
[Federal Register Volume 88, Number 173 (Friday, September 8, 2023)]
[Rules and Regulations]
[Pages 61964-61969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18929]


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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-2023-0346; FRL-11132-01-OW]
RIN 2040-AG32


Revised Definition of ``Waters of the United States''; Conforming

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

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) and the Department 
of the Army (``the agencies'') are amending the Code of Federal 
Regulations (CFR) to conform the definition of ``waters of the United 
States'' to a 2023 Supreme Court decision. This conforming rule amends 
the provisions of the agencies' definition of ``waters of the United 
States'' that are invalid under the Supreme Court's interpretation of 
the Clean Water Act in the 2023 decision.

DATES: This final rule is effective on September 8, 2023.

ADDRESSES: The agencies have established a docket for this action under 
Docket ID No. EPA-HQ-OW-2023-0346. All documents in the docket are 
listed on the https://www.regulations.gov/ website. Although listed in 
the index, some information is not publicly available, e.g., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Whitney Beck, Oceans, Wetlands and 
Communities Division, Office of Water (4504T), 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. Why are the agencies issuing this final rule?

    This action amends Code of Federal Regulations (CFR) provisions 
promulgated in ``Revised Definition of `Waters of the United States,' 
'' 88 FR 3004 (January 18, 2023) (``2023 Rule''), to conform to the 
2023 Supreme Court decision in Sackett v. EPA, 598 U.S._, 143 S. Ct. 
1322 (2023) (``Sackett''). The Administrative Procedure Act (APA) 
provides that, when an agency for good cause finds that public notice 
and comment procedures are impracticable, unnecessary, or contrary to 
the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. 5 U.S.C. 553(b)(B). The 
Environmental Protection Agency (EPA) and the Department of the Army 
(``the agencies'') have determined that there is good cause under APA 
section 553(b)(B) to issue this final rule without prior proposal and 
opportunity for comment because such notice and opportunity for comment 
is unnecessary. Certain provisions of the 2023 Rule are invalid under 
the Supreme Court's interpretation of the Clean Water Act in Sackett. 
The effect of the Sackett decision was to render these provisions 
immediately inconsistent with the Supreme Court's interpretation of the 
Clean Water Act. Consistent with the agencies' previously stated intent 
regarding the severability of the 2023 Rule in the event that 
provisions of that rule were held invalid, see 88 FR 3135, the agencies 
are conforming the 2023 Rule's definition of the term ``waters of the 
United States'' to the Supreme Court's decision. Specifically, the 
agencies are revising 40 CFR 120.2(a)(1)(iii), (a)(3) through (5), and 
(c)(2) and (6), and 33 CFR 328.3(a)(1)(iii), (a)(3) through (5), and 
(c)(2) and (6) to amend aspects of the definition as needed to conform 
to the Supreme Court's interpretation of the Clean Water Act in 
Sackett. Because the sole purpose of this rule is to amend these 
specific provisions of the 2023

[[Page 61965]]

