland,’’ but in the final Some commenters wanted the (b)(9) rule such depressions are excluded agencies recognize that upland features exclusion to be expanded so that once may be connected to jurisdictional where they are ‘‘constructed or a water-filled depression was excluded, excavated in upland or in non- waters and that such a connection does it remained excluded for CWA section not preclude application of the jurisdictional waters.’’ The change from 404 purposes. The 1986 and 1988 ‘‘created’’ to ‘‘constructed or exclusion. Another key element is that preambles stated that these depressions the feature must convey, treat, infiltrate, excavated,’’ as discussed above, is not were excluded ‘‘unless and until the meant to change the meaning or or store stormwater. Stormwater control construction or excavation operation is features have evolved considerably over applicability of the exclusion from the abandoned and the resulting body of proposed rule, but rather is intended to time, and their nomenclature is not water meets the definition of waters of consistent, so in order to avoid add clarity to the regulated public about the United States.’’ (51 FR 41206, 41217 how such excluded water-filled unintentionally limiting the exclusion, (November 13, 1986); 53 FR 20764–65 depressions can be created. the agencies have not included a list of Aside from this clarifying change, the (June 6, 1988)). The agencies proposed excluded features in the final rule. The agencies are finalizing this exclusion as that such water-filled depression would rule excludes the diverse range of it was proposed. In the final rule, this remain excluded, which represented a stormwater control features that are exclusion clarifies longstanding practice change from the 1986 and 1988 currently in place and may be reflected in the agencies’ 1986 and 1988 preamble language. After further developed in the future. However, the preambles, 51 FR 41206, 41217 consideration, and after considering agencies note that excluded stormwater (November 13, 1986); 53 FR 20764–65 comments received, the agencies have control features when they have (June 6, 1988) and includes several concluded that once a feature subject to channelized surface water may provide refinements to the language in those the (b)(9) exclusion is no longer used for a connection between the upstream preambles. In addition to construction the original purpose for which it was reach of a relatively permanent water activity, the agencies have also reflected excluded, it no longer qualifies for the and a downstream jurisdictional water in the final rule an exclusion for water- (b)(9) exclusion. This is consistent with such that the upstream reach is filled depressions created in upland the approach to other exclusions, such jurisdictional. Even in this incidental to mining activity. This is as waste treatment systems and circumstance, the stormwater control consistent with the 1986 and 1988 artificially irrigated areas, and reaffirms feature would remain non-jurisdictional preambles, which generally excluded the agencies’ longstanding practice under this final rule. See Section III.D pits excavated for obtaining fill, sand, or regarding this exclusion. In many cases, of this notice for further discussion. The gravel, and the agencies believe there is even if the (b)(9) exclusion may no agencies also note that while excluded no need to distinguish between features longer apply to a feature, the feature from the definition of ‘‘waters of the based on whether they are created by may still remain non-jurisdictional United States,’’ stormwater control construction or mining activity. because it does not meet the conditions features may function as a conveyance Several commenters supported the of paragraphs (a)(1) through (4) and thus of a discharge of pollutants from a point (b)(9) exclusion, because such water- is excluded under paragraph (b)(1). source to a water of the United States.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22324 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

Traditionally, stormwater controls practice. For example, the Los Angeles would encourage water reuse and other were designed to direct runoff away River is a traditional navigable water innovative approaches to water from people and property as quickly as highly engineered for stormwater management. A few commenters possible. Cities built systems to collect, control, and it still meets the supported the exclusion because they convey, or store stormwater, using requirements of a paragraph (a)(1) water. said wastewater recycling structures structures such as curbs, gutters, and Regarding comments related to defining should be regulated at the State level. sewers. Retention and detention the term ‘‘stormwater control features,’’ Some commenters stated that stormwater ponds were built to store the agencies do not name specific considering a wastewater recycling excess stormwater until it could be more stormwater control features that would structure a water of the United States safely released. More recently, use of fall under the stormwater control feature could create unnecessary regulatory and stormwater controls to remove exclusion, as they do not want the final economic burdens, while providing no pollutants before the stormwater is rule to be perceived as limiting the additional water quality protection. discharged has become more prevalent. exclusion, particularly given differences Several commenters stated that the Even more recently, cities have turned among regional naming conventions and exclusion of groundwater recharge to green infrastructure, using existing the likelihood that technologies and basins and similar structures was natural features or creating new features nomenclature will evolve in the future. consistent with Justice Scalia’s plurality that mimic natural hydrological opinion in Rapanos, as groundwater Groundwater Recharge, Water Reuse, processes that work to infiltrate, recharge basins do not discharge to any and Wastewater Recycling Structures evaporate, or transpire precipitation, to navigable waters, are filled only during manage stormwater at its source and In this final rule under paragraph part of the year, and do not otherwise keep it out of the conveyance system. (b)(11), the agencies exclude from the constitute a traditional navigable water These engineered components of definition of ‘‘waters of the United within the meaning of the plurality’s stormwater management systems can States’’ groundwater recharge, water jurisdictional test. A number of address both flood control and water reuse, and wastewater recycling commenters suggested that the quality concerns, as well as provide structures constructed or excavated in qualifying language in the proposed other benefits to communities. This upland or in non-jurisdictional waters. rule’s wastewater recycling structures final rule is designed to avoid While such features are not explicitly exclusion, which would have limited disincentives to this environmentally listed in the categories of waters that the the exclusion to wastewater recycling beneficial trend in stormwater agencies generally consider to be non- structures ‘‘constructed in upland,’’ management practices. jurisdictional in the 1986 and 1988 could create barriers to water reuse and Many commenters supported the preamble language, 51 FR 41206 conservation. proposed rule’s exclusion for (November 13, 1986) and 53 FR 20764 For the reasons described above, the stormwater control features constructed (June 6, 1988), this exclusion clarifies agencies believe that the (b)(11) or excavated in upland, asserting that the agencies’ longstanding practice that exclusion reflects an appropriate environmentally beneficial solutions to waters and water features used for water balance among CWA policies and manage stormwater could be reuse and recycling are not encouraging water reuse and effective discouraged if such features were jurisdictional when constructed in water management. As a result, this designated as ‘‘waters of the United upland or in non-jurisdictional waters. final rule includes the (b)(11) exclusion States.’’ Several commenters noted The agencies recognize the importance largely unchanged from the proposal. concerns that an exclusion dependent of water reuse and recycling, The agencies did modify the exclusion on an upland location could potentially particularly in the arid West where in response to comments to add the deter stormwater system operators from water supplies can be limited and term ‘‘water reuse’’ to the exclusion as installing beneficial green infrastructure droughts can exacerbate supply issues. it is commonly used in water and and suggested that jurisdictional waters This exclusion is intended to avoid wastewater management. The agencies incorporated into the stormwater system discouraging or creating barriers to also added ‘‘or non-jurisdictional should be excluded. Many commenters water reuse and conservation practices waters’’ to the exclusion to ensure that suggested that the final rule should and projects. Detention and retention it is not narrowly restricted to define ‘‘stormwater control features’’ basins can play an important role in construction in upland only. As that would be excluded. capturing and storing water prior to discussed above, the agencies will apply The agencies’ longstanding practice is beneficial reuse. Similarly, groundwater the qualifier ‘‘constructed or excavated to view stormwater control features as recharge basins and infiltration ponds in upland or in non-jurisdictional non-jurisdictional when built outside of are becoming more prevalent tools for waters’’ consistently across four waters of the United States. The water reuse and recycling. These exclusions that use the term. agencies do not agree with commenters features are used to collect and store who stated that jurisdictional waters water, which then infiltrates into Waste Treatment Systems that are incorporated into a drainage or groundwater via permeable soils. Paragraph (b)(12) of the final rule stormwater conveyance system should Though these features are often created excludes waste treatment systems. The be excluded by virtue of the fact that in upland, they are also often located in waste treatment system exclusion has they are part of the larger stormwater close proximity to tributaries or other existed since 1979 (44 FR 32854), and control system. A water does not lose its larger bodies of water. The exclusion in the agencies are continuing the jurisdictional status if it is modified for paragraph (b)(11) of the final rule exclusion under this final rule. The use as a stormwater control measure. codifies the agencies’ longstanding agencies are also for the first time The agencies recognize that highly practice and encourages water providing in the final rule a definition engineered municipal separate storm management practices that the agencies of ‘‘waste treatment system’’ under sewer systems (MS4s) that may have recognize are important and beneficial. paragraph (c)(15), so as to clarify which replaced natural drainage features may Many commenters expressed support waters and features are considered part therefore have jurisdictional waters for the proposed rule’s exclusion for of a waste treatment system and within their systems, but this does not wastewater recycling structures. Some therefore excluded. Continuing the represent a change from longstanding commenters stated that the exclusion agencies’ longstanding practice, any

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22325

entity with a waste treatment system prior to the 1972 CWA amendments, features. For example, a commenter would need to comply with the CWA by and there is no basis for construing the stated that a blanket exclusion of obtaining a section 404 permit for new exclusion not to apply to such systems. ephemeral streams without regard to construction in a water of the United The agencies also considered other flow quantity could increase the States, and a section 402 permit for exclusions recommended by difficulty in delineating such features discharges from the waste treatment stakeholders prior to the proposed rule and could limit activities to certain time system into waters of the United States. and suggested in comments on the periods. Some commenters suggested Consistent with the proposal, the proposed rule. The agencies did not the agencies consider certain ephemeral agencies intend for this exclusion to include these additional proposed features to be jurisdictional on a apply only to waste treatment systems exclusions in the final rule. Some of the situational or regional basis, while other constructed in accordance with the suggested exclusions were so broadly commenters supported a case-by-case requirements of the CWA and to all characterized that they would have determination of ephemeral features waste treatment systems constructed introduced confusion and potentially that would fall under the exclusion, prior to the 1972 CWA amendments. excluded waters that the agencies have rather than excluding ephemeral One ministerial change in the final rule consistently determined should be features categorically. One commenter from the 2019 Rule is the deletion of a covered as waters of the United States. requested implementation tools, cross-reference to a regulatory definition Other suggested exclusions were so site- including visual aids or benchmarks to of ‘‘cooling ponds’’ that no longer exists specific or activity-based that they did identify excluded features, observing in the Code of Federal Regulations.58 not warrant inclusion in the nationally- that distinguishing between ephemeral Many commenters supported the applicable definition. Still other and intermittent waters may be waste treatment system exclusion and suggested exclusions were covered by challenging. definition as proposed and agreed that another exclusion in the rule, and thus This final rule is intended to establish the proposed exclusion would codify would have been superfluous, in whole categorical bright lines that provide the agencies’ longstanding practice. or in part. clarity and predictability for regulators Some commenters requested that the 3. How will the agencies implement the and the regulated community. exclusion be expanded to include all final rule? Consistent with that goal, the final rule ancillary systems, channels, eliminates the case-specific application appurtenances, conveyances, and To determine whether a water meets of Justice Kennedy’s significant nexus diversion ditches associated with the the final rule’s exclusions in paragraphs test, and instead establishes clear waste treatment system. Other (b)(1) through (b)(12), the agencies will categories of jurisdictional waters and commenters stated that the proposed first evaluate whether the water meets non-jurisdictional waters and features exclusion was unlawful and that it the definition of ‘‘waters of the United that adhere to the basic principles should be eliminated entirely. Some States’’ under paragraphs (a)(1) through articulated in the Riverside Bayview, commenters suggested that there may be (4). If the water does not satisfy any of SWANCC, and Rapanos decisions, confusion concerning the agencies’ the paragraph (a)(1) through (4) including key principles expressed in intent to apply the exclusion to waste conditions, it is non-jurisdictional Justice Scalia’s plurality opinion and treatment systems constructed prior to under paragraph (b)(1). If the water does Justice Kennedy’s concurring opinion in the 1972 CWA amendments and satisfy one or more of the conditions to that case, as discussed at length in this requested that this concept be explicitly be a paragraph (a)(1) through (4) water, preamble, while respecting the overall included in the final regulatory text. the agencies will evaluate if the water is structure and function of the CWA. The The agencies have considered these identified in any of the categories of agencies have existing field and remote public comments and have finalized the excluded waters and features under tools and additional implementation waste treatment exclusion as it was paragraphs (b)(2) through (12) of this tools and methods under development proposed. As noted above, the agencies final rule. If the water meets any of that will help distinguish flow agree with commenters that this final these exclusions, the water is excluded classifications of streams and other rule codifies the longstanding exclusion even if the water satisfies one or more waterbodies. The agencies can use many that was first included in regulation in of the conditions to be a paragraph (a)(1) tools and remote and field-based 1979. The agencies disagree with through (4) water. methods described in Section III.D.3 to suggestions to expand or eliminate the As discussed above, the agencies’ distinguish between paragraph (b)(3) exclusion and have finalized the final rule includes an exclusion for ephemeral streams, swales, gullies, rills, definition as proposed. The agencies groundwater under paragraph (b)(2), and pools and paragraph (b)(4) areas also disagree with the suggestion that including groundwater drained through with diffuse stormwater run-off and the exclusion is unlawful and that there subsurface drainage systems. The final directional sheet flow over upland, is confusion over the agencies’ intent to rule clarifies that even when while comparing both against waters apply this exclusion to all waste groundwater is channelized in subject to jurisdiction under paragraph treatment systems constructed prior to subsurface systems, like tile drains used (a). Under past and existing practice, the the 1972 CWA amendments. The in agriculture, it remains subject to the agencies have substantial experience agencies clearly stated their intent to do exclusion. However, the exclusion does using remote tools and field so in the notice of proposed rulemaking not apply to surface expressions of observations to distinguish between and in this final rule, and do not believe groundwater, such as where channelized and non-channelized it is necessary to repeat this intent in the groundwater discharges to the channel features, and the agencies expect that regulatory text. The regulatory text bed and becomes baseflow in many landowners can distinguish applies to all waste treatment systems intermittent or perennial streams. The between these features using visual that meet the definition set forth agencies’ exclusion for groundwater in observations. Under this final rule, therein, including systems constructed the final rule is consistent with longstanding agency practice. landscapes with non-channelized, diffuse stormwater and overland sheet 58 See 47 FR 52290, 52291, 52305 (Nov. 19, 1982) Some commenters requested that the (deleting definition of cooling ponds at 40 CFR agencies provide guidance as to how to flow are excluded regardless of the flow 423.11(m)). implement the exclusion for ephemeral regime characteristics, because under

