[Federal Register Volume 86, Number 147 (Wednesday, August 4, 2021)]
[Proposed Rules]
[Pages 41911-41914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16643]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 328

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 120

[EPA-HQ-OW-2021-0328; FRL-6027.4-02-OW]


Notice of Public Meetings Regarding ``Waters of the United 
States''; Establishment of a Public Docket; Request for Recommendations

AGENCY: Department of the Army, Corps of Engineers, Department of 
Defense; and Environmental Protection Agency (EPA)

ACTION: Notice; announcement of public meeting dates and solicitation 
of pre-proposal feedback.

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SUMMARY: On June 9, 2021, the U.S. Environmental Protection Agency 
(EPA) and the Department of the Army announced their intent to revise 
the definition of ``waters of the United States.'' This process 
includes two rulemakings: A foundational rule to restore longstanding 
protections, and a second rulemaking process that builds on that 
regulatory foundation. The forthcoming foundational rule will propose 
to restore the regulations defining ``waters of the United States'' 
that were in place for decades until 2015, with updates to be 
consistent with relevant Supreme Court decisions. The agencies will 
also pursue a separate, second rulemaking process that further refines 
and builds upon that regulatory foundation. The agencies intend to 
engage with state and tribal co-regulators and the public to inform 
these two rulemakings. The agencies are committed to learning from the 
past regulatory approaches--the pre-2015 regulations and guidance, the 
2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule--
while engaging with stakeholders and crafting a refined definition of 
``waters of the United States.''
    This document includes a schedule for initial public meetings to 
hear from interested stakeholders on their perspectives on defining 
``waters of the United States'' under the Clean Water Act and how to 
implement that definition as the agencies pursue this process. The 
agencies are also accepting written recommendations from members of the 
public and are planning further opportunities for engagement. These 
opportunities will include 10 geographically focused roundtables that 
will provide for broad, transparent, regionally focused discussions 
among a full spectrum of stakeholders.

DATES: Written recommendations must be received on or before September 
3, 2021. The agencies will hold public meetings on the following dates: 
August 18, August 23, August 25, August 26, and August 31, 2021. Please 
refer to the SUPPLEMENTARY INFORMATION section for additional 
information on these meetings.

ADDRESSES: You may send written feedback, identified by Docket ID No. 
EPA-HQ-OW-2021-0328, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
written feedback.
     Email: [email protected]. Include Docket ID No. EPA-HQ-OW-

[[Page 41912]]

2021-0328 in the subject line of the message.
    Instructions: All submissions received must include Docket ID No. 
EPA-HQ-OW-2021-0328. Written feedback received may be posted without 
change to https://www.regulations.gov/, including any personal 
information provided. Out of an abundance of caution for members of the 
public and our staff, the EPA Docket Center and Reading Room are closed 
to the public, with limited exceptions, to reduce the risk of 
transmitting COVID-19. Our Docket Center staff will continue to provide 
remote customer service via email, phone, and webform. We encourage the 
public to submit written feedback via https://www.regulations.gov/ or 
email, as there may be a delay in processing mail and faxes. Hand 
deliveries and couriers may be received by scheduled appointment only. 
For further information on EPA Docket Center services and the current 
status, please visit us online at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Damaris Christensen, Oceans, Wetlands 
and Communities Division, Office of Water (4504-T), Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 
telephone number: (202) 564-2281; email address: [email protected], and Stacey Jensen, Office of the Assistant Secretary 
of the Army for Civil Works, Department of the Army, 108 Army Pentagon, 
Washington, DC 20310-0104; telephone number: (703) 459-6026; email 
address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    ``Waters of the United States'' is a threshold term in the Clean 
Water Act that establishes the geographic scope of federal jurisdiction 
under the Act. Many Clean Water Act programs, including sections 303 
(Water Quality Standards and Total Maximum Daily Loads), 311 (oil spill 
programs), 401 (water quality certifications), 402 (pollutant discharge 
permits), and 404 (dredged and fill material discharge permits), 
address ``navigable waters,'' defined in the statute as ``the waters of 
the United States, including the territorial seas.'' Since the 1970s, 
the U.S. Environmental Protection Agency (EPA) and the U.S. Department 
of the Army (``Army,'' collectively ``the agencies'') have defined 
``waters of the United States'' by regulation. The Navigable Waters 
Protection Rule (NWPR), the agencies' most recent regulation revising 
the definition of ``waters of the United States,'' was published in the 
Federal Register on April 21, 2020 (85 FR 22250). The NWPR defines 
categories of waters that are jurisdictional and categories that are 
not jurisdictional. Eighty-one parties have filed fifteen complaints 
challenging the NWPR in eleven different district courts.