Rule to conform with Sackett, and such conforming amendments do not 
involve the exercise of the agencies' discretion, providing advance 
public notice and seeking comment is unnecessary. A notice and comment 
process would neither provide new information to the public nor inform 
any agency decision-making regarding the aspects of the regulations 
defining ``waters of the United States'' that are invalid as 
inconsistent with the Clean Water Act under Sackett.
    For similar reasons, there is good cause under the APA to make this 
rule immediately effective, 5 U.S.C. 553(d)(3), because this rule does 
not impose any burdens on the regulated community; rather, it merely 
conforms the 2023 Rule to the Supreme Court's decision in Sackett by 
amending the provisions of the 2023 Rule that are invalid under the 
Supreme Court's interpretation of the Clean Water Act. Making the rule 
immediately effective will also provide more clarity and certainty to 
the regulated community and the public following the Sackett decision. 
Many States and industry groups challenging the 2023 Rule have 
advocated in litigation for quick action by the agencies in light of 
Sackett, citing the need for regulatory certainty and less delay in 
processing approved jurisdictional determinations and certain Clean 
Water Act permits. A delayed effective date for amendments to 
regulations defining ``waters of the United States'' to conform to 
Sackett would prolong confusion and potentially result in project 
delays for prospective permittees that seek approved jurisdictional 
determinations to evaluate whether their projects will result in 
discharges to ``waters of the United States.'' Making the rule 
immediately effective also avoids delaying provision of clarity to aid 
States and authorized Tribes administering Clean Water Act permitting 
programs and to members of the general public who seek to understand 
which waters are subject to the Clean Water Act's requirements. It is 
thus appropriate for the agencies to revise the affected provisions in 
40 CFR 120.2 and 33 CFR 328.3 to conform to Sackett as quickly as 
possible and to make those revisions immediately effective.
    In 1972, Congress enacted the Federal Water Pollution Control Act 
Amendments of 1972, Public Law 92-500, 86 Stat. 816, as amended, 33 
U.S.C. 1251 et seq. (``Clean Water Act'' or ``Act''). Central to the 
framework and protections provided by the Clean Water Act is the term 
``navigable waters,'' defined in the Act as ``the waters of the United 
States, including the territorial seas.'' 33 U.S.C. 1362(7). On January 
18, 2023, the final ``Revised Definition of `Waters of the United 
States' '' rule was published in the Federal Register, and the rule 
took effect on March 20, 2023.\1\
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    \1\ As a result of litigation, the 2023 Rule is enjoined in 27 
States as of the date this final rule was signed. See Texas v. EPA, 
Nos. 23-00017 & 23-00020 (S.D. Tex. March 19, 2023); West Virginia 
v. EPA, No. 23-00032 (D.N.D. April 12, 2023); Commonwealth of 
Kentucky v. EPA, Nos. 23-5343/5345 (6th Cir. May 10, 2023).
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    In 2006, the Supreme Court addressed the scope of ``waters of the 
United States'' in Rapanos v. United States, 547 U.S. 715 (2006) 
(``Rapanos''). As the Court in Sackett noted, no position in Rapanos 
commanded a majority of the Court. Sackett, 143 S. Ct. at 1344. In 
Rapanos, all nine members of the Court agreed that the term ``waters of 
the United States'' encompasses some waters that are not navigable in 
the traditional sense. Rapanos, 547 U.S. at 731 (Scalia, J., plurality 
opinion) (``We have twice stated that the meaning of `navigable waters' 
in the Act is broader than the traditional understanding of that term, 
SWANCC, 531 U.S. at 167; Riverside Bayview, 474 U.S. at 133.''). A 
four-Justice plurality in Rapanos interpreted the term ``waters of the 
United States'' as covering ``relatively permanent, standing or 
continuously flowing bodies of water,'' id. at 739, that are connected 
to traditional navigable waters, id. at 742, as well as wetlands with a 
``continuous surface connection'' to such waterbodies, id. (Scalia, J., 
plurality opinion). The Rapanos plurality noted that its reference to 
``relatively permanent'' waters did ``not necessarily exclude streams, 
rivers, or lakes that might dry up in extraordinary circumstances, such 
as drought,'' or ``seasonal rivers, which contain continuous flow 
during some months of the year but no flow during dry months.'' Id. at 
732 n.5 (emphasis in original). Justice Kennedy's concurring opinion 
took a different approach, concluding that ``to constitute ```navigable 
waters''' under the Act, a water or wetland must possess a `significant 
nexus' to waters that are or were navigable in fact or that could 
reasonably be so made.'' Id. at 759. He concluded that wetlands possess 
the requisite significant nexus if the wetlands ``either alone or in 
combination with similarly situated [wet]lands in the region, 
significantly affect the chemical, physical, and biological integrity 
of other covered waters more readily understood as `navigable.' '' Id. 
at 780. The four dissenting Justices in Rapanos would have deferred to 
the agencies and also concluded that waters would be jurisdictional 
under ``either the plurality's or Justice Kennedy's test.'' Id. at 810 
& n.14 (Stevens, J., dissenting).
    The 2023 Rule incorporated the two jurisdictional standards from 
Rapanos into the definition of the term ``waters of the United 
States.'' First, under that rule, the ``relatively permanent standard'' 
refers to the test to identify: relatively permanent, standing or 
continuously flowing tributaries connected to traditional navigable 
waters, the territorial seas, or interstate waters; relatively 
permanent, standing or continuously flowing additional waters with a 
continuous surface connection to such relatively permanent waters or to 
traditional navigable waters, the territorial seas, or interstate 
waters; and, adjacent wetlands and certain impoundments with a 
continuous surface connection to such relatively permanent waters or to 
traditional navigable waters, the territorial seas, or interstate 
waters. Second, the ``significant nexus standard'' under the 2023 Rule 
refers to the test to identify waters that, either alone or in 
combination with similarly situated waters in the region, significantly 
affect the chemical, physical, or biological integrity of traditional 
navigable waters, the territorial seas, or interstate waters. The 
regulatory text also defined ``significantly affect'' for purposes of 
the significant nexus standard. 88 FR 3006. Under the 2023 Rule, waters 
were jurisdictional if they met either standard.
    The 2023 Rule also defined the term ``adjacent'' with no changes 
from the agencies' longstanding regulatory definition. ``Adjacent'' was 
defined as ``bordering, contiguous, or neighboring.'' 88 FR 3116-17. 
Wetlands separated from other ``waters of the United States'' by man-
made dikes or barriers, natural river berms, beach dunes and the like 
were defined as ``adjacent'' wetlands. Id.
    On May 25, 2023, the Supreme Court decided Sackett v. EPA. While 
the 2023 Rule was not directly before the Court, the Court considered 
the jurisdictional standards set forth in that rule. The enterprise of 
the 2023 Rule--to define ``waters of the United States''--was the same 
as the Supreme Court's enterprise in Sackett: ``to identify with 
greater clarity what the Act means by `the waters of the United 
States.' '' 143 S. Ct. at 1329; see also id. at 1331 (``The meaning of 
[33 U.S.C. 1362(7)] is the persistent problem that we must address.''). 
The Supreme Court recognized the agencies' definition and utilization 
of ``adjacent'' and