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22326 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

these circumstances, flow is occurring purposes, whereas the agencies are in this rule, it is not a water of the only in direct response to precipitation responsible for determining United States. over areas that meet the definition of applicability of the exclusion for CWA Once a threshold determination has ‘‘upland.’’ As explained by the Rapanos purposes, consistent with the been made that certain lands are prior plurality, regulating these features as government’s longstanding converted cropland, the EPA and the waters of the United States extends interpretation of the agencies’ authority Corps are responsible for implementing beyond the rational meaning of the under the CWA. See 33 CFR 328.3(a)(8) the prior converted cropland exclusion term. 547 U.S. at 734. (‘‘Notwithstanding the determination of for CWA purposes and identifying (as With respect to implementing the an area’s status as prior converted further explained below) whether the final rule’s paragraph (b)(5) exclusion cropland by any other Federal agency, lands have been abandoned and for certain ditches, the reach of a ditch for the purposes of the Clean Water Act, whether wetlands conditions have that meets paragraph (a)(1) or (2) of the the final authority regarding Clean returned such that they are no longer final rule is considered a water of the Water Act jurisdiction remains with eligible for the prior converted cropland United States, with ‘‘reach’’ interpreted EPA.’’); CWA Regulatory Programs, 58 exclusion in this rule and thus may be similarly to how it is used for tributaries FR 45,008, 45,036 (Aug. 25, 1993); waters of the United States. In addition in Section III.D of this notice (i.e., a Administrative Authority to Construe to working closely with the USDA, the section of a ditch along which similar § 404 of the Federal Water Pollution agencies will consider documentation hydrologic conditions exist, such as Control Act (‘‘Civiletti Memorandum’’), from NOAA and FEMA when evaluating discharge, depth, area, and slope). The 43 Op. Att’y Gen. 197 (1979). The whether a parcel of land may no longer jurisdictional status of other reaches of agencies will defer to USDA for be eligible for the CWA prior converted the same ditch must be assessed based purposes of establishing whether a cropland exclusion. In all cases, the on the specific facts and under the terms parcel or tract of land has received a burden to prove that such parcel is a of the final rule to determine the prior converted cropland determination water of the United States remains on jurisdictional status of those reaches. and is therefore eligible for the prior the agencies. The agencies’ For example, a ditch that is constructed converted cropland exclusion under this implementation of the prior converted in a tributary is not an excluded ditch rule. A landowner without an existing cropland exclusion for CWA regulatory under paragraph (b)(5) so long as it prior converted cropland determination purposes does not affect the USDA’s satisfies the flow conditions of the may seek a new determination from the administration of the FSA or a ‘‘tributary’’ definition or the conditions USDA.59 The USDA is subject to landowner’s eligibility for benefits of the ‘‘adjacent wetlands’’ definition as specific statutes designed to protect under FSA programs.60 further described in Section III.D and landowner privacy and, as such, is Under the final rule, to determine the Section III.E. Further, the ditch prohibited from making certain parcel- continuing applicability of the prior exclusion does not affect the possible specific information available without converted cropland exclusion, the Corps status of a ditch as a point source. Also, the landowner’s consent. To ensure that must first determine whether the land a ditch constructed in an adjacent the agencies can rely on a USDA prior has been ‘‘abandoned.’’ As described wetland that satisfies the conditions of converted cropland determination, the previously, prior converted cropland paragraph (a)(4) is not excluded. The landowner will need to either provide a will be considered abandoned if it is not agencies believe that the final rule’s copy of the determination or provide the used for, or in support of, agricultural ditch exclusion encompasses most agencies with a signed consent form to purposes at least once in the irrigation and drainage ditches, allow the agencies access to the relevant immediately preceding five years. In including most roadside and other information for the limited purpose of making an abandonment determination, transportation ditches, as well as most verifying USDA’s prior converted the Corps will work with the landowner agricultural ditches. cropland determination. The agencies and USDA, as appropriate, to determine In paragraph (b)(6) of this final rule, recognize that privacy and whether the land is currently or has the agencies are reconfirming the confidentiality issues concerning certain been used for or in support of longstanding prior converted cropland producer information is addressed at agricultural purposes at least once in the exclusion. This final rule also codifies section 1619 of the Food, Conservation, immediately preceding five years. As the abandonment principle as applied to and Energy Act of 2008 (7 U.S.C. noted above, there are many uses that the prior converted cropland exclusion, 8791(b)) and section 1244(b) of the Food may fall within this category, including as first articulated in the 1993 preamble Security Act of 1985, as amended (16 but not limited to, grazing; haying; (58 FR 45033), and provides additional U.S.C. 3844(b)). If a parcel is found to idling land for conservation purposes clarification regarding what constitutes be prior converted cropland, as defined (e.g., habitat; pollinator and wildlife ‘‘agricultural purposes.’’ As a result of management; and water storage, water this final rule, the change in use 59 The agencies note that the USDA’s regulatory supply, and flood management); analysis will no longer be used to definition of ‘‘prior converted cropland’’ in the FSA irrigation tailwater storage; crawfish evaluate whether the prior converted and the definition being established in this final farming; cranberry bogs; nutrient cropland exclusion applies. Under the rule have different purposes and they are final rule, when cropland has been substantively different. Based on the FSA’s retention; and idling land for soil statutory requirements, the USDA definition of recovery following natural disasters like abandoned (i.e., the cropland has not ‘‘prior converted cropland’’ requires that been used for or in support of hurricanes and drought. Some of those agricultural commodity crop production be made land uses may not be obvious to Corps agricultural purposes for a period of possible prior to 1985. See 7 CFR 12.2(a)(8); 16 greater than five years), and wetlands U.S.C. 3801 (defining converted wetland) and 16 field staff, so the agencies may rely on U.S.C. 3822(b)(1)(A) (establishing the pre-1985 public or private documentation to have returned, any prior converted exemption). If commodity crop production was cropland designation for that site will demonstrate that the land is enrolled in made possible on a particular parcel or tract of land a conservation program or is otherwise no longer be valid for purposes of the prior to 1985, that land is eligible for the prior CWA. converted cropland exclusion in this final rule. Once eligibility is determined, the agencies will 60 See the Notice of Proposed Rulemaking at 84 The USDA is responsible for making evaluate the land to determine if the exclusion FR 4193 for a summary of how the agencies determinations as to whether land is currently applies, or if the land has been historically implemented and enforced this prior converted cropland for its FSA abandoned, as described in this final rule. exclusion.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22327

being used for or in support of its natural and original condition as a result of irrigation or are naturally agricultural purposes. Such information wetland. 58 FR 45032. It is often altered occurring. may include aerial photographs, and degraded, with long-term physical Commenters also raised concern topographical maps, cultivation maps, and hydrological modifications that about whether the exclusion is only crop expense or receipt records, field- or substantially reduce the likelihood of available for rice and cranberry growing tract-specific grain elevator records, and reestablishment of hydrophytic areas. The inclusion of rice and other records generated and maintained vegetation. Consistent with cranberries in the proposed rule were in the normal course of doing business, longstanding agency policy and wetland simply examples and not intended to be including government agency records delineation procedures, if a former exhaustive. In this final rule, the documenting participation in a wetland has been lawfully manipulated agencies conclude that it is not conservation program, and other to the extent that it no longer exhibits necessary to list all crops potentially documentation reasonably establishing wetland characteristics under normal eligible for the exclusion, and therefore one or more ‘‘agricultural purposes.’’ circumstances, it would not be simply reference ‘‘agricultural The final rule requires that the land jurisdictional under the CWA. The production.’’ The relevant factor in be used for or in support of agricultural altered nature of prior converted determining the application of the purposes within the immediately cropland and its conditions constitute exclusion is not what type of crop may preceding five years. In implementing the ‘‘normal circumstances’’ of such be planted or cultivated, but whether this requirement, the agencies will areas. The agencies expect the majority the area is artificially irrigated and consider documentation from USDA, of prior converted cropland in the would revert to upland should irrigation NOAA, FEMA, and other Federal and nation to fall into this category and not cease. State agencies to determine whether the to be subject to CWA regulation, even Under the final rule, the exclusion for land was used for or in support of after it is abandoned. However, at least waters meeting the conditions of agricultural purposes in the some abandoned prior converted paragraph (b)(8) applies to artificial immediately preceding five years. For cropland may, under normal lakes and ponds created through example, USDA administers multiple circumstances, meet the definition of construction or excavation in upland or programs that track whether fields have ‘‘wetlands’’ under paragraph (c)(16). in non-jurisdictional features. Such artificial lakes and ponds would not be been planted or harvested in the normal In paragraph (b)(7), the agencies jurisdictional under the final rule even course, or enrolled in long-term clarify their longstanding view that the if they maintain a hydrologic surface conservation rotations, and the agency artificial irrigation exclusion applies provides crop insurance for years where connection to waters of the United only to the specific land being those activities were halted for reasons States or are inundated by waters of the artificially irrigated, including fields covered under their insurance policies; United States. Conveyances created in flooded for agricultural production, NOAA tracks long- and short-term upland that are physically connected to including but not limited to rice or weather patterns and can provide and are a part of the excluded feature cranberry growing, which would revert information and data concerning flood also are excluded. to upland should artificial irrigation or drought conditions that may cause or A commenter inquired as to whether cease. Historically, the agencies have contribute to idling land in support of the artificial waterbody created by taken the position that ponds for rice agricultural purposes; and FEMA impounding a jurisdictional tributary growing are generally not considered administers emergency response would be jurisdictional. The agencies programs for natural disasters, including waters of the United States, as reflected note that under the final rule, hurricanes, wildfires, and other events in the 1986 and 1988 preambles. See 51 impoundments are considered that could also require idling land for FR 41206, 41217 (November 13, 1986) jurisdictional if they impound a soil recovery and other agricultural and 53 FR 20764–65 (June 6, 1988). In paragraph (a)(1) through (4) water, purposes. The agencies will take into the past, the agencies have considered which includes jurisdictional account this information, and additional those under the artificial lakes or ponds tributaries, and contribute surface water documentation reasonably establishing category of waters that are generally flow in a typical year to a paragraph ‘‘agricultural purposes’’ when non-jurisdictional, but this final rule (a)(1) water or are inundated by flooding evaluating whether cropland has been includes them in the artificial irrigation from a paragraph (a)(1) through (3) used for or in support of agricultural exclusion category as any wetland crop water in a typical year. Impounding a purposes in the immediately preceding species, such as rice and cranberry jurisdictional tributary does not create a five years. operations, that is typically supplied non-jurisdictional lake or pond that If the Corps determines that the land with artificial flow irrigation or similar would be excluded under paragraph is abandoned, then it must evaluate the mechanisms. (b)(8), but rather creates a jurisdictional current condition of the land to A number of commenters addressed impoundment so long as it meets the determine whether wetland conditions the difficulty in proving that land would conditions of paragraph (a)(3) as defined have returned. If wetlands are currently revert to upland when irrigation ceased in paragraph (c)(6). The agencies note present on the property, the agencies and suggested clarification as to that artificial lakes and ponds that are will determine whether the wetlands are whether documentation was needed as excluded from the definition of ‘‘waters ‘‘adjacent wetlands’’ and therefore proof. The agencies agree that proving of the United States’’ could, in some ‘‘waters of the United States,’’ consistent that land would revert to upland may be circumstances, be point sources of with this final rule. As the term ‘‘prior challenging in some circumstances. The pollutants subject to sections 301 and converted cropland’’ suggests, and as agencies have developed strategies and 402 of the Act. stated in the preamble to the 1993 Rule, guidance to assist with determining if Under paragraph (b)(9), water-filled land properly designated as prior wetland conditions will persist when depressions constructed or excavated in converted cropland has typically been irrigation ceases. This includes, but is upland or in non-jurisdictional waters so extensively modified from its prior not limited to, utilizing aerial that are incidental to mining or condition that it no longer exhibits photography, soil maps, LiDAR, remote construction activity, and pits excavated wetland hydrology or vegetation, and no sensing, and field assessments to in upland or in non-jurisdictional longer performs the functions it did in determine if wetland conditions are the waters for the purpose of obtaining fill,

