61964 Federal Register / Vol. 88, No. 173 / Friday, September 8, 2023 / Rules and Regulations 

1These notifications of enforcement of the 

regulation can be found at: https://regulations.gov 

by searching for docket number USCG–2023–0719, 

and USCG–2023–0757. 

Jacksonville, Florida. The Coast Guard 

is activating these safety zones in order 

to protect vessels and waterway users 

from the potential hazards created by 

reentry vehicle splashdowns and 

recovery operations. In accordance with 

the general regulations in 33 CFR part 

165, subpart C, no U.S.-flagged vessel 

may enter the safety zones unless 

authorized by the COTP Savannah or a 

designated representative except as 

provided in § 165.T07–0806(d)(3). All 

foreign-flagged vessels are encouraged 

to remain outside the safety zones. 

There are four other safety zones 

listed in § 165.T07–0806(a)(2) through 

(a)(5), which are located within the 

COTP St. Petersburg and Jacksonville 

AORs, that are being simultaneously 

activated through separate notifications 

of enforcement of the regulation 

document issued under Docket 

Numbers USCG–2023–0719, and USCG– 

2023–0757.1

Twenty-four hours prior to the Crew6 recovery operations, the COTP 

Jacksonville, the COTP Savannah, the 

COTP St. Petersburg, or designated 

representative will inform the public 

that whether any of the five safety zones 

described in § 165.T07–0806, paragraph 

(a), will remain activated (subject to 

enforcement). If one of the safety zones 

described in § 165.T07–0806, paragraph 

(a), remains activated it will be enforced 

for four hours prior to the Crew-6 

splashdown and remain activated until 

announced by Broadcast Notice to 

Mariners on VHF–FM channel 16, 

and/or Marine Safety Information 

Bulletin (as appropriate) that the safety 

zone is no longer subject to 

enforcement. After the Crew-6 reentry 

vehicle splashdown, the COTP or a 

designated representative will grant 

general permission to come no closer 

than 3 nautical miles of any reentry 

vehicle or space support vessel engaged 

in the recovery operations, within the 

activated safety zone described in 

§ 165.T07–0806, paragraph (a). Once the 

reentry vehicle, and any personnel 

involved in reentry service, are removed 

from the water and secured onboard a 

space support vessel, the COTP or 

designated representative will issue a 

Broadcast Notice to Mariners on VHF– 

FM channel 16 announcing the 

activated safety zone is no longer 

subject to enforcement. The recovery 

operations are expected to last 

approximately one hour. 

The Coast Guard may be assisted by 

other Federal, State, or local law 

enforcement agencies in enforcing this 

regulation. 

Dated: September 1, 2023. 

Nathaniel L. Robinson, 

Commander, U.S. Coast Guard, Captain of 

the Port Savannah. 

[FR Doc. 2023–19392 Filed 9–7–23; 8:45 am] 

BILLING CODE 9110–04–P 

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. 

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: 

CWAwotus@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 20310–0104; telephone 

number: (703) 459–6026; email address: 

usarmy.pentagon.hqda-asa-cw.mbx.asacw-reporting@army.mil. 

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 


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1As 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). 

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 decisionmaking 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

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 


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2Lakes 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). 

‘‘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

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 


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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/lawsregulations/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 


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61968 Federal Register / Vol. 88, No. 173 / Friday, September 8, 2023 / Rules and Regulations 

3HUC 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. 

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. 

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 

■ 1. The authority citation for part 328 

continues to read as follows: 

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

■ 2. Section 328.3 is amended by: 

■ a. Revising paragraphs (a)(1)(iii), 

(a)(3), and (a)(4)(ii); 

■ b. Removing paragraph (a)(4)(iii); 

■ c. Revising paragraphs (a)(5) and 

(c)(2); and 

■ d. Removing paragraph (c)(6). 

