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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Proposed Rules
20210328 in the subject line of the message.
Instructions: All submissions received must include Docket ID No. EPAHQ
OW20210328. 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 COVID19. 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 4504T, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: 202 5642281;
email address: WOTUS-outreach@
epa.gov, and Stacey Jensen, Office of the Assistant Secretary of the Army for Civil Works, Department of the Army, 108
Army Pentagon, Washington, DC
203100104; telephone number: 703
4596026; email address:
usarmy.pentagon.hqda-asa-cw.mbx.asacw-reporting@mail.mil.
SUPPLEMENTARY INFORMATION:

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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
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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 it 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 2a. 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;

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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 nations 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 nations 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 pre2015 regulatory regime. The agencies rulemaking process will be guided by the following considerations:
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 Nations waters. 33
U.S.C. 1251.
Consider the latest peer-reviewed and relevant science.
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 54 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 Kennedys 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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