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22328 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

sand, or gravel are excluded from the system is abandoned or otherwise the ditch is jurisdictional if the non- definition of ‘‘waters of the United ceases to serve the treatment function jurisdictional ditch conveys surface States.’’ To determine whether a water for which it was designed, it does not water flow in a typical year to the or feature meets this exclusion, the continue to qualify for the exclusion. downstream jurisdictional reach. agencies will evaluate whether the Some commenters suggested the I. Placement of the Definition of ‘‘Waters water feature is constructed or agencies clarify the way in which the excavated in upland or in non- waste treatment system exclusion is of the United States’’ in the Code of jurisdictional waters as part of these currently implemented. Many Federal Regulations industrial activities. In addition, such comments inquired as to whether 1. What are the agencies finalizing? stormwater systems and wastewater water-filled depressions and pits could The definition of ‘‘waters of the become waters of the United States once reuse facilities are considered part of a United States’’ has historically been construction or mining activities have complete waste treatment system for placed in eleven locations in the Code permanently ceased and the depressions purposes of the waste treatment system of Federal Regulations (CFR). For the or pits meet the conditions of a exclusion. To enhance clarity, the sake of simplicity, in this final rule, the paragraph (a)(1) through (4) water. agencies have provided in the final rule The final rule excludes in paragraph two related exclusions in paragraphs agencies are codifying the definition of (b)(10) stormwater control features (b)(10) and (b)(11) and have added ‘‘waters of the United States’’ in only constructed or excavated in upland or in settling basins and cooling ponds to the two places in the CFR—once in Title 33 non-jurisdictional waters to convey, definition of ‘‘waste treatment system’’ (which implements the Corps’ statutory treat, infiltrate, or store stormwater run- in paragraph (c)(15). The agencies note authority) and once in Title 40 (which off. As stated previously, the rule that cooling ponds that are created generally implements the EPA’s excludes a diverse range of stormwater under CWA section 404 in jurisdictional statutory authority). control features that are currently in waters and that have CWA section 402 2. Summary of Final Rule Rationale and place and that may be developed in the permits are subject to the waste Public Comment future. To determine if such a water or treatment system exclusion under the The agencies proposed to maintain feature meets the exclusion, the 2019 Rule and will also be excluded agencies will evaluate whether the under the final rule. Cooling ponds the definition of ‘‘waters of the United stormwater feature is constructed or created to serve as part of a cooling States’’ at 33 CFR 328 and in ten excavated in upland or in non- water system with a valid State or locations in Title 40. The agencies jurisdictional waters. Federal permit constructed in waters of solicited comment on an alternative Paragraph (b)(11) of the final rule the United States prior to enactment of approach under which the definition clarifies that groundwater recharge, the 1972 amendments of the CWA and would be codified in just two locations water reuse, and wastewater recycling excluded from jurisdiction under the within the CFR, rather than in the structures constructed or excavated in 2019 Rule also remain excluded under eleven locations in which it has upland or in non-jurisdictional waters the final rule. Some commenters on the previously appeared. Most commenters are excluded. To determine whether a proposed rule’s waste treatment system recommended that the definition of such a structure meets this exclusion, exclusion expressed confusion ‘‘waters of the United States’’ be the agencies will evaluate whether the regarding whether stormwater treatment codified twice, once in Title 33 of the water or feature is constructed or features would be excluded under the CFR and once in Title 40 of the CFR. excavated in upland or in non- exclusion for stormwater control These commenters recommended jurisdictional waters. This exclusion features or under the waste treatment limiting codification to two locations in includes detention and retention basins exclusion. Such determinations will order to clarify that there is a single as well as groundwater recharge basins depend on the specific attributes of the definition of ‘‘waters of the United and infiltration ponds excavated in control and the water feature and thus States’’ applicable to the entire CWA, to upland or in non-jurisdictional waters need to be made on a case-by-case basis. reduce confusion and conflicting for wastewater recycling. The exclusion It is possible that a stormwater feature interpretations under different also covers water distributary structures could qualify for both the stormwater programs, and to promote ease of use for that are built in upland or in non- control features exclusion and the waste the regulated community and for jurisdictional waters for water recycling. treatment systems exclusion. This same laypersons. Many of these commenters These features often connect or carry principle applies to other exclusions suggested including a cross-reference in surface water flow to other water that may have similar cross-over the original ten locations of Title 40 of recycling structures, for example, a features, like certain ditches used in the CFR. Some commenters channel or ditch that carries water to an stormwater management systems. recommended continuing the agencies’ infiltration pond. Consistent with It is important to reiterate that while practice of codifying the definition of longstanding practice, the agencies do the waters and features listed in the ‘‘waters of the United States’’ in eleven not consider these water distributary final rule’s exclusions are not waters of locations within the CFR. systems jurisdictional. the United States, some of them may The agencies agree with commenters As discussed previously, the agencies convey surface water flow to a that stated that codifying the definition are not changing the longstanding downstream jurisdictional water, so that of ‘‘waters of the United States’’ in two approach to implementing the waste reaches of a water upstream and locations within the CFR will reduce treatment system exclusion. As a result, downstream of the excluded water or confusion and promote ease of use for the agencies will continue to apply the feature may meet the definition of States, Tribes, local government, the exclusion to systems that are treating ‘‘tributary’’ in paragraph (c)(12). For regulated community, and the general water to meet the requirements of the example, when some water from a public. With this final rule, the agencies CWA. Discharges from these systems to tributary is moved into a downstream are codifying the definition of ‘‘waters waters of the United States would jurisdictional water through an of the United States’’ in Title 33 of the continue to be subject to regulation by excluded ditch, the ditch itself is CFR, which implements the Corps’ the CWA section 402 permitting excluded from jurisdiction under the statutory authority, at 33 CFR 328.3, and program. Similarly, if a waste treatment final rule but the tributary upstream of in Title 40, which generally implements

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22329

the EPA’s statutory authority, at 40 CFR regulated public, States, Tribes, and limitations as comparative tools for 120.2. In the sections of the CFR where other stakeholders. CWA jurisdiction are not surprising. the EPA’s regulatory definition Some commenters raised concerns Due in part to the resolution of the previously existed, 40 CFR 110.1, 112.2, regarding the limitations of data data, limitations of the NHD for 116.3, 117.1, 122.2, 230.3, 232.2, 300.5, currently available for creating purposes of accurately mapping the 302.3, 401.11, and Appendix E to 40 geospatial datasets of jurisdictional scope of jurisdictional waters under the CFR part 300, this final rule cross- waters, particularly commenting on the CWA include errors of omission (e.g., references the newly created section of limitations of national datasets such as failure to map streams that exist on the the regulations containing the definition the National Hydrography Dataset ground); errors of commission (e.g., of ‘‘waters of the United States.’’ The (NHD) and the National Wetlands mapping streams that do not exist on agencies have placed the EPA’s Inventory (NWI). Some commenters the ground); horizontal positional definition of ‘‘waters of the United expressed concerns about the inaccuracies; misclassification of stream States’’ in a previously unassigned part resolution, completeness, accuracy, and flow condition, particularly in of 40 CFR. The change in placement has usefulness of publicly-available data, headwaters; and inconsistent mapping no implications on CWA program with some stating that geospatial in different parts of the country. The implementation; it is made for the sole datasets cannot accurately assess the NWI presents similar challenges for purpose of enhancing the clarity of the details needed to remotely determine or identifying federally-regulated waters, federal regulations. Placing the delineate jurisdictional waters. Other including the foundational obstacle of definition of ‘‘waters of the United commenters noted that, despite the having a ‘‘wetlands’’ definition that States’’ in a single section in the part of limitations in the available data, the differs from the federal regulatory the regulations that implements the agencies should attempt to quantify ‘‘wetlands’’ definition. The NWI also EPA’s authority and once again in the changes in the jurisdictional status of contains errors of omission (e.g., failure part of the regulations that implements specific waterbody categories as a result to map wetlands that exist on the the Corps’ authority makes clearer to of the final rule. ground), errors of commission (e.g., members of the public that there is a The agencies agree that there are mapping wetlands that do not exist on single definition of ‘‘waters of the significant limitations to the extent to the ground), and potentially inaccurate United States’’ applicable to the CWA which currently available data can be wetland boundary identification. The and its implementing regulations. used to identify the scope of all or even limitations identified herein are a subset of jurisdictional waters. There examples and do not represent an IV. State, Tribal, and Federal Agency are currently no comprehensive datasets Datasets of Waters of the United States exhaustive list of challenges faced by through which the agencies can depict the agencies in potentially using them to During the extensive pre-proposal the universe of federally-regulated identify the scope of CWA jurisdiction. outreach to the general public and waters under the CWA. For example, For a more detailed discussion of the focused engagement with States and the agencies attempted to use the NHD NHD and NWI datasets and their Tribes, the agencies heard from a at high resolution and NWI to assess the limitations for use as standalone tools to number of States about their familiarity potential change in CWA jurisdiction as determine the full scope of waters that with waters within their borders and a result of the proposed rule to revise are and are not waters of the United their expertise in aquatic resource the definition of ‘‘waters of the United States, see Chapter II of the Resource mapping. As co-implementers of CWA States,’’ but ultimately concluded that and Programmatic Assessment programs, they also emphasized the the limitations of these datasets supporting this final rule. potential benefit of greater State and precluded their use for quantifying the It has been the consistent position of tribal involvement in jurisdictional extent of waters whose jurisdictional the agencies that the NHD and the NWI determinations. For these reasons, status could change under the proposed do not represent the scope of waters several States suggested that the rule, as discussed in Section V and in subject to CWA jurisdiction.61 Indeed, agencies consider their knowledge and the Resource and Programmatic increase the role of States and Tribes in Assessment for the final rule. Due to 61 See, e.g., Letter from Nancy Stoner, Acting identifying those waters that are waters these limitations, which were confirmed Assistant Adm’r, EPA Office of Water, to Lamar of the United States. Stakeholders also during the public comment period for Smith, Chairman, Comm. on Science, Space, and indicated that maps could increase the proposed rule and an evaluation by Tech., U.S. House of Representatives (July 28, 2014) certainty and transparency regarding the the agencies, the agencies also did not (emphasis added), available at https:// web.archive.org/web/20180919173837/https:// data and methods used to determine use the NHD or NWI to assess potential science.house.gov/sites/republicans.science. which waters are jurisdictional and changes in jurisdiction as a result of the house.gov/files/documents/epa_releases_maps_ which waters are not. final rule. letter.pdf. (‘‘[N]o national or statewide maps have In the Notice of Proposed Rulemaking While the NHD and NWI are the most been prepared by any agency, including EPA, showing the scope of waters subject to the Clean for this rule, the agencies solicited comprehensive hydrogeographic Water Act. . . . To develop maps of jurisdictional comment as to how to create a datasets mapping waters and wetlands waters requires site-specific knowledge of the regulatory framework that would in the United States and are useful physical features of water bodies, and these data authorize interested States, Tribes, and resources for a variety of Federal are not available[.]’’) (emphasis added); see also Letter from Nancy Stoner, Deputy Assistant Adm’r, other Federal agencies to develop for the programs, including CWA programs, EPA Office of Water, to Lamar Smith, Chairman, agencies’ approval geospatial datasets they currently have technical Comm. on Science, Space, and Tech., U.S. House representing waters of the United States, limitations that present significant of Representatives (August 6, 2014), available at as well as waters excluded from the challenges for use as standalone tools to https://web.archive.org/web/20180919173837/ https://science.house.gov/sites/republicans.science. definition, ‘‘waters of the State’’ or determine the full scope of CWA house.gov/files/documents/epa_releases_maps_ ‘‘waters of the Tribe’’ within their jurisdiction and for creating geospatial letter.pdf); U.S. EPA, Mapping the Truth, The EPA respective borders. 84 FR 4154, 4198– datasets of jurisdictional waters, Blog (Aug. 28, 2014), available at https:// 4200 (February 14, 2019). This concept regardless of the regulatory definition of blog.epa.gov/2014/08/28/mapping-the-truth/ (‘‘While these [U.S. Geological Survey and Fish & was not part of the proposed regulatory ‘‘waters of the United States.’’ Wildlife Service] maps are useful tools for water text; the agencies utilized the notice to Importantly, the NHD and NWI were not resource managers, they cannot be used to solicit input and suggestions from the created for regulatory purposes, so their Continued

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22330 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