The revisions read as follows: 

§ 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 


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Federal Register / Vol. 88, No. 173 / Friday, September 8, 2023 / Rules and Regulations 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 

■ 3 The authority citation for part 120 

continues to read as follows: 

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

■ 4. Section 120.2 is amended by: 

■ a. Revising paragraphs (a)(1)(iii), 

(a)(3), and (a)(4)(ii); 

■ b. Removing paragraph (a)(4)(iii); 

■ c. Revising paragraphs (a)(5) and 

(c)(2); and 

■ d. Removing paragraph (c)(6). 

The revisions read as follows: 

§ 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2022–0580; FRL–11047– 

02–R5] 

Air Plan Approval; Ohio; Approval of 

the Muskingum River SO2 Attainment 

Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving, under the 

Clean Air Act (CAA), a revision to the 

Ohio State Implementation Plan (SIP) 

intended to provide for attainment of 

the 2010 primary, health-based 1-hour 

sulfur dioxide (SO2) national ambient 

air quality standard (NAAQS or 

standard) for the Muskingum River SO2

nonattainment area. This SIP revision 

(hereinafter referred to as Ohio’s 

Muskingum River SO2 attainment plan 

or plan), includes Ohio’s attainment 

demonstration and other attainment 

planning elements required under the 

CAA. EPA is finding that Ohio has 

appropriately demonstrated that the 

plan provides for attainment of the 2010 

1-hour primary SO2 NAAQS in the 

Muskingum River, Ohio nonattainment 

area and that the plan meets the other 

applicable requirements under the CAA. 

EPA is also incorporating by reference 

Ohio Director’s Final Findings and 

Orders (DFFOs), issued on May 23, 

2023, into the Ohio SIP. The DFFOs set 

forth additional requirements at Globe 

Metallurgical (Globe) to verify 

appropriate source characterization for 

modeling purposes. 

DATES: This final rule is effective on 

October 10, 2023. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2022–0580. All 

documents in the docket are listed on 

the www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

i.e., 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 either through 

www.regulations.gov or at the 

Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays and 

facility closures due to COVID–19. We 

recommend that you telephone Gina 

Harrison, Environmental Scientist, at 

(312) 353–6956 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: Gina 

Harrison, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 353–6956, harrison.gina@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

I. Background 

On January 18, 2022 (87 FR 2555), 

EPA partially approved and partially 

disapproved Ohio’s SO2 plan for the 

Muskingum River area submitted on 

April 3, 2015, and October 13, 2015, and 

supplemented on June 23, 2020. EPA’s 

January 18, 2022, final rule provided an 

explanation of the applicable provisions 

in the CAA and the measures and 

limitations identified in Ohio’s 

attainment plan to satisfy these 

provisions. 

The partial disapproval started 

sanctions clocks for this area under 

CAA section 179(a)–(b), including a 

requirement for 2-for-1 offsets for any 

major new sources or major 

modifications 18 months after the 

effective date of this action, and 

highway funding sanctions 6 months 

thereafter, as well as initiated an 

obligation for EPA to promulgate a 

Federal Implementation Plan (FIP) 

within 24 months, under CAA section 

110(c). 

Ohio supplemented the attainment 

demonstration on June 24, 2022, 

substituting new measures in lieu of a 

land acquisition and modifying the air 

quality modeling to include the use of 

site-specific meteorological data. Ohio 

submitted additional supplemental 

information on July 28, 2022, and May 

23, 2023, including revised DFFOs for 

Globe, issued on May 23, 2023, that 

supersede the June 23, 2020 DFFOs. 

II. Proposed Rule 

On June 22, 2023 (88 FR 40726), EPA 

proposed to approve Ohio’s SIP 

attainment plan submission for the 

Muskingum River SO2 nonattainment 

area, which the state submitted to EPA 

on April 3, 2015, October 13, 2015, and 

June 23, 2020, and supplemented on 

June 24, 2022, July 28, 2022, and May 

23, 2023. The SO2 attainment plan 

included Ohio’s attainment 


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