II. Review of the NWPR

    On January 20, 2021, the President signed Executive Order 13990 
directing federal agencies to review rules issued in the prior four 
years that are or might conflict with the policy stated in the order. 
The order provides that ``[i]t is, therefore, the policy of my 
Administration to listen to the science; to improve public health and 
protect our environment; to ensure access to clean air and water; to 
limit exposure to dangerous chemicals and pesticides; to hold polluters 
accountable, including those who disproportionately harm communities of 
color and low-income communities; to reduce greenhouse gas emissions; 
to bolster resilience to the impacts of climate change; to restore and 
expand our national treasures and monuments; and to prioritize both 
environmental justice and the creation of the well-paying union jobs 
necessary to deliver on these goals.'' 86 FR 7037, section 1 (published 
January 25, 2021, signed January 20, 2021). The order ``directs all 
executive departments and agencies (agencies) to immediately review 
and, as appropriate and consistent with applicable law, take action to 
address the promulgation of Federal regulations and other actions 
during the last four years that conflict with these important national 
objectives, and to immediately commence work to confront the climate 
crisis.'' Id. at 7037, section 2(a). ``For any such actions identified 
by the agencies, the heads of agencies shall, as appropriate and 
consistent with applicable law, consider suspending, revising, or 
rescinding the agency actions.'' Id. The order also specifically 
revoked Executive Order 13778 of February 28, 2017 (Restoring the Rule 
of Law, Federalism, and Economic Growth by Reviewing the ``Waters of 
the United States'' Rule), which had initiated development of the 
agencies' two-step process to repeal and replace the 2015 Clean Water 
Rule, culminating in promulgation of the NWPR.
    In conformance with Executive Order 13990, the agencies reviewed 
the NWPR and have decided to initiate two new rulemakings. The agencies 
considered the following factors in making this decision, including but 
not limited to: The text of the Clean Water Act; Congressional intent 
and the objective of the Clean Water Act; Supreme Court precedent; the 
current and future harms to the chemical, physical, and biological 
integrity of the nation's waters due to the NWPR; concerns raised by 
stakeholders about the NWPR, including implementation-related issues; 
the principles outlined in the Executive Order; and issues raised in 
ongoing litigation challenging the NWPR. EPA and the Army have 
substantial and legitimate concerns that the NWPR did not appropriately 
consider the effect of the revised definition of ``waters of the United 
States'' on the integrity of the nation's waters. Notwithstanding these 
concerns and ongoing litigation, the agencies will continue to 
implement the NWPR until it is no longer in effect, as a result of 
either a new final rule going into effect or by virtue of a court 
order.