as part of the 2015 rulemaking, the the administration of CWA programs nation’s water resources and the waters agencies stated that they ‘‘do not have and attainment of water quality goals. of the United States while enhancing maps depicting waters of the United Geospatial datasets and resulting future their utility to other CWA programs that States under either present regulatory maps that indicate waters likely subject the EPA and the Corps implement. standards or those in the final [2015] to federal jurisdiction could allow In addition, the EPA’s Office of rule.’’ 62 This remains true today; the members of the regulated community to Research and Development (ORD) has agencies do not have maps of waters of more easily and quickly ascertain established an ‘‘Improved Aquatic the United States under the 2015 Rule, whether they may want to contact a Resource Mapping’’ research area, under the 2019 Rule, or under this final government agency regarding the which will be implemented in rule. For this reason, and to provide the potential need for a CWA permit. These coordination with the Corps and EPA’s public and the agencies with more datasets, when fully developed, would Office of Water. This research area information on which waters are or are promote greater regulatory certainty, could build upon longstanding EPA not waters of the United States, the relieve some of the regulatory burden aquatic resource research and leverage agencies sought public comment on a associated with determining the need existing research partnerships with possible framework for developing for a permit, and play an important part other Federal agencies, States, and geospatial datasets. in helping to attain the goals of the Tribes to improve mapping of aquatic The agencies acknowledge that they CWA. In the future, the agencies and resources. This research effort is have previously taken the position that States could use geospatial datasets to intended to support the agencies’ need ‘‘maps of all the jurisdictional or non- identify waters with applicable water for improved data to inform CWA jurisdictional waters are not feasible,’’ 63 quality standards, total maximum daily jurisdictional determinations, to support and that maps ‘‘cannot be used to loads, water quality monitoring data, other regulatory and non-regulatory determine Clean Water Act and other beneficial information in one needs, and to contribute to ongoing and jurisdiction—now or ever,’’ see U.S. layered geospatial map. new EPA research. In the long-term, the EPA, Mapping the Truth, The EPA Blog Since the proposed rule was agencies anticipate that this effort will (August 28, 2014). Rather than declaring published, the agencies have been yield improved methods of verifying the task too difficult, the agencies have engaging with other Federal agencies to aquatic resources to support CWA decided to initiate development of state- discuss existing geospatial datasets and jurisdictional determinations and other of-the-art geospatial data tools through discuss opportunities to build upon programmatic needs. In the short-term, Federal, State, and tribal partnerships to them to map the nation’s aquatic ORD intends to produce three primary provide an enhanced, publicly- resources, including both waters of the products to begin to advance this goal: accessible platform for critical CWA United States and non-jurisdictional A review of the existing aquatic information, such as the location of waters. To align the agencies’ waters of resource mapping methodologies, federally jurisdictional waters, the the United States mapping interests development of novel geospatial applicability of State and tribal water with the U.S. Department of Interior’s datasets in select watersheds, and quality standards, permitted facility (DOI) established and ever-improving development of calibration and locations, impaired waters, and other aquatic resource mapping efforts, validation datasets. All three products significant features. Such mapped including the NHD, NWI, and other can incorporate outreach efforts to features would make it easier for agency datasets, the EPA and the Corps are communicate and transfer results to field staff, the general public, property engaging with the U.S. Geological stakeholders. owners, permit-holders and others to Survey (USGS) and the U.S. Fish and The agencies also believe that any understand the relationship between Wildlife Service (FWS) and have future efforts they pursue to work with familiar geographical features and the established a technical working group to States, Tribes, and Federal agencies to overlay of CWA jurisdictional waters. develop strategies that can address their create geospatial datasets of For Federal, State, and tribal agencies, CWA mapping needs.64 The agencies jurisdictional waters will improve the such geospatial datasets could improve believe the most efficient way to address data and information that is available to their regulatory needs is to better align the public about the jurisdictional scope determine Clean Water Act jurisdiction—now or their efforts with DOI’s existing of the CWA, recognizing that data ever.’’); Letter from Kenneth J. Kopocis, Deputy processes and national mapping limitations may always exist. Many Assistant Adm’r, EPA Office of Water, to Lamar commenters supported the development Smith, Chairman, Comm. on Science, Space, and capabilities. The EPA, USGS, and FWS Tech., U.S. House of Representatives (Jan. 8, 2015) have a long history of working together of geospatial datasets or a mapping (‘‘These [USGS] maps were not prepared for the to map the nation’s aquatic resources. system of waters of the United States to purpose of, nor do they represent, a depiction of the As the agencies pursue this mapping provide a clear understanding of the scope of waters protected under the Clean Water presence or absence of jurisdictional Act.’’); Impact of the Proposed ‘‘Waters of the effort, they will continue to collaborate United States’’’ Rule on State and Local with DOI to enhance the NHD, NWI, waters. Many such commenters Governments Before the H. Comm. on Transp. & and other products to better map the provided caveats and anticipated Infrastructure and the S. Comm. on Env’t & Pub. challenges. Other commenters suggested Works, 114th Cong. (2015)(testimony of Gina 64 See Letter from David Ross, Asst. Adm’r, EPA that creating such datasets posed too McCarthy, Adm’r, EPA)(stating that the NHD and Office of Water, and Ryan Fisher, Principal Deputy NWI maps were ‘‘not used to determine jurisdiction many challenges to be worthwhile. Asst. Sec. of the Army (Civil Works), U.S. Army, Many of these commenters considered and not intended to be used for jurisdiction,’’ ‘‘are to Dr. Tim Petty, Asst. Sec. for Water and Science, not relevant to the jurisdiction of the ‘waters of the U.S. DOI, and Rob Wallace, Asst. Sec. for Fish, the development of geospatial datasets U.S.’,’’ ‘‘are not consistent with how we look at the Wildlife, and Parks, U.S. DOI (September 17, 2019); of jurisdictional waters to be infeasible jurisdiction of the Clean Water Act,’’ and have see also Letter from Dr. Jim Reilly, Director, U.S. ‘‘nothing to do, as far as I know, with any decision or inappropriate based on the need for Geological Survey, to David Ross, Asst. Adm’r, EPA field verification and maintenance to concerning jurisdiction of the Clean Water Act’’). Office of Water, and Ryan Fisher, Principal Deputy 62 See Response to Comments for the Clean Water Asst. Sec. of the Army (Civil Works), U.S. Army keep the datasets up-to-date, and the Rule, Clean Water Rule Comment Compendium (October 1, 2019); see also Letter from Gary Frazer, concern that potentially incomplete lists Topic 8: Tributaries, Docket ID. No. EPA–HQ–OW– Asst. Dir. for Ecological Services, U.S. Fish and could be inaccurately perceived as a 2011–0880–20872, p. 442, https:// Wildlife Service to David Ross, Asst. Adm’r, EPA definitive list of all waters of the United www.regulations.gov/document?D=EPA-HQ-OW- Office of Water, and Ryan Fisher, Principal Deputy 2011-0880-20872. Asst. Sec. of the Army (Civil Works), U.S. Army States. These commenters stated that 63 Id. at p. 593. (December 4, 2019). any datasets established should be used

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22331

only as a planning tool to inform resources and using this information for meaning of that term, confined of course jurisdictional determinations or to program implementation. A few State by the statutory text and Supreme Court provide guidance on the location of and tribal commenters expressed guidance recognizing the outer limits of potential waters of the United States. interest in working as partners with the the agencies’ authorities. See, e.g., The agencies solicited comment on agencies on mapping jurisdictional Rapanos, 547 U.S. at 758 (Roberts, C.J., potential approaches to establishing a waters. Some State and local concurring) (‘‘Given the broad, framework to allow States, Tribes, or governments offered to share existing somewhat ambiguous, but nonetheless Federal agencies to create geospatial geospatial data with the agencies. Other clearly limiting terms Congress datasets of jurisdictional waters. Some State commenters were less supportive employed in the Clean Water Act, the commenters supported deferring this of an effort to map jurisdictional waters, Corps and the EPA would have enjoyed effort to a future rulemaking. Several with some raising concerns about the plenty of room to operate in developing commenters recommended using regulatory implications of mapping some notion of an outer bound to the existing technology to prioritize based on experiences in their States. reach of their authority.’’) (emphasis in mapping traditional navigable waters Several State commenters raised original). With this action, the agencies prior to attempting to map jurisdictional concerns about costs of a mapping are finalizing a new definition of tributaries or wetlands. A few effort, with some commenters pointing ‘‘waters of the United States.’’ commenters suggested engaging in to their own costly past mapping efforts. As discussed in Section II.E, the several pilot projects or a phased One commenter cited a State study that agencies conclude that this final rule approach before rolling out a dataset found that the State’s best attempt at clearly establishes the scope of nationwide. Some commenters mapping wetlands was only 56 percent jurisdictional waters under the CWA suggested that data in the geospatial successful at classifying wetlands consistent with the legislative history datasets should either expire or be compared to field delineations. The and text of the statute and Supreme updated every five years, to reflect the agencies will consider the comments Court case law and provides greater timeframe for approved jurisdictional and concerns raised and coordinate regulatory predictability than the 2019 determinations or to ensure that the closely with States, Tribes, and other Rule regulatory text as interpreted by datasets effectively represent current Federal agencies in future efforts to the Supreme Court and implemented conditions. develop geospatial datasets. The through agency guidance. This final rule The agencies solicited comment on agencies do not anticipate developing a replaces the 2019 Rule. appropriate features and attributes of regulatory framework for geospatial With respect to the CWA section 404 the website that would publish this datasets that would impose permitting program for the discharge of information, as well as any privacy requirements on States and Tribes to dredged and fill material, the agencies considerations the agencies should develop geospatial datasets of recognize that this final rule could affect understand. A few commenters opposed jurisdictional waters; the option would approved jurisdictional determinations making public the details of simply be available for interested States (AJDs) issued before the 2015 Rule or in jurisdictional determinations or and Tribes. expressed privacy concerns regarding The agencies believe that pursuing the States where the 2015 Rule was not in the creation of geospatial datasets of development of geospatial datasets of effect due to litigation, under the 2015 jurisdictional waters. Some commenters waters of the United States could Rule, or under the 2019 Rule. An AJD stated that jurisdictional determinations provide for greater regulatory certainty is a document issued by the Corps or geospatial datasets of jurisdictional and provide important information to stating the presence or absence of waters waters should be made available to the States, Tribes, the regulated community, of the United States on a parcel. See 33 public. and the public. The agencies are in the CFR 331.2. As a matter of policy, AJDs As the agencies work to pursue early stages of this effort, and they will are valid for a period of five years from improved geospatial mapping of waters be informed by public comments and the date of issuance unless new in the future, they intend to also work suggestions received in response to this information warrants revision before the to enhance information that is already rulemaking as they move forward. expiration date or a District Engineer available to the public on jurisdictional identifies specific geographic areas with determinations. The Corps maintains a V. Overview of the Effects of the Rule rapidly changing environmental website at https://permits.ops.usace. and Supporting Analyses conditions that merit re-verification on army.mil/orm-public that presents This section provides an overview of a more frequent basis. See U.S. Army information on the Corps’ approved the potential effects of the final rule on Corps of Engineers, Regulatory jurisdictional determinations and CWA federal and state regulatory programs Guidance Letter No. 05–02, § 1(a), p. 1 section 404 permit decisions. Similarly, and potential economic impacts of the (June 2005) (RGL 05–02). The possessor the EPA maintains a website at https:// final rule. Additional detail on these of a valid AJD may request that the watersgeo.epa.gov/cwa/CWA-JDs/ that analyses are contained in and described Corps reassess a parcel and grant a new presents information on approved more fully in the Resource and AJD before the five-year expiration date. jurisdictional determinations made by Programmatic Assessment for the An AJD constitutes a final agency action the Corps and the EPA under the CWA Navigable Waters Protection Rule: pursuant to the agencies’ definition of since August 28, 2015. These websites Definition of ‘‘Waters of the United ‘‘waters of the United States’’ at the time will incorporate approved jurisdictional States’’ and in the Economic Analysis of its issuance. See Hawkes, 136 S. Ct. determinations made under the revised for the Navigable Waters Protection at 1814. This final rule does not definition of ‘‘waters of the United Rule: Definition of ‘‘Waters of the invalidate an AJD that was issued before States’’ that the agencies are finalizing United States.’’ Copies of these the 2015 Rule or in States where the in this notice. documents are available in the docket 2015 Rule was not in effect due to In the Notice of Proposed for this action. litigation, under the 2015 Rule, or under Rulemaking, the agencies expressed In defining the term ‘‘waters of the the 2019 Rule. As such, these AJDs will interest in learning about experiences United States’’ under the CWA, remain valid until the expiration date States, Tribes, and other Federal Congress gave the agencies discretion to unless one of the criteria for revision is agencies have had with mapping aquatic articulate reasonable limits on the met under RGL 05–02, or the recipient

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22332 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

of such an AJD requests that a new AJD revised definition of ‘‘waters of the in 2006 with the fractured Rapanos be issued pursuant to this final rule. United States.’’ The agencies solicited decision, in 2007 and 2008 with the Preliminary jurisdictional comment on all aspects of the analyses agencies’ attempts to discern the determinations (PJDs) issued by the performed and published in support of meaning of the Rapanos decision Corps, however, are merely advisory in the proposed rule, including the through guidance and throughout the nature, make no legally binding assumptions made, information used, ensuing decade of litigation that tested determination of jurisdiction, and have and the three case studies presented in those interpretations, in 2015 with a no expiration date. See 33 CFR 331.2; the economic analysis. The agencies major rulemaking to redefine the see also U.S. Army Corps of Engineers, further requested that commenters operative phrase ‘‘waters of the United Regulatory Guidance Letter No. 16–01 provide any data that could assist the States’’ and throughout the complex (October 2005). PJDs do not definitively agencies in evaluating and litigation following that rulemaking, and state whether waters of the United characterizing potential effects of the in 2019 with a rule to repeal the 2015 States are present on a parcel. See proposed rule. The agencies have Rule and recodify pre-existing Hawkes, 136 S. Ct. at 1812. However, as incorporated additional information on regulations. As the Chief Justice of the with AJDs, a recipient of a PJD may tribal programs, updated the aquatic Supreme Court succinctly observed in request a new PJD or an AJD be issued resource analysis, and have made other 2016, ‘‘[i]t is often difficult to determine under this final rule. changes, particularly in light of the final whether a particular piece of property This final rule should not rule repealing the 2015 Rule and contains waters of the United States . . significantly affect the scope of waters recodifying the pre-existing regulations . .’’ Army Corps of Eng’rs v. Hawkes Co., over which the Corps retains permitting (the 2019 Rule). The 2019 Rule was 136 S. Ct. at 1812. Given the authority in States that have assumed finalized between the proposed and complicated history of ‘‘waters of the the CWA section 404 dredged or fill final rulemaking phases of this rule and United States,’’ the agencies are not material permit program pursuant to changed the baseline for the analyses aware of any means to quantify changes section 404(g), or the waters over which and discussion of potential effects on in CWA jurisdiction with any precision the Corps would retain permitting aquatic resources, CWA programs, and that may or may not occur as a result of authority should States and Tribes costs. The agencies note that the final this final rule. assume the program in the future. When rule is not based on the information in The agencies acknowledge that they States or Tribes assume administration the agencies’ economic analysis or faced criticism from many commenters of the section 404 program, the Corps resource and programmatic assessment. regarding the accuracy and assumptions retains administration of permits in See, e.g., NAHB, 682 F.3d at 1039–40. they made when attempting to estimate certain waters. 33 U.S.C. 1344(g). The This information was not used to changes in jurisdiction for the 2015 scope of CWA jurisdiction as defined by establish the new regulatory text for the Rule’s economic analysis (EA), which ‘‘waters of the United States’’ is distinct definition of ‘‘waters of the United was then utilized for a portion of the from the scope of waters over which the States.’’ proposed rule EA and the 2019 Rule EA. Corps retains authority following State As discussed in Section IV and in the For the 2015 Rule EA, the agencies or tribal assumption. The Corps-retained proposed rule preamble (84 FR 4200), reviewed Corps approved jurisdictional waters are identified during approval of the agencies are not aware of any map determinations made under pre-2015 a State or tribal section 404 program, or dataset that accurately or with any Rule practice to evaluate how the and any modifications are approved precision portrays the scope of CWA jurisdictional status of those waters through a formal EPA process. 40 CFR jurisdiction at any point in the history might change under the 2015 Rule. 233.36. The way in which the Corps of this complex regulatory program. Other commenters on the proposed rule identifies waters to be retained was Establishing a mapped baseline from critiqued the agencies for not repeating most recently addressed on July 30, which to assess regulatory changes is the analysis used to support the 2015 2018, in a memorandum from R.D. likewise impracticable at this time, just Rule’s EA. The agencies have James, Assistant Secretary of the Army as it was when the agencies finalized determined that the analysis of (Civil Works).65 The EPA also intends to the 2015 Rule.66 The challenge of approved jurisdictional determinations clarify the issue in a separate ongoing identifying an accurate baseline is conducted for the 2015 Rule EA may rulemaking process designed to further complicated by a long history of have incorrectly assumed that the 2015 facilitate State and tribal assumption of an evolving definition of ‘‘waters of the Rule would affect entities regulated the section 404 program. The scope of United States.’’ As summarized in under the CWA in direct proportion to waters assumed by States or Tribes that Section II, what was understood about the percent change in positive are granted permitting authority under the potential scope of CWA jurisdiction jurisdictional determinations. This section 404(g) is dependent on the changed in the 1970s following National proportional assumption could have definition of ‘‘waters of the United Resources Defense Council, Inc. v. yielded overestimates of costs and States,’’ and will change with this final Callaway, 392 F. Supp. 685 (D.D.C. benefits of the rule. Thus, the agencies rule. For the States that already have 1975), in the mid-1980s with Riverside have determined that conducting such section 404 programs (Michigan and Bayview and regulatory updates, in 2001 an analysis for this final rule would not New Jersey), those States have with the landmark SWANCC decision, be appropriate. corresponding State wetland permitting In addition, some commenters programs that may apply in State waters 66 See U.S. EPA and Department of the Army, questioned the adequacy of the that will no longer be jurisdictional Response to Comments of the EPA-Army Clean agencies’ Resource and Programmatic Water Rule at Topic 8: Tributaries p. 442 (May 20, Assessment (RPA) analyses for the under the final rule. 2015) (‘‘2015 Rule RTC’’) (Docket ID: EPA–HQ– For the proposed rule, the agencies OW–2011–0880–20872), available at https:// proposed rule, primarily because the conducted a series of analyses to better www.regulations.gov/document?D=EPA-HQ-OW- agencies did not use the NHD or NWI, understand the potential effects across 2011-0880-20872.(‘‘The agencies do not have maps even heavily caveated. Other depicting waters of the United States under either commenters raised concerns about the CWA programs associated with a present regulatory standards or those in the final rule.’’); see also id. at 593 (‘[M]aps of all the lack of the quantification of potential 65 The memorandum is available at https:// jurisdictional or non-jurisdictional waters are not changes in jurisdiction and asserted that www.army.mil/e2/c/downloads/525981.pdf. feasible[.]’’). the agencies overestimated the ability of