[[Page 61966]]

``significant nexus'' ``as set out in [the agencies'] most recent 
rule,'' the 2023 Rule, 143 S. Ct. at 1335, 1341, but concluded that the 
significant nexus standard was ``inconsistent with the text and 
structure of the [Clean Water Act].'' Id. at 1341. Instead, the Court 
``conclude[d] that the Rapanos plurality was correct: the [Clean Water 
Act]'s use of `waters' encompasses `only those relatively permanent, 
standing or continuously flowing bodies of water ``forming 
geographic[al] features'' that are described in ordinary parlance as 
``streams, oceans, rivers, and lakes.'' ' '' Id. at 1336 (quoting 
Rapanos, 547 U.S. at 739). The Court also ``agree[d] with [the 
plurality's] formulation of when wetlands are part of `the waters of 
the United States,' '' id. at 1340-41: ``when wetlands have `a 
continuous surface connection to bodies that are ``waters of the United 
States'' in their own right, so that there is no clear demarcation 
between ``waters'' and wetlands.' '' Id. at 1344 (citing Rapanos, 547 
U.S. at 742, 755). Thus, the Supreme Court concluded that ``this 
interpretation''--i.e., the interpretation of adjacent wetlands as 
``waters of the United States'' set out in the 2023 Rule--``is 
inconsistent with the text and structure of the CWA'' insofar as it 
incorporated the ``significant nexus'' test and defined ``adjacent'' 
other than as the Rapanos plurality defined the term. Id. at 1341.
    The agencies are revising the 2023 Rule to remove the significant 
nexus standard and to amend its definition of ``adjacent'' as these 
provisions are invalid under the Supreme Court's interpretation of the 
Clean Water Act in Sackett. See section II of this preamble for the 
specific amendments. Under the decision in Sackett, waters are not 
jurisdictional under the Clean Water Act based on the significant nexus 
standard. In addition, under the decision in Sackett, wetlands are not 
defined as ``adjacent'' or jurisdictional under the Clean Water Act 
solely because they are ``bordering, contiguous, or neighboring . . . 
[or] separated from other `waters of the United States' by man-made 
dikes or barriers, natural river berms, beach dunes and the like.'' 
Therefore, under this conforming rule, waters cannot be found to be 
jurisdictional because they meet the significant nexus standard; nor 
can wetlands be found to be jurisdictional based on the definition of 
``adjacent'' codified in the 2023 Rule. Furthermore, as a result of the 
decision in Sackett invalidating the significant nexus standard, the 
provision for assessment of streams and wetlands under the additional 
waters provision of paragraph (a)(5) is no longer valid as any 
jurisdictional streams and wetlands are covered by paragraphs (a)(1) 
through (4) of the 2023 Rule.\2\
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    \2\ Lakes and ponds, however, may still be jurisdictional under 
paragraph (a)(5) if they do not fall within paragraphs (a)(1) 
through (3) of the 2023 Rule (for example, if they are not 
tributaries connected to waters identified in paragraph (a)(1) or 
(2)) and they are relatively permanent, standing or continuously 
flowing bodies of water with a continuous surface connection to the 
waters identified in paragraph (a)(1) or (3).
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    Finally, the agencies are removing ``interstate wetlands'' from the 
2023 Rule to conform with the decision in Sackett. The Supreme Court in 
Sackett examined the Clean Water Act and its statutory history and 
found the predecessor statute to the Clean Water Act covered and 
defined ``interstate waters'' as ``all rivers, lakes, and other waters 
that flow across or form a part of State boundaries.'' Sackett at 1337 
(citing 33 U.S.C. 1160(a), 1173(e) (1970 ed.) (emphasis in original)). 
The Court concluded that the use of the term ``waters'' refers to such 
