Throughout the pendency of the Supreme Court litigation (and for a short time thereafter), the Sixth Circuit's nationwide stay remained in effect. In this final rule, the agencies retain “tributaries” as a category of jurisdictional waters subject to CWA jurisdiction. The agencies will consider the comments and concerns raised and coordinate closely with States, Tribes, and other Federal agencies in future efforts to develop geospatial datasets. These websites will incorporate approved jurisdictional determinations made under the revised definition of “waters of the United States” that the agencies are finalizing in this notice. 1251 et seq. Finally, the agencies believe that this final rule will be clearer than the pre-existing regulatory regime restored by the regulatory text of the 2019 Rule and the prior implementation of that regime in response to adverse Supreme Court decisions and agency guidance. For Federal, State, and tribal agencies, such geospatial datasets could improve the administration of CWA programs and attainment of water quality goals. However, upon further consideration, the agencies conclude that the proposed rule's treatment of ephemeral features would have severed jurisdiction for certain relatively permanent bodies of water that are regularly “connected to” traditional navigable waters via channelized surface water flow, allowing such waters to connect and become indistinguishable when flowing. The agencies note that construction of an artificial barrier such as a berm may not sever jurisdiction under the final rule, depending on the circumstances. Commenters provided a wide range of feedback on the various aspects of the proposal, including the legal basis for the proposed rule, the agencies' proposed treatment of categories of jurisdictional waters and those features that would not be jurisdictional, the economic analysis and resource and programmatic assessment for the proposed rule, and the agencies' considerations for developing geospatial datasets of jurisdictional waters in partnership with other federal agencies, States, and Tribes. Sept. 12, 2018). Physically remote wetlands and other wetlands that do not meet the final rule's definition of “adjacent wetlands” are reserved to regulation by States and Tribes as land and water resources of those States and Tribes. at 742-43. Id. Some commenters suggested that using stream flow volumes rather than flow duration classifications for the definition of “tributary” would be easier to implement. In addition, such water-filled depressions and pits could become waters of the United States once construction or mining activities have permanently ceased and the depressions or pits meet the conditions of a paragraph (a)(1) through (4) water. These non-regulatory sections of the CWA reveal Congress' intent to restore and maintain the integrity of the nation's waters using federal assistance to support State, tribal, and local partnerships to control pollution of the nation's waters in addition to a federal regulatory prohibition on the discharge of pollutants to its navigable waters. The plurality opinion in Rapanos added that it did not consider certain wetlands to be jurisdictional under the Act, specifically, wetlands with only an “intermittent, physically remote hydrologic connection to `waters of the United States,' ” as those “do not implicate the boundary-drawing problem of Riverside Bayview.” 547 U.S. at 742. For example, the Los Angeles River is a traditional navigable water highly engineered for stormwater control, and it still meets the requirements of a paragraph (a)(1) water. at 780-81 (Kennedy, J., concurring in the judgment). 3d 497 (S.D. Due to the unique statutory provisions of the FSA, USDA wetland determinations may identify certain areas as exempt under the 1985 Act but remain subject to the requirements of the CWA. The agencies have determined that in order to be jurisdictional under this final rule, a ditch or other similar artificial feature would first need to meet the definition of “ditch” (i.e., a constructed or excavated channel used to convey water). It is important to note that a water of the United States is not considered “upland” just because it lacks water at a given time. Second, the agencies concluded that in promulgating the 2015 Rule the agencies failed to adequately consider and accord due weight to the policy of the Congress in CWA section 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . The final rule does not make any changes to the agencies' interpretation of the definition of “point source” in CWA section 502(14). 19-00564 (D. Or. The objective of this act is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. Some commenters supported the ephemeral features exclusion as being consistent with the CWA, Commerce Clause, and case law, particularly the plurality opinion in Rapanos. at 782. See Section II.E of this notice for the agencies' detailed analysis of the SWANCC and Rapanos decisions. A “tributary” is defined in the final rule as a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to a territorial sea or traditional navigable water in a typical year either directly or indirectly through other tributaries, jurisdictional lakes, ponds, or impoundments, or adjacent wetlands. Along the length of a tributary, the flow classification may fluctuate, and the points at which flow classifications change are the points at which a reach is bounded. at 504. To align the agencies' waters of the United States mapping interests with the U.S. Department of