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22333

States to regulate additional non- on CWA programs, and the RPA Rule as implemented. For instance, the jurisdictional waters. Other commenters provides further information on 2019 Rule, as implemented, would noted that even though the NHD and the programs addressing aquatic resource regulate certain ephemeral streams NWI have limitations, the errors quality under other Federal statutes. To found to have a significant nexus with associated with the datasets would further inform the final rule and in an traditional navigable waters according underestimate, not overestimate, the effort to respond to comments received to the 2008 Rapanos Guidance, whereas scale of resources likely to be identified on the proposed rule analyses, the the revised definition in this final rule as non-jurisdictional under the agencies conducted additional research categorically excludes ephemeral proposed rule. on current State and tribal laws and features. Because fewer waters and As discussed in the RPA for the final programs to better understand how wetlands are federally regulated under rule, the agencies attempted to use States and Tribes already regulate this rule relative to the 2019 Rule as publicly available data from national waters within their borders. implemented, the agencies anticipate datasets (i.e., the NHD and the NWI) to Descriptions of State programs are in that the regulated public would need to estimate the potential extent of aquatic Appendix A of the RPA, and prepare fewer CWA permit applications. resources across the country before descriptions of tribal programs are in Additionally, some facilities currently publishing the proposed rule. The Appendix B of the RPA. discharging under a CWA section 402 agencies ultimately concluded that the To assess the potential effects of the permit may no longer be required to limitations of the datasets (e.g., errors of rule on aquatic resources, the agencies obtain permit coverage under federal omission, errors of commission, examined data records in the Corps’ law where there is a jurisdictional positional inaccuracies, Operation and Maintenance Business change to the receiving water and the misclassification of flow regime, Information Link, Regulatory Module receiving water does not convey different definitions compared to both (ORM2) database that documents Corps pollutants from a point source to a water existing and proposed regulations) decisions regarding the jurisdictional of the United States. The agencies note precluded using the NHD and the NWI status of various aquatic resource types that they retain section 402 permitting to quantify the potential extent of waters (i.e., jurisdictional determinations). The authority over discharges that reach whose CWA jurisdictional status could aquatic resource types used in ORM2 jurisdictional waters through change under the proposed revised generally track the Rapanos Guidance conveyances, such as non-jurisdictional definition. Because these limitations (e.g., ‘‘relatively permanent waters,’’ waters. In some section 402 permits, still exist, the agencies decided to ‘‘non-relatively permanent waters’’) but water quality-based effluent limitations qualitatively describe the potential do not directly correlate with the terms may be modified, subject to applicable effects of this final rule relative to the used in the final rule, with limited anti-backsliding permit requirements, baseline of the 2019 Rule as exceptions. For the final rule, the where a facility discharges to a water implemented. agencies updated their analysis from the that is non-jurisdictional under the final Some commenters stated that the RPA proposal RPA and EA to reflect data rule, but the pollutants discharged still and the EA for the proposed rule from ORM2 for fiscal years 2013–2018. reach a jurisdictional water. Any thoroughly addressed the potential Because of various limitations in permittee with questions about the impacts of the proposed revised accurately estimating a change in CWA effects of this rule should consult their definition, correctly acknowledged the jurisdiction, as described in Section IV permitting authority, as State law may technical limitations of the analysis and of this notice, and uncertainties be broader than federal authority under datasets, accurately noted that the regarding the way States and Tribes the CWA. A reduction in jurisdictional avoided costs of the proposal far might respond following a change in the waters under the final rule may reduce outweighed any foregone benefits it may definition of ‘‘waters of the United the number of federal permits that have, and agreed with the agencies’ States,’’ many of the potential effects of require a section 401 certification and decision not to rely on flawed data to the final rule are discussed may reduce the applicability of the perform comparative analyses of the qualitatively, and some are discussed section 311 program and associated Oil proposed regulatory changes. Other quantitatively where possible. commenters expressed support for the As discussed in the RPA and the EA Spill Liability Trust Fund, as discussed RPA’s comprehensive analysis of the for the final rule, the agencies also in more detail in the EA and RPA. potential implications of the revised evaluated potential effects of the final A change in the scope of CWA definition for all relevant CWA rule across CWA regulatory programs. jurisdiction could affect existing and programs and the interplay between The RPA and EA describe certain future State or tribal CWA section relevant State and federal regulations. potential short-term effects for CWA 303(d) lists and Total Maximum Daily Recognizing that there will be regulatory programs; however, the Load (TMDL) restoration plans under limitations with any approach, in the potential long-term effects will depend section 303(d). For example, some RPA and EA for the final rule the on whether or how States and Tribes States or Tribes may not assess non- agencies describe how the revised choose to modify their existing jurisdictional waters, and thus may definition compares to the baseline of regulatory programs. For example, identify fewer waters as impaired and the 2019 Rule as implemented (i.e., the States may elect to make changes to may develop fewer TMDLs. States may pre-2015 regulations that were their statutes or regulations to regulate continue to apply their own State law- recodified in 2019, and as interpreted by waters that are no longer jurisdictional based programs to identify and restore the Supreme Court and implemented under the final rule. As discussed more impaired waters, although this activity consistent with those decisions and fully in the EA, complete State ‘‘gap- would not be required under the CWA informed by agency guidance). See 84 filling’’ could result in a zero-net impact for waters that are not jurisdictional FR 56626 (Oct. 22, 2019). The in the long-run. under the final rule. The agencies documents outline the agencies’ Regarding the permitting programs expect that States will, however, be able assessment of the potential effects of the under sections 402 and 404 of the CWA, to focus their section 303(d) financial revised definition on types of aquatic the final rule will reduce the scope of resources on a more targeted range of resources (e.g., wetlands, tributaries, waters subject to CWA permitting waters and could accelerate adoption of impoundments) across the country and compared with the baseline of the 2019 plans and standards on waters that may

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22334 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

have more ecological value. If Western quantitative assessment limited to Stage respectively. In either case, however, States, for example, do not need to 1. Because the 2015 Rule was repealed net benefits would increase, assuming assess dry washes in the desert and (84 FR 56626) between the proposed that a State can more efficiently allocate establish CWA water quality standards and final rule stages of this rulemaking, resources towards environmental for those typically dry ‘‘waters,’’ they the EA for this final rule does not protection due to local knowledge of can focus their research and restoration contain the Stage 1 quantitative analysis amenities and constituent preferences. resources on waters with more comparing the 2015 Rule with the pre- As effective regulation requires political substantial aquatic habitat. For existing regulations. capital and fiscal resources, however, The EA for the final rule incorporates additional discussion of potential effects the likely best indication of the way in on State and tribal water quality an updated analysis depicting how which States will exercise their standards and section 303(d) programs, States may respond to a change in CWA authority as the Federal government see the RPA. jurisdiction. This analysis of State Some commenters on the proposed authorities and programs was initially changes the scope of CWA jurisdiction rule raised concerns about its potential presented in the EA for the related is the way in which they have exercised effects on CWA financial assistance rulemaking effort, Economic Analysis authority in the past and whether the programs. The agencies do not for the Final Rule: Definition of ‘‘Waters infrastructure to manage the regulatory anticipate that the final rule will affect of the United States’’—Recodification of programs already exists. The qualitative the EPA’s current CWA financial Pre-Existing Rules. Potential State analysis is intended to provide assistance programs. With respect to responses to a change in the definition information on the likely direction of CWA sections 106 and 319 grant of a ‘‘water of the United States’’ fall the potential effects of the final rule on programs, the authorizing language and along a continuum and depend on legal CWA regulatory programs. the range of programmatic activities are and other constraints. Some States rely In addition, the agencies conducted sufficiently broad that they have long on the federal CWA to regulate impacts case studies in three major watersheds addressed both jurisdictional and non- to wetlands and other aquatic resources. (Ohio River basin, Lower Missouri River jurisdictional waters, so it is unlikely These States may be affected by this basin, and Rio Grande River basin) to that a change in the definition of action; however, nothing in the CWA or ‘‘waters of the United States’’ will affect this final rule prevents or precludes provide information for a quantitative the programs and funding allocations. states from regulating more stringently assessment of the potential effects of the Other commenters raised concerns than federal requirements. Some States, final rule. The case studies considered about potential effects of the proposed based on limitations established in State potential ecological effects, and their rule on sources of drinking water. law, cannot currently regulate a more accompanying potential economic Drinking water regulations under the expansive set of waters than those effects for programs implemented (SDWA) will subject to the federal CWA definition of pursuant to sections 311, 402, and 404 continue to apply to water delivered by ‘‘waters of the United States.’’ In of the CWA. Because of data limitations, public water systems, with the goal of contrast, States that regulate surface the agencies were able to provide protecting public health. The Drinking waters and wetlands as broadly as or national-level estimates of the potential Water State Revolving Fund is available more broadly than the 2019 Rule as avoided permit and mitigation costs and to help fund State source water implemented, independently of the forgone benefits for only the CWA protection programs and finance scope of the federal CWA, may not be section 404 program. The agencies improvements to drinking water affected by this action. Complete State developed several scenarios to estimate utilities. Overall, the potential effects of ‘‘gap-filling’’ could result in no change the national annual avoided costs and a change in CWA jurisdiction on in compliance costs to the regulated foregone benefits of the CWA section drinking water quality will depend on community and no change in 404 program under the final rule using whether activities affecting non- environmental benefits (that is, neither different assumptions about potential jurisdictional waters also affect the avoided costs nor forgone benefits State dredged and fill regulation of quality of the water at a drinking water would occur), suggesting a zero-net waters. Using the same methodologies utility’s water intake, and the impact in the long-run. States that fall capabilities of individual drinking water between these extremes are evaluated by employed in the case studies, under utilities to respond to a potential change either including or excluding them from scenarios assuming State regulation of in source water quality. the estimates of cost savings and forgone dredged and fill activities in newly non- In the EA for the proposed rule, the benefits. In reality, some States may jurisdictional waters, the agencies agencies applied a two-stage analysis to regulate only a subset of affected waters, estimate that the final rule would make the best use of limited local and but the agencies did not have sufficient produce annual avoided costs ranging national level water resource information to incorporate that level of between $109 million to $264 million information in their effort to assess the detail into the analysis. and annual forgone benefits ranging potential implications of the proposal. Another potential outcome of the between from $55 million to $63 When the proposed rule was published, change in CWA jurisdiction is that State million. Under the scenario that the agencies determined that the governments may be able to find more assumes that no States will regulate outputs of this two-stage analysis were efficient ways of managing local dredged and fill activities in newly non- the best way to illustrate the potential resources than the Federal government, jurisdictional waters, an outcome the overall impact of the proposed rule consistent with the theory of agencies believe is unlikely, the compared to the 2015 Rule being in ‘‘environmental federalism’’ as agencies estimate the final rule would effect nationwide (i.e., the sum effect of described in the EA for the final rule. produce annual avoided costs ranging both stages) and the 2015 Rule not being Depending on the value of a newly from $245 million to $513 million, and in effect (i.e., second stage only). In the characterized non-jurisdictional water, annual forgone benefits are estimated at ‘‘Stage 1’’ analysis in the EA for the States may or may not choose to proposed rule, the agencies used the EA regulate that water and the compliance $173 million. for the 2015 Rule as a starting point, costs and environmental benefits of its made several updates, and developed a regulation could increase or decrease,