``open waters'' and not wetlands. Id. As a result, under Sackett, the 
provision authorizing wetlands to be jurisdictional simply because they 
are interstate is invalid.
    The agencies will continue to interpret the remainder of the 
definition of ``waters of the United States'' in the 2023 Rule 
consistent with the Sackett decision. And it is both reasonable and 
appropriate for the agencies to promulgate this rule in response to a 
significant decision of the Supreme Court and, to provide 
administrative guidance to address other issues that may arise outside 
this limited rule. See County of Maui, Hawaii v. Hawaii Wildlife Fund, 
140 S. Ct. 1462, 1476 (2020) (``EPA, too, can provide administrative 
guidance (within statutory boundaries) in numerous ways, including 
through, for example, grants of individual permits, promulgation of 
general permits, or the development of general rules.''). The agencies 
have a wide range of available approaches to address such issues, 
including: approved jurisdictional determinations and Clean Water Act 
permits (both of which are final agency actions subject to judicial 
review); guidance; notice and comment rulemaking; and, agency forms and 
training materials. The agencies intend to hold stakeholder meetings to 
ensure the public has an opportunity to provide the agencies with input 
on other issues they would like the agencies to address. The agencies 
are also committed to taking particular actions that have been 
requested by stakeholders to improve implementation of the definition 
of ``waters of the United States.'' For example, the agencies are 
working to improve coordination among Federal agencies through 
coordination memoranda and trainings. The agencies are also developing 
regionally-specific tools to facilitate implementation of the 
definition of ``waters of the United States.'' The agencies will 
continue to provide trainings to Tribes, States, and the public as 
appropriate to promote clarity and consistency. The agencies will 
continue to post materials and outreach opportunities to EPA's website 
at https://www.epa.gov/wotus.

II. Which provisions are amended?

    This final rule amends the following provisions in the 2023 Rule: 
40 CFR 120.2(a)(1)(iii), (a)(3) through (5), (c)(2) and (6), and 33 CFR 
328.3(a)(1)(iii), (a)(3) through (5), (c)(2) and (6). A list of these 
revisions is provided below.
     40 CFR 120.2(a)(1)(iii) and 33 CFR 328.3(a)(1)(iii): 
Removed the phrase ``including interstate wetlands'' from this 
provision. Made conforming edits to the regulatory text.
     40 CFR 120.2(a)(3) and 33 CFR 328.3(a)(3): Removed the 
significant nexus standard from the tributaries provision. Made 
conforming edits to the regulatory text.
     40 CFR 120.2(a)(4) and 33 CFR 328.3(a)(4): Removed the 
significant nexus standard from the adjacent wetlands provision. Made 
conforming edits to the regulatory text.
     40 CFR 120.2(a)(5) and 33 CFR 328.3(a)(5): Removed the 
significant nexus standard and streams and wetlands from the provision 
for intrastate lakes and ponds, streams, or wetlands not otherwise 
identified in the definition. Made conforming edits to the regulatory 
text.
     40 CFR 120.2(c)(2) and 33 CFR 328.3(c)(2): Revised the 
definition of ``adjacent''. Note that the agencies recognize that 
revising the definition of adjacent creates redundancy in 40 CFR 
120.2(a)(4) and 33 CFR 328.3(a)(4), which already include the 
requirement for a ``continuous surface connection,'' but deleting 
existing regulatory text to reduce redundancy is outside the scope of 
the agencies' determination in this rule that there is good cause under 
APA section 553(b)(B) to issue this final rule without prior proposal 
and opportunity for comment.
     40 CFR 120.2(c)(6) and 33 CFR 328.3(c)(6): Removed the 
term ``significantly affect'' and its definition in its entirety.

