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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Proposed Rules
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Prioritize practical implementation approaches for state and tribal coregulators.
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 nations waters, including relevant literature that has been published since EPAs 2015 Report Connectivity of Streams and Wetlands
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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 nations 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 nations 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
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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 nonjurisdictional under the NWPR and, as a matter of practice, following Supreme Court decisions the agencies did not assert jurisdiction over them under the
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