22250 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations DEPARTMENT OF DEFENSE disclosure is restricted by statute. V. Overview of the Effects of the Rule and Certain other material, such as Supporting Analyses Department of the Army, Corps of copyrighted material, is not placed on VI. Statutory and Executive Order Reviews Engineers the internet and will be publicly A. Executive Order 12866: Regulatory Planning and Review; Executive Order available only in hard copy form. 33 CFR Part 328 13563: Improving Regulation and Publicly available docket materials are Regulatory Review available electronically through http:// B. Executive Order 13771: Reducing ENVIRONMENTAL PROTECTION www.regulations.gov. Regulation and Controlling Regulatory AGENCY FOR FURTHER INFORMATION CONTACT: Costs Michael McDavit, Oceans, Wetlands, C. Paperwork Reduction Act 40 CFR Parts 110, 112, 116, 117, 120, D. Regulatory Flexibility Act and Communities Division, Office of 122, 230, 232, 300, 302, and 401 E. Unfunded Mandates Reform Act Water (4504–T), Environmental F. Executive Order 13132: Federalism [EPA–HQ–OW–2018–0149; FRL–10004–88– Protection Agency, 1200 Pennsylvania G. Executive Order 13175: Consultation OW] Avenue NW, Washington, DC 20460; and Coordination With Indian Tribal RIN 2040–AF75 telephone number: (202) 566–2465; Governments email address: [email protected]; or H. Executive Order 13045: Protection of The Navigable Waters Protection Rule: Jennifer A. Moyer, Regulatory Children From Environmental Health Definition of ‘‘Waters of the United Community of Practice (CECW–CO–R), and Safety Risks U.S. Army Corps of Engineers, 441 G I. Executive Order 13211: Actions States’’ Concerning Regulations That Street NW, Washington, DC 20314; Significantly Affect Energy Supply, AGENCY: Department of the Army, Corps telephone number: (202) 761–5903; of Engineers, Department of Defense; Distribution, or Use email address: USACE_CWA_Rule@ J. National Technology Transfer and and Environmental Protection Agency usace.army.mil. Advancement Act (EPA). SUPPLEMENTARY INFORMATION: K. Executive Order 12898: Federal Actions ACTION: Final rule. To Address Environmental Justice in Table of Contents Minority Populations and Low-Income SUMMARY: The Environmental Protection Populations Agency and the Department of the Army I. General Information L. Congressional Review Act A. Where can I find information related to are publishing a final rule defining the this rulemaking? I. General Information scope of waters federally regulated B. What action are the agencies taking? under the Clean Water Act. The C. What is the agencies’ authority for A. Where can I find information related Navigable Waters Protection Rule is the taking this action? to this rulemaking? second step in a comprehensive, two- II. Background A. The Final Rule 1. Docket. An official public docket step process intended to review and for this action has been established revise the definition of ‘‘waters of the B. History of This Rulemaking 1. The Clean Water Act under Docket ID No. EPA–HQ–OW– United States’’ consistent with the 2. Regulatory History 2018–0149. The official public docket Executive Order signed on February 28, 3. U.S. Supreme Court Decisions consists of the documents specifically 2017, ‘‘Restoring the Rule of Law, 4. The 2015 Rule referenced in this action and other Federalism, and Economic Growth by C. Executive Order 13778 and the ‘‘Step information related to this action. The Reviewing the ‘Waters of the United One’’ Rulemaking official public docket is the collection of States’ Rule.’’ Once effective, it replaces D. Summary of Stakeholder Outreach and the ‘‘Step Two’’ Rulemaking materials that is available for public the rule published on October 22, 2019. viewing at the OW Docket, EPA West, This final rule implements the overall E. Overview of Legal Construct for the Final Rule Room 3334, 1301 Constitution Ave. NW, objective of the Clean Water Act to 1. Statutory Framework Washington, DC 20004. This Docket restore and maintain the integrity of the 2. U.S. Supreme Court Precedent Facility is open from 8:30 a.m. to 4:30 nation’s waters by maintaining federal 3. Principles and Considerations p.m., Monday through Friday, excluding authority over those waters that F. Summary of Final Rule as Compared to legal holidays. The OW Docket Congress determined should be the 1986 Regulations Recodified in the 2019 Rule and the 2015 Rule telephone number is (202) 566–2426. A regulated by the Federal government reasonable fee will be charged for under its Commerce Clause powers, G. Existing Guidance III. Definition of ‘‘Waters of the United copies. while adhering to Congress’ policy States’’ 2. Electronic Access. You may access directive to preserve States’ primary A. Key Terms and Concepts this Federal Register document authority over land and water resources. 