III. Severability

    The purpose of this section is to clarify the agencies' intent with 
respect to the severability of provisions of this

[[Page 61967]]

rule and the 2023 Rule as amended by this final rule in the event of 
litigation. In the event of a stay or invalidation of any part of this 
rule, the agencies' intent is to preserve the remaining portions of the 
rule to the fullest possible extent. Further, if any part of the 2023 
Rule as amended by this rule is stayed or invalidated, the agencies' 
intent is to preserve its remaining portions to the fullest possible 
extent. The agencies explained in the 2023 Rule that it was carefully 
crafted so that each provision or element of the rule is capable of 
operating independently. 88 FR 3135. None of the amendments made in 
this rule affects the 2023 Rule's severability or undermines the 
ability of each part of this rule or the remaining parts of the 2023 
Rule to operate independently.
    The exclusive purpose of the 2023 Rule was to define ``waters of 
the United States,'' and this rule simply conforms that definition to 
Sackett. ``Waters of the United States'' is defined in paragraphs 
(a)(1) through (5), subject to the exclusions in paragraph (b), and 
using terms defined in paragraph (c). The categories in paragraphs 
(a)(1) through (5) are disjunctive, and while they may overlap, no one 
category (or subcategory) depends on another. The modifications to the 
2023 Rule in this rule do not alter those basic features of the 
regulatory text. Therefore, if any provision or element of this rule or 
of the 2023 Rule as amended by this rule is determined by judicial 
review or operation of law to be invalid, that partial invalidation 
will not render the remainder of this rule or the 2023 Rule, as 
amended, invalid. Further, if the application of any portion of this 
rule or the 2023 Rule, as amended by this rule, to a particular 
circumstance is determined to be invalid, the agencies intend that this 
rule and the 2023 Rule, as amended, remain applicable to all other 
circumstances.
    For example, if paragraph (c)(2), which contains the revised 
definition of ``adjacent,'' were deemed invalid, it would affect 
implementation of paragraph (a)(4), which addresses ``adjacent 
wetlands,'' but it would not affect any other provision of this rule 
(or the 2023 Rule, as amended), all of which would continue to operate. 
As another example, if paragraph (a)(1)(iii), which provides that 
interstate waters (amended by this rule to no longer include interstate 
wetlands) are ``waters of the United States,'' were deemed invalid, 
every other provision of this rule (and the 2023 Rule as amended) could 
continue to operate. References to paragraph (a)(1) in paragraphs 
(a)(3) through (5), and paragraph (c)(2) would remain in effect, and 
paragraph (a)(1) would simply be read to consist of paragraphs 
(a)(1)(i) and (ii), without paragraph (a)(1)(iii) in whole or in part. 
As a third example, if one of the exclusions from ``waters of the 
United States'' in paragraph (b), or any part of one of the exclusions, 
were deemed invalid, the remainder of this rule, and thus, the 2023 
Rule as amended, would remain in effect. The rationale for each 
exclusion in paragraph (b) is distinct and invalidating one exclusion 
would not have any practical impact on any other part of the definition 
of ``waters of the United States.''