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22335

VI. Statutory and Executive Order no new approval or application these impacts on these business sectors. Reviews processes required as a result of this In addition, States and Tribes may rulemaking that necessitate a new A. Executive Order 12866: Regulatory already address waters potentially Information Collection Request (ICR). Planning and Review; Executive Order affected by a revised definition, thereby 13563: Improving Regulation and D. Regulatory Flexibility Act reducing forgone benefits. Regulatory Review The Regulatory Flexibility Act (RFA) The sectors likely to be most impacted This action is an ‘‘economically generally requires an agency to prepare by the rule are mitigation banks and significant regulatory action’’ that was a regulatory flexibility analysis of any companies that provide aquatic resource submitted to the Office of Management rule subject to notice and comment restoration services. Because fewer and Budget (OMB) for review. Any rulemaking requirements under the waters would be subject to the CWA changes made in response to OMB Administrative Procedure Act or any regulation under the final rule than are recommendations have been other statute unless the agency certifies subject to regulation under the 2019 documented in the docket for this that the rule will not have a significant Rule, there may be a reduction in action. In addition, the agencies economic impact on a substantial demand for mitigation and restoration prepared an analysis of the potential number of small entities. Small entities services under the section 404 costs and benefits associated with this include small businesses, small permitting program. Assessing impacts action. This analysis is contained in the organizations, and small governmental to this sector is problematic, however, Economic Analysis for the Navigable jurisdictions. because this sector lacks a precise SBA Waters Protection Rule: Definition of For purposes of assessing the impacts small business definition, and many of ‘‘Waters of the United States,’’ which is of this final rule on small entities, the businesses that fall within this available in the docket and briefly ‘‘small entity’’ is defined as: (1) A small sector are also classified under various summarized in Section V. Additional business that is a small industrial entity other North American Industry analysis can be found in the Resource as defined in the U.S. Small Business Classification System (NAICS) and Programmatic Assessment for the Administration’s size standards (see 13 categories. Furthermore, impacts to this CFR 121.201); (2) a small governmental Navigable Waters Protection Rule: sector would not be the direct result of jurisdiction that is a government of a Definition of ‘‘Waters of the United these businesses complying with the States’’ which is also available in the city, county, town, school district, or special district with a population of less final rule, rather, they would be the docket. indirect result of other entities no longer While the economic analysis is than 50,000; or (3) a small organization being required to mitigate for discharges informative in the rulemaking context, that is any not-for-profit enterprise that of dredged or fill material into waters the agencies are not relying on the is independently owned and operated economic analysis performed pursuant and is not dominant in its field. that would no longer be jurisdictional to Executive Orders 12866 and 13563 The purpose of the RFA is ‘‘to fit under the final rule. In addition, and related procedural requirements as regulatory and informational potential impacts would be lessened a basis for this final rule. See, e.g., requirements to the scale of the when accounting for State and tribal NAHB, 682 F.3d at 1039–40 (noting that businesses, organizations and dredged and fill programs that would the quality of an agency’s economic governmental jurisdictions subject to necessitate the purchase of mitigation analysis can be tested under the APA if the regulation.’’ 5 U.S.C. 601. Small credits or through the actions of States the ‘‘agency decides to rely on a cost- entities subject to this final rule are and Tribes that choose to regulate their benefit analysis as part of its largely those entities whose activities wetlands under State or tribal law. For rulemaking’’). are directly covered by the CWA a more detailed discussion see the RFA sections 402, 404, and 311 programs. section of the Economic Analysis for the B. Executive Order 13771: Reducing The final rule is expected to result in final rule. Regulation and Controlling Regulatory fewer entities subject to these programs, The agencies certify that this action Costs and a reduced regulatory burden for will not have a significant economic many of the entities that will still be Pursuant to Executive Order 13771 impact on a substantial number of small subject to these programs. As a result, (82 FR 9339, February 3, 2017), this entities under the RFA. In making this small entities subject to these regulatory final rule is a deregulatory action. determination, the impact of concern is programs are unlikely to suffer adverse Details on the estimated cost savings of any significant adverse economic impacts as a result of regulatory this rule can be found in the Economic impact on small entities. An agency may Analysis in the docket for this rule. compliance. As addressed in the Economic certify that a rule will not have a C. Paperwork Reduction Act Analysis for the final rule, narrowing significant economic impact on a This action does not impose any new the scope of CWA regulatory substantial number of small entities if information collection burden under the jurisdiction over waters may result in a the rule relieves regulatory burden, has Paperwork Reduction Act, 44 U.S.C. reduction in the ecosystem services no net burden, or otherwise has a 3501 et seq. OMB has previously provided by some waters, and as a positive economic effect on the small approved the information collection result, some entities may be adversely entities subject to the rule. As activities contained in the existing impacted. Some business sectors that documented in the Economic Analysis regulations and has assigned OMB depend on habitat, such as those for the final rule, the agencies do not control numbers 2050–0021 and 2050– catering to hunters or anglers, or that expect the cost of the rule to result in 0135 for the CWA section 311 program require water treatment to meet adverse impact to a significant number and 2040–0004 for the CWA section 402 production needs, could experience a of small entities, since the rule is program. For the CWA section 404 greater impact relative to other sectors. expected to result in net cost savings for program, the current OMB approval Potential changes in ecosystem services all entities affected by this rule. The number for information requirements is are likely to be small, infrequent, and agencies have therefore concluded that maintained by the Corps (OMB approval dispersed over wide geographic areas, this action will relieve regulatory number 0710–0003). However, there are thereby limiting the significance of burden to small entities.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22336 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

E. Unfunded Mandates Reform Act Local Government Advisory Committee impose any new costs or other (LGAC). requirements on states, preempt state This final rule does not contain any The LGAC met 10 times during this law, or limit states’ policy discretion; unfunded mandate as described in the period to address the charge given to its rather, it provides more discretion for Unfunded Mandates Reform Act of 1995 members by the EPA Administrator on states as to how best to manage waters (UMRA), 2 U.S.C. 1531–1538, and does a revised rule and completed a report under their sole jurisdiction. Executive not significantly or uniquely affect small addressing the questions outlined in Order paras. (6)(b) and (6)(c). As governments. The definition of ‘‘waters their charge. The July 14, 2017, final discussed in the earlier sections of the of the United States’’ applies broadly to report can be obtained here: https:// notice, this final rule establishes a clear CWA programs. The final action www.epa.gov/sites/production/files/ boundary between waters subject to imposes no enforceable duty on any 2017-07/documents/lgac-final- federal regulatory requirements under State, local, or tribal governments or the wotusreport-july2017.pdf and in the the CWA and those that States may private sector, and does not contain docket as attachment to EPA Docket Id solely manage under their independent regulatory requirements that No. EPA–HQ–OW–2018–0149–0088, authorities. This action will not have significantly or uniquely affect small available at https:// substantial direct effects on the States, governments. www.regulations.gov/document?D=EPA- on the relationship between the national F. Executive Order 13132: Federalism HQ-OW-2018-0149-0088. government and the States, or on the The agencies then conducted distribution of power and Consulting with State and local additional outreach to States prior to responsibilities among the various government officials, or their proposing the rule to ensure that the levels of government. The rule preserves representative national organizations, is agencies could hear the perspectives on State authority to choose whether or not an important step in the process prior to how the agencies might revise the to regulate waters that are not waters of proposing regulations that may have definition of ‘‘waters of the United the United States under the CWA. The implications for State and local States’’ from State co-regulators. The agencies believe that the requirements governments under the terms of agencies held two additional webinars, of the Executive Order have been Executive Order 13132 (64 FR 43255, the first for Tribes, States, and local satisfied in any event. governments on December 12, 2017; and August 10, 1999). State and local G. Executive Order 13175: Consultation governments were engaged in a 60-day one for States on February 20, 2018. In addition, one in-person meeting to seek and Coordination With Indian Tribal Federalism consultation at the outset of Governments rule development starting on April 19, technical input on the development of 2017. All letters received by the the proposed rule was held with a group Executive Order 13175, entitled agencies during Federalism consultation of nine states (Arizona, Arkansas, ‘‘Consultation and Coordination with may be found on in the docket at EPA Florida, Iowa, Maryland, Minnesota, Indian Tribal Governments’’ (65 FR Docket Id No. EPA–HQ–OW–2018– Oregon, Pennsylvania, and Wyoming) 67249, Nov. 9, 2000), requires the 0149–0088, available at https:// on March 8 and 9, 2018. agencies to develop an accountable These meetings and the letters www.regulations.gov/document?D=EPA- process to ensure ‘‘meaningful and provided by representatives provided a HQ-OW-2018-0149-0088. timely input by tribal officials in the wide and diverse range of interests, development of regulatory policies that The agencies held nineteen positions, comments, and have tribal implications.’’ This action Federalism meetings between April 19 recommendations to the agencies. The has tribal implications. However, it will and June 16, 2017. Seventeen agencies have prepared a report neither impose substantial direct intergovernmental associations, summarizing their consultation and compliance costs on federally including nine of the ten organizations additional outreach to State and local recognized tribal governments, nor identified in EPA’s 2008 E.O. 13132 governments and the results of this preempt tribal law. Guidance, attended the initial outreach. A copy of the final report is During tribal consultation and Federalism consultation meeting, as available in the docket (Docket Id. No. engagement efforts and in tribal well as several associations representing EPA–HQ–OW–2018–0149) for this final comments on the proposed rule, many State and local governments. rule. Tribes expressed concern that the Organizations in attendance included: Following publication of the proposed proposed rule would or could adversely The National Governors Association, the rule, the agencies held four additional impact tribal waters. Two tribes National League of Cities, the National in-person meetings with State supported the proposed rule and noted Association of Counties, the U.S. representatives to answer clarifying that it would increase the tribes’ ability Conference of Mayors, the Council of questions about the proposal, and to to manage and regulate their own State Governments, the National discuss implementation considerations Reservation lands. The agencies Conference of State Legislatures, the and State interest in working with the acknowledge that because they County Executives of America, the agencies to develop geospatial datasets generally implement CWA programs on National Association of Towns and of water resources as articulated in the tribal lands, a reduced scope of CWA Townships, the Environmental Council preamble to the proposed rule. jurisdiction will affect Tribes differently of the States, the Western Governors Under the technical requirements of than it will affect States. Currently, of Association, the National Association of Executive Order 13132, agencies must the Tribes that are eligible, most have Clean Water Agencies, the Association conduct a federalism consultation as not received treatment in a manner of Clean Water Administrators, the outlined in the Executive Order for similar to a state (TAS) status to National Association of State regulations that (1) have federalism administer CWA regulatory programs. Departments of Agriculture, the implications, that impose substantial While some Tribes have established Association of State Wetlands Managers, direct compliance costs on state and tribal water programs under tribal law the Association of State Floodplain local governments, and that are not or have the authority to establish tribal Managers, the National Water Resources required by statute; or (2) that have programs under tribal law, many Tribes Association, the State/Local Legal federalism implications and that may lack the capacity to create a tribal Center, and several members of EPA’s preempt state law. This rule does not water program under tribal law, to

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22337

administer a program, or to expand meetings with eight Tribes post- income populations, and/or indigenous programs that currently exist. Other proposal. The agencies also continued peoples, as specified in Executive Order Tribes may rely on the Federal engaging with Tribes and tribal 12898. government for enforcement of water organizations via listening sessions at L. Congressional Review Act quality violations. Nonetheless, the rule regional and national tribal meetings. In preserves tribal authority to choose total, the agencies met with 21 This action is subject to the whether or not to regulate waters that individual Tribes requesting Congressional Review Act, and the are not covered under the CWA. Any consultation, holding leader-to-leader agencies will submit a rule report to decision by the Tribes to protect beyond level consultation meetings with 11 each House of the Congress and to the the limits of the CWA is not compelled individual tribes and staff-level Comptroller General of the United by the statute or by this final rule. meetings with 13 individual tribes (the States. OMB has concluded that this The EPA consulted with tribal agencies met with some tribes more action is a ‘‘major rule’’ as defined by officials under the EPA Policy on than once). The agencies have prepared 5 U.S.C. 804(2). Consultation and Coordination with a report summarizing the consultation List of Subjects Indian Tribes early in the process of and further engagement with tribal developing this action to permit them to nations. This report, Summary Report of 33 CFR Part 328 have meaningful and timely input into Tribal Consultation and Engagement for Navigation (water), Water pollution its development. The Department of the the Navigable Waters Protection Rule: control, Waterways. Army participated in the consultation Definition of ‘‘Waters of the United process and further engagement with States’’ (Docket Id. No. EPA–HQ–OW– 40 CFR Part 110 Tribes. All letters received by the 2018–0149), is available in the docket agencies during tribal consultation may Oil pollution, Reporting and for this final rule. recordkeeping requirements. be found in the docket for this action, As required by section 7(a), the EPA’s Docket Id. No. EPA–HQ–OW–2018– Tribal Consultation Official has certified 40 CFR Part 112 0149. that the requirements of the executive Oil pollution, Penalties, Reporting The EPA initiated a tribal order have been met in a meaningful and recordkeeping requirements. consultation and coordination process and timely manner. A copy of the before proposing this rule by sending a certification is included in the docket 40 CFR Part 116 ‘‘Notification of Consultation and for this action. Coordination’’ letter on April 20, 2017, Hazardous substances, Reporting and to all of the 567 Tribes federally H. Executive Order 13045: Protection of recordkeeping requirements, Water recognized at that time. The letter Children From Environmental Health pollution control. and Safety Risks invited tribal leaders and designated 40 CFR Part 117 consultation representatives to This action is not subject to Executive participate in the tribal consultation and Order 13045 (62 FR 19885, April 23, Hazardous substances, Penalties, coordination process. The agencies held 1997) because the environmental health Reporting and recordkeeping two identical webinars concerning this or safety risks addressed by this action requirements, Water pollution control. matter for tribal representatives on April do not present a disproportionate risk to 40 CFR Part 120 27 and May 18, 2017. Tribes and tribal children. organizations sent 44 pre-proposal Environmental protection, Water comment letters to the agencies as part I. Executive Order 13211: Actions pollution control, Waterways. Concerning Regulations That of the consultation process. Of those 40 CFR Part 122 Tribes requesting consultation, the Significantly Affect Energy Supply, agencies met with nine Tribes at a staff- Distribution, or Use Administrative practice and level and with three Tribes at a leader- This action is not a ‘‘significant procedure, Confidential business to-leader level pre-proposal. The energy action’’ as defined in Executive information, Environmental protection, agencies continued engagement with Order 13211 (66 FR 28355, May 22, Hazardous substances, Reporting and Tribes after the end of the formal 2001) because it is not likely to have a recordkeeping requirements, Water consultation, including at national significant adverse effect on the supply, pollution control. update webinars on December 12, 2017, distribution, or use of energy. 40 CFR Part 230 and February 20, 2018, and an in-person tribal co-regulators workshop on March J. National Technology Transfer and Water pollution control. Advancement Act 6 and 7, 2018. 40 CFR Part 232 Following the publication of the This action is not subject to the proposed rule, the agencies held four in- National Technology Transfer and Intergovernmental relations, Water person meetings with tribal Advancement Act of 1995 because the pollution control. representatives to answer clarifying rule does not involve technical 40 CFR Part 300 questions about the proposal, and to standards. discuss implementation considerations Air pollution control, Carbon and tribal interest in working with the K. Executive Order 12898: Federal monoxide, Chemicals, Environmental agencies to develop geospatial datasets Actions To Address Environmental protection, Greenhouse gases, of water resources as articulated in the Justice in Minority Populations and Hazardous substances, Hazardous preamble to the proposed rule. In Low-Income Populations waste, Intergovernmental relations, addition, the agencies continued to meet This action is not subject to Executive Lead, Natural resources, Occupational with individual Tribes requesting Order 12898 (59 FR 7629, February 11, safety and health, Oil pollution, Ozone, consultation or engagement following 1994) because there is no significant Penalties, Reporting and recordkeeping publication of the proposed rule, evidence of disproportionately high and requirements, Sulfur Dioxide, holding staff-level meetings with four adverse human health or environmental , Volatile organic compounds, Tribes and leader-to-leader level effects on minority populations, low- Water pollution control, Water supply.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22338 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