III. New Rulemakings

    The agencies are initiating two new rulemakings. First, the 
agencies intend to propose restoring the longstanding Clean Water Act 
regulations that were in place for decades prior to 2015, as amended to 
be consistent with relevant Supreme Court decisions.\1\ The agencies 
then intend to propose a second rule that builds on that regulatory 
foundation. During the development of both rules, the agencies will 
listen to and engage with states, tribes, and interested stakeholders 
about their experiences implementing the NWPR, the 2015 Clean Water 
Rule, and the pre-2015 regulatory regime. The agencies' rulemaking 
process will be guided by the following considerations:
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    \1\ In United States v. Riverside Bayview Homes, 474 U.S. 121 
(1985), in a unanimous opinion, the Supreme Court deferred to the 
Corps' judgment and upheld the inclusion of adjacent wetlands in the 
regulatory definition of ``waters of the United States.'' In Solid 
Waste Agency of Northern Cook County v. U.S. Army Corps of 
Engineers, 531 U.S. 159 (2001), the Court (in a 5-4 opinion) held 
that the use of ``isolated'' non-navigable intrastate ponds by 
migratory birds was not by itself a sufficient basis for the 
exercise of Federal regulatory authority under the CWA. In Rapanos 
v. United States, 547 U.S. 715 (2006), a four-Justice plurality 
interpreted ``waters of the United States'' as covering ``relatively 
permanent'' waters as well as wetlands with a ``continuous surface 
connection'' to such water bodies. Justice Kennedy's concurring 
opinion concluded that a water or wetland must possess a 
``significant nexus'' to traditional navigable waters to be a 
``water of the United States.''
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     Ensure the rule will further the principal objective of 
the Act as set forth by Congress, which is to ``restore the chemical, 
physical, and biological integrity of the Nation's waters.'' 33 U.S.C. 
1251.
     Consider the latest peer-reviewed and relevant science.

[[Page 41913]]

     Prioritize practical implementation approaches for state 
and tribal co-regulators.
     Reflect the experiences of, and input received from, 
landowners, the agricultural community, states, tribes, local 
governments, community organizations, environmental groups, and 
disadvantaged communities with environmental justice concerns.