IV. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is a significant regulatory action as defined in 
Executive Order 12866, as amended by Executive Order 14094. 
Accordingly, the agencies submitted this action to the Office of 
Management and Budget (OMB) for Executive Order 12866 review. 
Documentation of any changes made in response to the Executive Order 
12866 review is available in the docket.
    This conforming rule amends the provisions of the agencies' 
definition of ``waters of the United States'' that are invalid under 
the Supreme Court's interpretation of the Clean Water Act in Sackett. 
As such, it is the agencies' view that the rule does not by itself 
impose cost savings or forgone benefits.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because it does not contain any information collection 
activities. However, this action may change terms and concepts used by 
EPA and Army to implement certain programs. The agencies thus may need 
to revise some of their collections of information to be consistent 
with this action and will do so consistent with the PRA and 
implementing regulations.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
APA, 5 U.S.C. 553, or any other statute. This rule is not subject to 
notice and comment requirements because the agencies have invoked the 
APA ``good cause'' exemption under 5 U.S.C. 553(b).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The definition of ``waters of the United States'' 
applies broadly to Clean Water Act programs, and this rule amending the 
definition of ``waters of the United States'' simply conforms to a 
decision of the Supreme Court. The action imposes no enforceable duty 
on any Tribal, State, or local governments, or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government.
    This conforming rule amends the provisions of the agencies' 
definition of ``waters of the United States'' that are invalid under 
the Supreme Court's interpretation of the Clean Water Act in Sackett. 
Because the limited amendments in this rule do not involve the exercise 
of the agencies' discretion, federalism consultation would neither 
provide new information nor inform any agency decision-making regarding 
the aspects of the regulations defining ``waters of the United States'' 
that are invalid under the Supreme Court's interpretation of the Clean 
Water Act in Sackett. The agencies recognize, however, that changes to 
the definition of ``waters of the United States'' may be of interest to 
State and local governments. The agencies intend to hold discussions 
with State and local governments on implementation of the definition of 
``waters of the United States.''

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This rule amends the provisions of the agencies' definition of 
``waters of the United States'' that are invalid under the Supreme 
Court's interpretation of the Clean Water Act in Sackett. Because the 
amendments in this rule do not involve the exercise of the agencies' 
discretion, in this instance Tribal consultation and coordination could 
not inform the decision-making in this final rule. The agencies 
recognize, however, that changes to the definition of ``waters of the 
United States'' may be of interest

[[Page 61968]]

to Tribal governments. The agencies intend to hold discussions with 
Tribes on implementation of the definition of ``waters of the United 
States.''

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA and the Army interpret Executive Order 13045 as applying only 
to those regulatory actions that concern environmental health or safety 
risks that the agencies have reason to believe may disproportionately 
affect children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order.
    This conforming rule amends the provisions of the agencies' 
definition of ``waters of the United States'' that are invalid under 
the Supreme Court's interpretation of the Clean Water Act in Sackett. 
Because these amendments are necessary to conform to the Supreme 
Court's decision and do not involve the exercise of the agencies' 
discretion, the rule does not concern an environmental health risk or 
safety risk and is not subject to Executive Order 13045. Similarly, 
this action does not concern human health, and therefore EPA's Policy 
on Children's Health also does not apply.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    This rule does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on communities with environmental justice concerns. 
Executive Order 14096 (88 FR 25251, April 21, 2023) supplements the 
foundational efforts of Executive Order 12898 to address environmental 
justice.
    EPA and the Army believe that it is not necessary to assess whether 
this action would result in disproportionate and adverse effects on 
communities with environmental justice concerns, as this is a 
conforming rule and the targeted amendments made do not reflect an 
exercise of agency discretion. In prior analyses of potential 
distributional impacts of the 2023 Rule (see Economic Analysis for 
Final ``Revised Definition of `Waters of the United States' '' Rule, 
Docket ID No. EPA-HQ-OW-2021-0602-2489), the agencies examined whether 
the change in benefits due to that rule may be differentially 
distributed among communities with environmental justice concerns in 
the affected areas when compared to two baselines--the primary baseline 
of the pre-2015 regulatory regime and the secondary baseline of the 
2020 Navigable Waters Protection Rule. In that prior analysis, for most 
of the wetlands and affected waters impacted at a hydrologic unit code 
(HUC) \3\ 12 watershed level, there was no evidence of potential 
environmental justice impacts from the 2023 Rule warranting further 
analysis when compared to both baselines.
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    \3\ HUC boundaries are established by the U.S. Geological Survey 
and Natural Resources Conservation Service. These boundaries are 
numbered using nested codes to represent the scale of the watershed 
size. For example, HUC 12 watersheds are smaller than HUC 4 
watersheds.
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    The agencies recognize that the burdens of environmental pollution 
and climate change often fall disproportionately on communities with 
environmental justice concerns. Climate change will exacerbate the 
existing risks faced by communities with environmental justice 
concerns. However, this conforming rule merely amends the provisions of 
the agencies' definition of ``waters of the United States'' that are 
invalid under the Supreme Court's interpretation of the Clean Water Act 
in Sackett. As noted above, these amendments on their own do not result 
in any cost savings or forgone benefits not directed by the operation 
of law. Because this rule does not involve the exercise of the 
agencies' discretion, the agencies did not engage with communities with 
environmental justice concerns in developing this action.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the agencies will submit a 
rule report to each House of the Congress and to the Comptroller 
General of the United States. This action is not a ``major rule'' as 
defined by 5 U.S.C. 804(2). The CRA allows the issuing agency to make a 
rule effective sooner than otherwise would be provided by the CRA if 
the agency makes a good cause finding that notice and comment public 
rulemaking procedures are impracticable, unnecessary, or contrary to 
the public interest (5 U.S.C. 808(2)). The agencies have made a good 
cause finding for this rule as discussed in section I of this preamble, 
including the basis for that finding.