40 CFR Part 302 (4) Diffuse stormwater run-off and (2), or (3) of this section in a typical Air pollution control, Chemicals, directional sheet flow over upland; year, such as through a culvert, flood or Hazardous substances, Hazardous (5) Ditches that are not waters tide gate, pump, or similar artificial waste, Intergovernmental relations, identified in paragraph (a)(1) or (2) of feature. An adjacent wetland is Natural resources, Reporting and this section, and those portions of jurisdictional in its entirety when a road recordkeeping requirements, Superfund, ditches constructed in waters identified or similar artificial structure divides the Water pollution control, Water supply. in paragraph (a)(4) of this section that wetland, as long as the structure allows do not satisfy the conditions of for a direct hydrologic surface 40 CFR Part 401 paragraph (c)(1) of this section; connection through or over that Waste treatment and disposal, Water (6) Prior converted cropland; structure in a typical year. pollution control. (7) Artificially irrigated areas, (2) Ditch. The term ditch means a including fields flooded for agricultural constructed or excavated channel used Dated: January 23, 2020. production, that would revert to upland to convey water. Andrew R. Wheeler, should application of irrigation water to (3) Ephemeral. The term ephemeral Administrator, Environmental Protection that area cease; means surface water flowing or pooling Agency. (8) Artificial lakes and ponds, only in direct response to precipitation Dated: January 23, 2020. including water storage reservoirs and (e.g., rain or snow fall). R.D. James, farm, irrigation, stock watering, and log (4) High tide line. The term high tide Assistant Secretary of the Army (Civil Works), cleaning ponds, constructed or line means the line of intersection of the Department of the Army. excavated in upland or in non- land with the water’s surface at the jurisdictional waters, so long as those maximum height reached by a rising Title 33—Navigation and Navigable artificial lakes and ponds are not tide. The high tide line may be Waters impoundments of jurisdictional waters determined, in the absence of actual For the reasons set forth in the that meet the conditions of paragraph data, by a line of oil or scum along shore preamble, title 33, chapter II of the Code (c)(6) of this section; objects, a more or less continuous of Federal Regulations is amended as (9) Water-filled depressions deposit of fine shell or debris on the follows: constructed or excavated in upland or in foreshore or berm, other physical non-jurisdictional waters incidental to markings or characteristics, vegetation PART 328—DEFINITION OF WATERS mining or construction activity, and pits lines, tidal gages, or other suitable OF THE UNITED STATES excavated in upland or in non- means that delineate the general height reached by a rising tide. The line ■ 1. Authority: The authority citation jurisdictional waters for the purpose of obtaining fill, sand, or gravel; encompasses spring high tides and other for part 328 is revised read as follows: high tides that occur with periodic 33 U.S.C. 1251 et seq. (10) Stormwater control features constructed or excavated in upland or in frequency but does not include storm ■ 2. Section 328.3 is amended by non-jurisdictional waters to convey, surges in which there is a departure revising paragraphs (a) through (c) and treat, infiltrate, or store stormwater run- from the normal or predicted reach of removing paragraphs (d) through (f) to off; the tide due to the piling up of water read as follows: (11) Groundwater recharge, water against a coast by strong winds, such as § 328.3 Definitions. reuse, and wastewater recycling those accompanying a hurricane or structures, including detention, other intense storm. * * * * * (5) Intermittent. The term intermittent (a) Jurisdictional waters. For purposes retention, and infiltration basins and ponds, constructed or excavated in means surface water flowing of the Clean Water Act, 33 U.S.C. 1251 continuously during certain times of the et seq. and its implementing regulations, upland or in non-jurisdictional waters; and year and more than in direct response subject to the exclusions in paragraph to precipitation (e.g., seasonally when (b) of this section, the term ‘‘waters of (12) Waste treatment systems. (c) Definitions. In this section, the the groundwater table is elevated or the United States’’ means: when snowpack melts). (1) The territorial seas, and waters following definitions apply: (1) Adjacent wetlands. The term (6) Lakes and ponds, and which are currently used, or were used impoundments of jurisdictional waters. in the past, or may be susceptible to use adjacent wetlands means wetlands that: (i) Abut, meaning to touch at least at The term lakes and ponds, and in interstate or foreign commerce, impoundments of jurisdictional waters including waters which are subject to one point or side of, a water identified in paragraph (a)(1), (2), or (3) of this means standing bodies of open water the ebb and flow of the tide; that contribute surface water flow to a (2) Tributaries; section; (3) Lakes and ponds, and (ii) Are inundated by flooding from a water identified in paragraph (a)(1) of impoundments of jurisdictional waters; water identified in paragraph (a)(1), (2), this section in a typical year either and or (3) of this section in a typical year; directly or through one or more waters (4) Adjacent wetlands. (iii) Are physically separated from a identified in paragraph (a)(2), (3), or (4) (b) Non-jurisdictional waters. The water identified in paragraph (a)(1), (2), of this section. A lake, pond, or following are not ‘‘waters of the United or (3) of this section only by a natural impoundment of a jurisdictional water States’’: berm, bank, dune, or similar natural does not lose its jurisdictional status if (1) Waters or water features that are feature; or it contributes surface water flow to a not identified in paragraph (a)(1), (2), (iv) Are physically separated from a downstream jurisdictional water in a (3), or (4) of this section; water identified in paragraph (a)(1), (2), typical year through a channelized non- (2) Groundwater, including or (3) of this section only by an artificial jurisdictional surface water feature, groundwater drained through dike, barrier, or similar artificial through a culvert, dike, spillway, or subsurface drainage systems; structure so long as that structure allows similar artificial feature, or through a (3) Ephemeral features, including for a direct hydrologic surface debris pile, boulder field, or similar ephemeral streams, swales, gullies, rills, connection between the wetlands and natural feature. A lake or pond, or and pools; the water identified in paragraph (a)(1), impoundment of a jurisdictional water

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22339

is also jurisdictional if it is inundated by waters identified in paragraph (a)(2), (3), PART 110—DISCHARGE OF OIL flooding from a water identified in or (4) of this section. A tributary must paragraph (a)(1), (2), or (3) of this be perennial or intermittent in a typical ■ 3. The authority citation for part 110 section in a typical year. year. The alteration or relocation of a is revised to read as follows: (7) Ordinary high water mark. The tributary does not modify its Authority: 33 U.S.C. 1251 et seq., 33 term ordinary high water mark means jurisdictional status as long as it U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O. that line on the shore established by the continues to satisfy the flow conditions 11735, 38 FR 21243, 3 CFR parts 1971–1975 fluctuations of water and indicated by of this definition. A tributary does not Comp., p. 793. physical characteristics such as a clear, lose its jurisdictional status if it ■ 4. Section 110.1 is amended by natural line impressed on the bank, contributes surface water flow to a shelving, changes in the character of revising the definition of ‘‘Navigable downstream jurisdictional water in a soil, destruction of terrestrial vegetation, waters’’ and removing the definition of typical year through a channelized non- the presence of litter and debris, or ‘‘Wetlands’’ to read as follows: other appropriate means that consider jurisdictional surface water feature, through a subterranean river, through a § 110.1 Definitions. the characteristics of the surrounding * * * * * areas. culvert, dam, tunnel, or similar artificial (8) Perennial. The term perennial feature, or through a debris pile, boulder Navigable waters means waters of the means surface water flowing field, or similar natural feature. The United States, including the territorial continuously year-round. term tributary includes a ditch that seas, as defined in § 120.2 of this (9) Prior converted cropland. The either relocates a tributary, is chapter. term prior converted cropland means constructed in a tributary, or is * * * * * any area that, prior to December 23, constructed in an adjacent wetland as 1985, was drained or otherwise long as the ditch satisfies the flow PART 112—OIL POLLUTION manipulated for the purpose, or having conditions of this definition. PREVENTION the effect, of making production of an (13) Typical year. The term typical ■ 5. The authority citation for part 112 agricultural product possible. EPA and year means when precipitation and the Corps will recognize designations of is revised to read as follows: other climatic variables are within the prior converted cropland made by the Authority: 33 U.S.C. 1251 et seq. normal periodic range (e.g., seasonally, Secretary of Agriculture. An area is no annually) for the geographic area of the ■ 6. Section 112.2 is amended by longer considered prior converted revising the definition of ‘‘Navigable cropland for purposes of the Clean applicable aquatic resource based on a rolling thirty-year period. waters’’ and removing the definition of Water Act when the area is abandoned ‘‘Wetlands’’ to read as follows: and has reverted to wetlands, as defined (14) Upland. The term upland means in paragraph (c)(16) of this section. any land area that under normal § 112.2 Definitions. Abandonment occurs when prior circumstances does not satisfy all three * * * * * converted cropland is not used for, or in wetland factors (i.e., hydrology, Navigable waters means waters of the support of, agricultural purposes at least hydrophytic vegetation, hydric soils) United States, including the territorial once in the immediately preceding five identified in paragraph (c)(16) of this seas, as defined in § 120.2 of this years. For the purposes of the Clean section, and does not lie below the chapter. Water Act, the EPA Administrator shall ordinary high water mark or the high * * * * * have the final authority to determine tide line of a jurisdictional water. whether prior converted cropland has (15) Waste treatment system. The term PART 116—DESIGNATION OF been abandoned. waste treatment system includes all HAZARDOUS SUBSTANCES (10) Snowpack. The term snowpack means layers of snow that accumulate components, including lagoons and treatment ponds (such as settling or ■ 7. The authority citation for part 116 over extended periods of time in certain is revised to read as follows: geographic regions or at high elevation cooling ponds), designed to either (e.g., in northern climes or mountainous convey or retain, concentrate, settle, Authority: 33 U.S.C. 1251 et seq. regions). reduce, or remove pollutants, either ■ 8. Section 116.3 is amended by (11) Tidal waters and waters subject actively or passively, from wastewater revising the definition of ‘‘Navigable to the ebb and flow of the tide. The prior to discharge (or eliminating any waters’’ to read as follows: terms tidal waters and waters subject to such discharge). the ebb and flow of the tide mean those (16) Wetlands. The term wetlands § 116.3 Definitions. waters that rise and fall in a predictable means areas that are inundated or * * * * * and measurable rhythm or cycle due to saturated by surface or ground water at Navigable waters means ‘‘waters of the gravitational pulls of the moon and a frequency and duration sufficient to the United States,’’ including the sun. Tidal waters and waters subject to support, and that under normal territorial seas, as defined in § 120.2 of the ebb and flow of the tide end where circumstances do support, a prevalence this chapter. the rise and fall of the water surface can of vegetation typically adapted for life * * * * * no longer be practically measured in a in saturated soil conditions. Wetlands predictable rhythm due to masking by generally include swamps, marshes, PART 117—DETERMINATION OF hydrologic, wind, or other effects. bogs, and similar areas. REPORTABLE QUANTITIES FOR (12) Tributary. The term tributary HAZARDOUS SUBSTANCES means a river, stream, or similar * * * * * naturally occurring surface water Title 40—Protection of Environment ■ 9. The authority citation for part 117 channel that contributes surface water is revised to read as follows: flow to a water identified in paragraph For reasons set out in the preamble, Authority: 33 U.S.C. 1251 et seq., and (a)(1) of this section in a typical year title 40, chapter I of the Code of Federal Executive Order 11735, superseded by either directly or through one or more Regulations is amended as follows: Executive Order 12777, 56 FR 54757.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22340 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