Interior's (DOI) established and ever-improving aquatic resource mapping efforts, including the NHD, NWI, and other datasets, the EPA and the Corps are engaging with the U.S. Geological Survey (USGS) and the U.S. at 1270(g)(2). Many commenters recommended that tributaries that were altered or relocated should remain tributaries. See Riverside Bayview, 474 U.S. at 135 (“Because respondent's property is part of a wetland that actually abuts on a navigable waterway, respondent was required to have a permit in this case.”) (emphasis added). The term “navigable” as used in the statute must be given some meaning, see SWANCC, 531 U.S. at 172, and regulating surface waters with no surface water connection to traditionally navigable waters stretches that meaning “beyond parody.” Rapanos, 547 U.S. at 734 (Scalia, J., plurality). Id. Two tribes supported the proposed rule and noted that it would increase the tribes' ability to manage and regulate their own Reservation lands. In light of the “more specific [tributary] regulations” finalized in this rule, the agencies are eliminating the case-specific significant nexus review through categorical treatment, as “waters of the United States,” of all tributaries with perennial or intermittent flow that contribute surface water flow to downstream navigable-in-fact waters in a typical year. Adm'r, EPA Office of Water, and Ryan Fisher, Principal Deputy Asst. The agencies received public comment that the proposal had failed to analyze potential impacts resulting from the removal of “interstate waters” as a separate category, but as noted in the preamble to the proposed rule, the agencies are not aware of any database that identifies the jurisdictional status of interstate waters based solely on the fact that they cross state lines, or any other resource that would identify these waters. In the words of Justice Scalia, “That is not so.” Id. Some commenters requested clarification on the frequency and amount of inundation required to establish adjacency. at 46. Their suspicions centered on Ron’s brother-in-law, Paul Freshour. . To carry out these policies, Congress broadly defined “pollution” to mean “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water,” 33 U.S.C. The proposed rule would have required that for such wetlands, a direct hydrologic surface connection occurs as a result of inundation from a jurisdictional water to a wetland or via perennial or intermittent flow between a wetland and a jurisdictional water in a typical year. informational resource until the Administrative Committee of the Federal 10240 (1972) (the amendment “expands the coverage of the law to intrastate, as well as interstate navigable waterways”) (emphasis added). Other commenters supported retaining “interstate waters” as a separate category and expressed concern that removing it would eliminate the EPA's role as a co-regulator in cross-boundary disputes over water quality. 84 FR 56626. The tools discussed in Section III.D of this notice to identify the presence of a potential tributary can also be helpful to establish the presence of a lake, pond, or impoundment. (xv) Waste treatment system. Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency (EPA). The agencies believe that the final rule's ditch exclusion encompasses most irrigation and drainage ditches, including most roadside and other transportation ditches, as well as most agricultural ditches. . at 134. The agencies clarify that while natural barriers may at times occur within a floodplain, the existence of a floodplain generally (and other land masses similar to a floodplain, such as a riparian area or fluvial terrace) is not sufficient to indicate a direct hydrological surface connection. The 1986 and 1988 preambles stated that these depressions were excluded “unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States.” (51 FR 41206, 41217 (November 13, 1986); 53 FR 20764-65 (June 6, 1988)). By contrast, the agencies conclude that diffuse stormwater run-off and directional sheet flow over upland (non-jurisdictional features under paragraph (b)(4)) do not provide a sufficient surface water connection to downstream jurisdictional waters. It is also described in Justice Kennedy's opinion in Rapanos as “a 430-square mile lake located between Michigan and Canada that is popular with boating and fishing and produces some 48 percent of the sport fish caught in the Great Lakes[. Also, wetlands with alternating hydroperiods that abut another water of the United States in the arid West may have hydrology present only for three months while otherwise similar wetlands in the Southeast may have hydrology present for nine months. STAT: The Readout Loud. 05-02, § 1(a), p. 1 (June 2005) (RGL 05-02). A perennial or intermittent tributary above the natural or artificial feature does not lose its jurisdictional status as long as the natural or artificial feature continues to convey surface water flow from the upstream reach to a downstream jurisdictional water in a typical year. The wetlands need not abut for a specific duration in order to be considered abutting. The agencies recognize that a change in jurisdiction resulting from this rule may change the scope of application of the CWA regulatory programs to a particular water, but the longstanding approach that the agencies have taken to implementing and enforcing those programs would remain the same. The term waste treatment system includes all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge).
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