IV. Stakeholder Engagement

    To assist the agencies in the rulemaking process, the agencies 
welcome feedback that can be provided through the open public docket or 
through participation at one of several public meetings. This feedback 
will inform the rulemaking process; however, the agencies will not be 
responding to individual recommendations. Issues that the agencies are 
particularly interested in getting feedback on include:
     Implementation. The agencies seek input on co-regulator 
and stakeholder experiences with implementing the various regulatory 
regimes. In particular, the agencies would like feedback on significant 
nexus analyses under the pre-2015 regulatory regime and the 2015 Clean 
Water Rule, as well as the typical year analysis under the NWPR. Are 
there implementation successes and challenges in assessing specific 
types of sites? If there are challenges, what types of implementation 
assistance would be helpful? Are there ways in which these assessments 
could be more efficient? Are there tools that have been, or could be, 
developed to assist in determining jurisdiction?
     Regional, State, and Tribal interests. The agencies 
request feedback on how or whether states and tribes have taken any 
actions in response to changes in the jurisdictional scope of ``waters 
of the United States'' under the NWPR. In addition, the agencies 
request recommendations regarding whether there are certain waters that 
could be addressed by regionalized approaches. The agencies are 
committed to listening to specific tribal interests that should be 
considered in any revised definition. The agencies are also seeking 
input on the use and value of the jurisdictional category for 
interstate waters.
     Science. Consistent with Executive Order 13990, the 
agencies request identification of relevant science related to how 
streams, wetlands, lakes, and ponds restore and maintain the chemical, 
physical, and biological integrity of the nation's waters, including 
relevant literature that has been published since EPA's 2015 Report 
Connectivity of Streams and Wetlands to Downstream Waters: A Review and 
Synthesis of the Scientific Evidence.
     Environmental justice interests. Consistent with Executive 
Order 13990, the agencies request feedback on how to better engage to 
ensure input is received from communities with environmental justice 
interests. How does the jurisdictional status of waters affect 
communities that are overburdened with environmental pollution? How is 
the implementation of NWPR impacting low-income communities, and other 
disadvantaged communities? Can the jurisdictional status of waters be 
linked to environmental justice concerns, and, if so, what is the 
basis?
     Climate implications. Consistent with Executive Order 
13990, the agencies request feedback on how climate change affects the 
chemical, physical, and biological integrity of the nation's waters. 
How should the agencies account for the effects of a changing climate 
in identifying jurisdictional waters? Are there particular types of 
waters that are especially important in protecting the nation's waters 
in the face of a changing climate, and, if so, what scientific evidence 
supports these conclusions?
     The scope of jurisdictional tributaries. Multiple rules, 
judicial decisions, and longstanding practice protected ephemeral, 
intermittent, and perennial streams that met applicable criteria for 
jurisdiction as tributaries that are ``waters of the United States.'' 
Ephemeral streams were then categorically excluded from jurisdiction in 
the NWPR, and some intermittent streams and even some perennial streams 
are no longer jurisdictional under the NWPR. The agencies seek feedback 
on whether certain characteristics, such as indicators of 
channelization; physical indicators such as indicators of ordinary high 
water mark; flow regime; flow duration; watershed size; landscape 
position; stream network density; or distance from a traditional 
navigable water, territorial sea, or interstate water should inform 
determinations about which tributaries could be considered 
jurisdictional as a class, and which decisions are best left to 
individual, case-specific significant nexus determinations similar to 
the agencies' practice from 2007 through 2015. The agencies are 
particularly interested in feedback regarding how to identify ephemeral 
streams that should be jurisdictional as tributaries, as they are the 
dominant stream type in the arid West and in many headwater regions. 
The agencies are interested in understanding the impacts of their 
exclusion from the regulations under the Clean Water Act by the NWPR.
     The scope of jurisdictional ditches. Historically, the 
agencies have recognized that ditches that reroute otherwise 
jurisdictional tributaries are themselves jurisdictional as 
tributaries. In addition, in practice, many other ditches have been 
considered generally not jurisdictional. The 2015 Clean Water Rule and 
later the NWPR, for the first time, excluded many ditches explicitly in 
rule language. The agencies solicit feedback on whether flow regime, 
physical features, excavation in aquatic resources versus uplands, type 
or use of the ditch (e.g., irrigation and drainage), biological 
indicators like presence of fish, or other characteristics could 
provide clear and implementable distinctions between jurisdictional and 
non-jurisdictional ditches.
     The scope of adjacency. Each regulatory definition of 
``waters of the United States'' has taken a different approach to 
determining adjacency for purposes of jurisdiction under the Act and to 
the jurisdiction of non-adjacent waters:
    a. Wetlands that may have been considered adjacent under some but 
not all definitions of ``waters of the United States'' include wetlands 
behind artificial berms, which were considered adjacent under the pre-
2015 regulatory regime and the 2015 Clean Water Rule regardless of the 
presence or absence of a hydrologic surface connection, but required a 
surface water connection under the NWPR. The pre-2015 regulatory regime 
and the 2015 Clean Water Rule also included ``neighboring'' wetlands 
within the definition of ``adjacent,'' while the NWPR generally did 
not.
    b. Adjacent lakes and ponds that were not jurisdictional as 
tributaries were covered under the other waters category in the pre-
2015 regulations if they met certain criteria. Adjacent lakes and ponds 
were included with adjacent wetlands in an adjacent waters category in 
the 2015 Clean Water Rule. Lakes and ponds with certain surface water 
connections are jurisdictional under the NWPR.
    c. Another category of waters includes non-adjacent, intrastate, 
non-navigable waters, such as certain prairie potholes, playa lakes, 
Carolina Bays, and more, that are not proximate (reasonably close) to 
jurisdictional waters or lack natural tributary connections or ditching 
to connect them to a tributary network. These waters are typically non-
jurisdictional under the NWPR and, as a matter of practice, following 
Supreme Court decisions the agencies did not assert jurisdiction over 
them under the

[[Page 41914]]