■ 10. Section 117.1 is amended by ditches constructed in waters identified adjacent wetland is jurisdictional in its revising paragraph (i) to read as follows: in paragraph (1)(iv) of this definition entirety when a road or similar artificial that do not satisfy the conditions of structure divides the wetland, as long as § 117.1 Definitions. paragraph (3)(i) of this definition; the structure allows for a direct * * * * * (vi) Prior converted cropland; hydrologic surface connection through (i) Navigable waters means ‘‘waters of (vii) Artificially irrigated areas, or over that structure in a typical year. the United States, including the including fields flooded for agricultural (ii) Ditch. The term ditch means a territorial seas,’’ as defined in § 120.2 of production, that would revert to upland constructed or excavated channel used this chapter. should application of irrigation water to to convey water. * * * * * that area cease; (iii) Ephemeral. The term ephemeral ■ 11. Add part 120 to read as follows: (viii) Artificial lakes and ponds, means surface water flowing or pooling including water storage reservoirs and only in direct response to precipitation PART 120—DEFINITION OF WATERS farm, irrigation, stock watering, and log (e.g., rain or snow fall). OF THE UNITED STATES cleaning ponds, constructed or (iv) High tide line. The term high tide excavated in upland or in non- line means the line of intersection of the Sec. jurisdictional waters, so long as those land with the water’s surface at the 120.1 Purpose and scope. artificial lakes and ponds are not maximum height reached by a rising 120.2 Definitions. impoundments of jurisdictional waters tide. The high tide line may be Authority: 33 U.S.C. 1251 et seq. that meet the conditions of paragraph determined, in the absence of actual (3)(vi) of this definition; data, by a line of oil or scum along shore § 120.1 Purpose and scope. (ix) Water-filled depressions objects, a more or less continuous Part 120 contains the definition of constructed or excavated in upland or in deposit of fine shell or debris on the ‘‘navigable waters’’ and ‘‘waters of the non-jurisdictional waters incidental to foreshore or berm, other physical United States’’ for purposes of the Clean mining or construction activity, and pits markings or characteristics, vegetation Water Act, 33 U.S.C. 1251 et seq. and its excavated in upland or in non- lines, tidal gages, or other suitable implementing regulations. jurisdictional waters for the purpose of means that delineate the general height reached by a rising tide. The line § 120.2 Definitions. obtaining fill, sand, or gravel; (x) Stormwater control features encompasses spring high tides and other For the purposes of this part, the constructed or excavated in upland or in high tides that occur with periodic following terms shall have the meanings non-jurisdictional waters to convey, frequency but does not include storm indicated: treat, infiltrate, or store stormwater run- surges in which there is a departure Navigable waters means waters of the off; from the normal or predicted reach of United States, including the territorial (xi) Groundwater recharge, water the tide due to the piling up of water seas. reuse, and wastewater recycling against a coast by strong winds, such as Waters of the United States means: structures, including detention, those accompanying a hurricane or (1) Jurisdictional waters. For purposes retention, and infiltration basins and other intense storm. of the Clean Water Act, 33 U.S.C. 1251 ponds, constructed or excavated in (v) Intermittent. The term intermittent et seq. and its implementing regulations, upland or in non-jurisdictional waters; means surface water flowing subject to the exclusions in paragraph and continuously during certain times of the (2) of this section, the term ‘‘waters of (xii) Waste treatment systems. year and more than in direct response the United States’’ means: (3) Definitions. In this section, the to precipitation (e.g., seasonally when (i) The territorial seas, and waters following definitions apply: the groundwater table is elevated or which are currently used, or were used (i) Adjacent wetlands. The term when snowpack melts). in the past, or may be susceptible to use adjacent wetlands means wetlands that: (vi) Lakes and ponds, and in interstate or foreign commerce, (A) Abut, meaning to touch at least at impoundments of jurisdictional waters. including waters which are subject to one point or side of, a water identified The term lakes and ponds, and the ebb and flow of the tide; in paragraph (1)(i), (ii), or (iii) of this impoundments of jurisdictional waters (ii) Tributaries; definition; means standing bodies of open water (iii) Lakes and ponds, and (B) Are inundated by flooding from a that contribute surface water flow to a impoundments of jurisdictional waters; water identified in paragraph (1)(i), (ii), water identified in paragraph (1)(i) of and or (iii) of this definition in a typical this definition in a typical year either (iv) Adjacent wetlands. year; directly or through one or more waters (2) Non-jurisdictional waters. The (C) Are physically separated from a identified in paragraph (1)(ii), (iii), or following are not ‘‘waters of the United water identified in paragraph (1)(i), (ii), (iv) of this definition. A lake, pond, or States’’: or (iii) of this definition only by a impoundment of a jurisdictional water (i) Waters or water features that are natural berm, bank, dune, or similar does not lose its jurisdictional status if not identified in paragraph (1)(i), (ii), natural feature; or it contributes surface water flow to a (iii), or (iv) of this definition; (D) Are physically separated from a downstream jurisdictional water in a (ii) Groundwater, including water identified in paragraph (1)(i), (ii), typical year through a channelized non- groundwater drained through or (iii) of this definition only by an jurisdictional surface water feature, subsurface drainage systems; artificial dike, barrier, or similar through a culvert, dike, spillway, or (iii) Ephemeral features, including artificial structure so long as that similar artificial feature, or through a ephemeral streams, swales, gullies, rills, structure allows for a direct hydrologic debris pile, boulder field, or similar and pools; surface connection between the natural feature. A lake or pond, or (iv) Diffuse stormwater run-off and wetlands and the water identified in impoundment of a jurisdictional water directional sheet flow over upland; paragraph (1)(i), (ii), or (iii) of this is also jurisdictional if it is inundated by (v) Ditches that are not waters definition in a typical year, such as flooding from a water identified in identified in paragraph (1)(i) or (ii) of through a culvert, flood or tide gate, paragraph (1)(i), (ii), or (iii) of this this definition, and those portions of pump, or similar artificial feature. An definition in a typical year.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22341

(vii) Ordinary high water mark. The of a tributary does not modify its the United States’’ published July 21, term ordinary high water mark means jurisdictional status as long as it 1980 (45 FR 48620). that line on the shore established by the continues to satisfy the flow conditions ■ b. Revising the definition of ‘‘Waters fluctuations of water and indicated by of this definition. A tributary does not of the United States’’. physical characteristics such as a clear, lose its jurisdictional status if it ■ c. Removing the definition of natural line impressed on the bank, contributes surface water flow to a ‘‘Wetlands’’. shelving, changes in the character of downstream jurisdictional water in a The revision reads as follows: soil, destruction of terrestrial vegetation, typical year through a channelized non- § 122.2 Definitions. the presence of litter and debris, or jurisdictional surface water feature, other appropriate means that consider * * * * * through a subterranean river, through a Waters of the United States or waters the characteristics of the surrounding culvert, dam, tunnel, or similar artificial of the U.S. means the term as it is areas. feature, or through a debris pile, boulder defined in § 120.2 of this chapter. (viii) Perennial. The term perennial field, or similar natural feature. The means surface water flowing term tributary includes a ditch that * * * * * continuously year-round. either relocates a tributary, is (ix) Prior converted cropland. The PART 230—SECTION 404(b)(1) constructed in a tributary, or is GUIDELINES FOR SPECIFICATION OF term prior converted cropland means constructed in an adjacent wetland as any area that, prior to December 23, DISPOSAL SITES FOR DREDGED OR long as the ditch satisfies the flow FILL MATERIAL 1985, was drained or otherwise conditions of this definition. manipulated for the purpose, or having (xiii) Typical year. The term typical ■ 14. The authority citation for part 230 the effect, of making production of an year means when precipitation and is revised to read as follows: agricultural product possible. EPA and other climatic variables are within the Authority: 33 U.S.C. 1251 et seq. the Corps will recognize designations of normal periodic range (e.g., seasonally, prior converted cropland made by the ■ 15. Section 230.3 is amended by: annually) for the geographic area of the ■ Secretary of Agriculture. An area is no applicable aquatic resource based on a a. Removing paragraph (b) and reserved paragraphs (f), (g), (j), and (l); longer considered prior converted rolling thirty-year period. ■ b. Redesignating paragraphs (c) cropland for purposes of the Clean (xiv) Upland. The term upland means through (e) as paragraphs (b) through Water Act when the area is abandoned any land area that under normal and has reverted to wetlands, as defined (d); circumstances does not satisfy all three ■ c. Redesignating paragraphs (h) and (i) in paragraph (3)(xvi) of this definition. wetland factors (i.e., hydrology, Abandonment occurs when prior as paragraphs (e) and (f) hydrophytic vegetation, hydric soils) ■ d. Redesignating paragraph (k) as converted cropland is not used for, or in identified in paragraph (3)(xvi) of this support of, agricultural purposes at least paragraph (g); definition, and does not lie below the ■ once in the immediately preceding five e. Redesignating paragraphs (m) ordinary high water mark or the high years. For the purposes of the Clean through (q) as paragraphs (h) through (l); tide line of a jurisdictional water. ■ Water Act, the EPA Administrator shall f. Redesignating paragraph (q-1) as (xv) Waste treatment system. The term have the final authority to determine paragraph (m); waste treatment system includes all ■ whether prior converted cropland has g. Redesignating paragraph (r) as components, including lagoons and paragraph (n); been abandoned. ■ (x) Snowpack. The term snowpack treatment ponds (such as settling or h. Redesignating paragraph (s) as means layers of snow that accumulate cooling ponds), designed to either paragraphs (o); ■ i. Revising newly designated over extended periods of time in certain convey or retain, concentrate, settle, paragraph (o); and geographic regions or at high elevation reduce, or remove pollutants, either actively or passively, from wastewater ■ j. Removing paragraph (t). (e.g., in northern climes or mountainous The revision reads as follows: regions). prior to discharge (or eliminating any (xi) Tidal waters and waters subject to such discharge). § 230.3 Definitions. (xvi) Wetlands. The term wetlands the ebb and flow of the tide. The terms * * * * * tidal waters and waters subject to the means areas that are inundated or (o) Waters of the United States means ebb and flow of the tide mean those saturated by surface or ground water at the term as it is defined in § 120.2 of this waters that rise and fall in a predictable a frequency and duration sufficient to chapter. and measurable rhythm or cycle due to support, and that under normal the gravitational pulls of the moon and circumstances do support, a prevalence PART 232—404 PROGRAMS sun. Tidal waters and waters subject to of vegetation typically adapted for life DEFINITIONS; EXEMPT ACTIVITIES the ebb and flow of the tide end where in saturated soil conditions. Wetlands NOT REQUIRING 404 PERMITS the rise and fall of the water surface can generally include swamps, marshes, ■ no longer be practically measured in a bogs, and similar areas. 16. The authority citation for part 232 predictable rhythm due to masking by is revised to read as follows: PART 122—EPA ADMINISTERED hydrologic, wind, or other effects. Authority: 33 U.S.C. 1251 et seq. PERMIT PROGRAMS: THE NATIONAL (xii) Tributary. The term tributary ■ 17. Section 232.2 is amended by means a river, stream, or similar POLLUTANT DISCHARGE ELIMINATION SYSTEM revising the definition of ‘‘Waters of the naturally occurring surface water United States’’ and removing the channel that contributes surface water ■ 12. The authority citation for part 122 definition of ‘‘Wetlands’’ to read as flow to a water identified in paragraph continues to read as follows: follows: (1)(i) of this definition in a typical year either directly or through one or more Authority: The Clean Water Act, 33 U.S.C. § 232.2 Definitions. 1251 et seq. waters identified in paragraph (1)(ii), * * * * * (iii), or (iv) of this definition. A tributary ■ 13. Section 122.2 is amended by: Waters of the United States means the must be perennial or intermittent in a ■ a. Lifting the suspension of the last term as it is defined in § 120.2 of this typical year. The alteration or relocation sentence of the definition of ‘‘Waters of chapter.

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22342 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations

PART 300—NATIONAL OIL AND Appendix E to Part 300—Oil Spill Navigable waters means the waters of HAZARDOUS SUBSTANCES Response the United States, including the POLLUTION CONTINGENCY PLAN * * * * * territorial seas, as defined in § 120.2 of 1.5 Definitions. *** this chapter. ■ 18. The authority citation for part 300 Navigable waters means the waters of the * * * * * is revised to read as follows: United States, including the territorial seas, Authority: 33 U.S.C. 1251 et seq. as defined in § 120.2 of this chapter. PART 401— GENERAL PROVISIONS * * * * * ■ 19. Section 300.5 is amended by ■ 23. The authority citation for part 401 revising the definition of ‘‘Navigable PART 302— DESIGNATION, is revised to read as follows: waters’’ to read as follows: REPORTABLE QUANTITIES, AND Authority: 33 U.S.C. 1251 et seq. § 300.5 Definitions. NOTIFICATION ■ 24. Section 401.11 is amended by * * * * * ■ revising paragraph (l) to read as follows: Navigable waters means the waters of 21. The authority citation for part 302 the United States, including the is revised to read as follows: § 401.11 General definitions. territorial seas, as defined in § 120.2 of Authority: 33 U.S.C. 1251 et seq. * * * * * this chapter. (l) Navigable waters means ‘‘waters of ■ 22. Section 302.3 is amended by the United States, including the * * * * * revising the definition of ‘‘Navigable territorial seas,’’ as defined in § 120.2 of ■ 20. In appendix E to part 300, section waters’’ to read as follows: 1.5 Definitions is amended by revising this chapter. the definition of ‘‘Navigable waters’’ to § 302.3 Definitions. [FR Doc. 2020–02500 Filed 4–20–20; 8:45 am] read as follows: * * * * * BILLING CODE 6560–50–P

VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00094 Fmt 4701 Sfmt 9990 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2