1. Typical Year electronically under the ‘‘Federal This final definition increases the 2. Perennial, Intermittent, and Ephemeral Register’’ listings at http:// predictability and consistency of Clean 3. Breaks www.regulations.gov. An electronic Water Act programs by clarifying the B. Territorial Seas and Traditional version of the public docket is available Navigable Waters scope of ‘‘waters of the United States’’ through EPA’s electronic public docket federally regulated under the Act. C. Interstate Waters D. Tributaries and comment system, EPA Dockets. You DATES: This rule is effective on June 22, E. Ditches may access EPA Dockets at http:// 2020. F. Lakes and Ponds, and Impoundments of www.regulations.gov to view public ADDRESSES: The EPA has established a Jurisdictional Waters comments as they are submitted and docket for this action under Docket ID G. Adjacent Wetlands posted, access the index listing of the No. EPA–HQ–OW–2018–0149. All H. Waters and Features That Are Not contents of the official public docket, documents in the docket are listed on Waters of the United States and access those documents in the I. Placement of the Definition of ‘‘Waters of the http://www.regulations.gov website. the United States’’ in the Code of Federal public docket that are available Although listed in the index, some Regulations electronically, including the economic information is not publicly available, IV. State, Tribal, and Federal Agency Datasets and regulatory analyses for the final e.g., CBI or other information whose of Waters of the United States rule. For additional information about VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations 22251 EPA’s public docket, visit the EPA States are waters within the ordinary similar artificial feature, or through a Docket Center homepage at http:// meaning of the term, such as oceans, debris pile, boulder field, or similar www.epa.gov/epahome/dockets.htm. rivers, streams, lakes, ponds, and natural feature. A lake, pond, or Although not all docket materials may wetlands, and that not all waters are impoundment of a jurisdictional water be available electronically, you may still waters of the United States. The final is also jurisdictional if, in a typical year, access any of the publicly available rule includes the agencies’ longstanding it is inundated by flooding from a docket materials through the Docket category of the territorial seas and territorial sea or traditional navigable Facility. traditional navigable waters. A water, or tributary, or from another ‘‘tributary’’ is defined in the final rule jurisdictional lake, pond, or B. What action are the agencies taking? as a river, stream, or similar naturally impoundment. In this notice, the agencies are occurring surface water channel that The final rule defines ‘‘adjacent publishing a final rule defining ‘‘waters contributes surface water flow to a wetlands’’ as wetlands that abut a of the United States’’ in 33 CFR 328.3 territorial sea or traditional navigable territorial sea or traditional navigable and 40 CFR 120.2. water in a typical year either directly or water, a tributary, or a lake, pond, or indirectly through other tributaries, impoundment of a jurisdictional water; C. What is the agencies’ authority for are inundated by flooding from a taking this action? jurisdictional lakes, ponds, or impoundments, or adjacent wetlands. A territorial sea or traditional navigable The authority for this action is the tributary must be perennial or water, a tributary, or a lake, pond, or Federal Water Pollution Control Act, 33 intermittent in a typical year. The impoundment of a jurisdictional water U.S.C. 1251 et seq., including sections alteration or relocation of a tributary in a typical year; are physically 301, 304, 311, 401, 402, 404, and 501. does not modify its jurisdictional status separated from a territorial sea or traditional navigable water, a tributary, II. Background as long as it continues to be perennial or intermittent and contributes surface or a lake, pond, or impoundment of a A. The Final Rule water flow to a traditional navigable jurisdictional water only by a natural berm, bank, dune, or similar natural The U.S. Environmental Protection water or territorial sea in a typical year. feature; or are physically separated from Agency (EPA) and the U.S. Department A tributary does not lose its jurisdictional status if it contributes a territorial sea or traditional navigable of the Army (Army or Corps) (together, water, a tributary, or a lake, pond, or ‘‘the agencies’’) are publishing the surface water flow to a downstream jurisdictional water in a typical year impoundment of a jurisdictional water Navigable Waters Protection Rule only by an artificial dike, barrier, or defining the scope of waters subject to through a channelized non- jurisdictional surface water feature, similar artificial structure so long as that federal regulation under the Clean structure allows for a direct Water Act (CWA or the Act), in light of through a subterranean river, through a culvert, dam, tunnel, or other similar hydrological surface connection to the the U.S.