pre-2015 regulatory regime. These waters would have been jurisdictional 
under the 2015 Clean Water Rule where they met specific criteria and 
were found to have a significant nexus to downstream traditional 
navigable waters, interstate waters, or territorial seas.
    The agencies are interested in identifying characteristics that 
could allow for clarity, implementability, and/or regionalization in 
defining adjacency and identifying jurisdictional waters, including 
whether there are appropriate distances or other factors to limit 
adjacency, whether there are certain situations where case-specific 
significant nexus determinations would more appropriately determine 
jurisdiction, and whether there are certain types of waters with 
particular features or characteristics that could provide clear and 
implementable distinctions between jurisdictional and non-
jurisdictional waters. The agencies are also interested in 
recommendations for implementation approaches to address any of these 
types of waters.
     Exclusions from the definition. The agencies request 
feedback on the implementability and clarity of exclusions present in 
the NWPR and identified in the 2015 Clean Water Rule or the pre-2015 
regulations and the preambles to those regulations. Was the scope of 
these exclusions appropriate under the Clean Water Act, easy to 
understand, and implementable? Are the NWPR definitions of prior 
converted cropland and waste treatment systems appropriate under the 
Clean Water Act, easy to understand, and implementable? Did the 
exclusions have any benefits or harmful impacts? Are there regional 
differences with these features and/or systems that should be 
considered?

V. Public Meetings and Outreach

    The agencies will hold a series of public meetings intended to 
solicit recommendations as the agencies pursue the development of both 
rules. During these meetings, the agencies intend to provide brief 
background information on the rulemaking process and stakeholders will 
have the opportunity to provide input, particularly with regard to the 
directives in Executive Order 13990 and the topics above. The agencies 
will hold four meetings open to all stakeholders and an additional 
session for small entities, and reserve a time for an additional 
meeting that will be added in case all speaking slots are filled in 
earlier meetings.
    The public meetings will be held as web conferences in August 2021, 
with one date reserved in September, if needed. Registration 
instructions can be found at the following website: https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities. Persons or organizations wishing to provide verbal 
recommendations during the meetings will be selected on a first-come, 
first-serve basis. Due to the expected number of participants, 
individuals will be asked to limit their spoken presentation to three 
minutes. Once the speaking slots are filled, participants may be placed 
on a standby list to speak or continue to register to listen to the 
recommendations. The meetings will be recorded and posted on EPA's 
website. Supporting materials and written feedback from those who do 
not have an opportunity to speak can be submitted to the docket as 
described above. The schedule for the ``waters of the United States'' 
meetings is as follows:

--August 18, 2021, from 3 p.m. to 5 p.m. Eastern,
--August 23, 2021, from 1 p.m. to 3 p.m. Eastern,
--August 25, 2021, from 3 p.m. to 5 p.m. Eastern,
--August 26, 2021, from 6 p.m. to 8 p.m. Eastern, and
--August 31, 2021, from 3 p.m. to 5 p.m. Eastern.

The agencies have also reserved September 2, 2021, from 2 p.m. to 4 
p.m. Eastern, for an additional meeting that will be added in case all 
speaking slots are filled in earlier meetings.
    In addition, the agencies are initiating Federalism and tribal 
consultations for the proposed rulemaking to restore the regulations 
defining ``waters of the United States'' in place from 1986 until 2015, 
amended to be consistent with relevant Supreme Court decisions. The 
agencies also intend to host a series of dialogues with state and 
tribal coregulators this fall to discuss both rulemakings.
    Finally, the rulemaking efforts of the past decade have highlighted 
the regional variability of water resources and the importance of close 
engagement with stakeholders to understand the specifics of how they 
experience regulation under varying definitions of waters of the United 
States. As an agency, we will honor our commitment to listen and learn 
from diverse perspectives by hosting 10 roundtables representing 
different regions of the country and encouraging broad participation 
that reflects diverse views. These 10 regional roundtables will allow a 
full spectrum of stakeholders to provide their perspectives about what 
has worked and what has not worked within their geographic areas in 
previous regulatory efforts with each other and in the presence of EPA 
and Army leadership. These roundtables will highlight similarities and 
differences across geographic regions, while emphasizing particular 
water resources that are characteristic of or unique to each region, 
and providing site-specific feedback about implementation. Information 
on the roundtables will be posted on the EPA website above.

Vance F. Stewart III,
Acting Principal Deputy, Office of the Assistant Secretary of the Army 
for Civil Works, Department of the Army.
John Goodin,
Director, Office of Wetlands, Oceans and Watersheds, Environmental 
Protection Agency.
[FR Doc. 2021-16643 Filed 8-3-21; 8:45 am]
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