List of Subjects

33 CFR Part 328

    Administrative practice and procedure, Environmental protection, 
Navigation (water), Water pollution control, Waterways.

40 CFR Part 120

    Environmental protection, Water pollution control, Waterways.

Michael L. Connor,
Assistant Secretary of the Army (Civil Works), Department of the Army.
Michael S. Regan,
Administrator, Environmental Protection Agency.

Title 33--Navigation and Navigable Waters

    For the reasons set out in the preamble, 33 CFR part 328 is amended 
as follows:

PART 328--DEFINITION OF WATERS OF THE UNITED STATES

0
1. The authority citation for part 328 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.


0
2. Section 328.3 is amended by:
0
a. Revising paragraphs (a)(1)(iii), (a)(3), and (a)(4)(ii);
0
b. Removing paragraph (a)(4)(iii);
0
c. Revising paragraphs (a)(5) and (c)(2); and
0
d. Removing paragraph (c)(6).
    The revisions read as follows:


Sec.  328.3  Definitions.

* * * * *
    (a) * * *
    (1) * * *
    (iii) Interstate waters;
* * * * *
    (3) Tributaries of waters identified in paragraph (a)(1) or (2) of 
this section that are relatively permanent, standing or continuously 
flowing bodies of water;
    (4) * * *
    (ii) Relatively permanent, standing or continuously flowing bodies 
of water identified in paragraph (a)(2) or (a)(3) of this section and 
with a continuous surface connection to those waters;
    (5) Intrastate lakes and ponds not identified in paragraphs (a)(1) 
through (4) of this section that are relatively

[[Page 61969]]

permanent, standing or continuously flowing bodies of water with a 
continuous surface connection to the waters identified in paragraph 
(a)(1) or (a)(3) of this section.
* * * * *
    (c) * * *
    (2) Adjacent means having a continuous surface connection.
* * * * *

Title 40--Protection of Environment

    For reasons set out in the preamble, 40 CFR part 120 is amended as 
follows:

PART 120--DEFINITION OF WATERS OF THE UNITED STATES

0
3 The authority citation for part 120 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.


0
4. Section 120.2 is amended by:
0
a. Revising paragraphs (a)(1)(iii), (a)(3), and (a)(4)(ii);
0
b. Removing paragraph (a)(4)(iii);
0
c. Revising paragraphs (a)(5) and (c)(2); and
0
d. Removing paragraph (c)(6).
    The revisions read as follows:


Sec.  120.2  Definitions.

* * * * *
    (a) * * *
    (1) * * *
    (iii) Interstate waters;
* * * * *
    (3) Tributaries of waters identified in paragraph (a)(1) or (2) of 
this section that are relatively permanent, standing or continuously 
flowing bodies of water;
    (4) * * *
    (ii) Relatively permanent, standing or continuously flowing bodies 
of water identified in paragraph (a)(2) or (a)(3) of this section and 
with a continuous surface connection to those waters;
    (5) Intrastate lakes and ponds not identified in paragraphs (a)(1) 
through (4) of this section that are relatively permanent, standing or 
continuously flowing bodies of water with a continuous surface 
connection to the waters identified in paragraph (a)(1) or (a)(3) of 
this section.
* * * * *
    (c) * * *
    (2) Adjacent means having a continuous surface connection.
* * * * *
[FR Doc. 2023-18929 Filed 9-7-23; 8:45 am]
BILLING CODE 6560-50-P


