[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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