2024-06829. Submission for OMB Review; Comment Request

AGENCY:

U.S. Army Corps of Engineers (USACE), Department of the Army, Department of Defense (DoD).

ACTION:

30-Day information collection notice.

SUMMARY:

The DoD has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.

DATES:

Consideration will be given to all comments received by May 1, 2024.

ADDRESSES:

Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to www.reginfo.gov/​public/​do/​PRAMain. Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.

FOR FURTHER INFORMATION CONTACT:

Reginald Lucas, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Title; Associated Form; and OMB Number: Jurisdictional Determination Forms and Aquatic Resources Delineation Forms; ENG Forms 6116 (0-9), 6245-6250, 6281 (0-2); OMB Control Number 0710-0024.

Type of Request: Extension.

Request for Corps Jurisdictional Determination (ENG 6247)

Number of Respondents: 16,891.

Responses per Respondent: 1.

Annual Responses: 16,891.

Average Burden per Response: 10 minutes.

Annual Burden Hours: 2,815.

Approved Jurisdictional Determination Forms (ENG 6245, 6248, & 6281)

Number of Respondents: 668.

Responses per Respondent: 1.

Annual Responses: 668.

Average Burden per Response: 150 minutes.

Annual Burden Hours: 1,670.

Rapanos Dry Land AJD Form (ENG 6246)

Number of Respondents: 243.

Responses per Respondent: 1.

Annual Responses: 243.

Average Burden per Response: 15 minutes.

Annual Burden Hours: 61.

Preliminary JD Form (ENG 6249)

Number of Respondents: 1,500.

Responses per Respondent: 1.

Annual Responses: 1,500.

Average Burden per Response: 25 minutes.

Annual Burden Hours: 625.

Ordinary High Water Mark Data Sheet (ENG 6250)

Number of Respondents: 39,980.

Responses per Respondent: 1.

Annual Responses: 39,980.

Average Burden per Response: 30 minutes.

Annual Burden Hours: 19,990.

Automated Wetland Data Sheets (ENG 6116 (0-9))

Number of Respondents: 48,692.

Responses per Respondent: 2.

Annual Responses: 97,384.

Average Burden per Response: 30 minutes.

Annual Burden Hours: 48,692.

Total

Number of Respondents: 107,974.

Annual Responses: 156,666.

Annual Burden Hours: 73,853.

Frequency: On Occasion.

Needs and Uses:

Jurisdictional Determination Forms

The USACE (Corps), through its Regulatory Program, regulates certain activities in waters of the United States (WOTUS), pursuant to section 404 of the Clean Water Act (CWA). WOTUS are defined under 33 CFR part 328. The Corps also regulates certain activities in “navigable WOTUS” pursuant to sections 9 and 10 of the Rivers and Harbors Act of 1899 (RHA). The Corps has authorized its district engineers to issue formal determinations concerning the applicability of the CWA or the RHA to tracts of land. (See 33 CFR 320.1(a)(6)). These formal determinations concerning the applicability of the CWA or RHA to tracts of land are known as “jurisdictional determinations.” Approved jurisdictional determinations (AJDs) and preliminary JDs (PJDs) are tools used by the Corps to help implement section 404 of the CWA (33 U.S.C. 1344) and sections 9 and 10 of the RHA (33 U.S.C. 401, et seq.). Both types of JDs specify what geographic areas will be treated as subject to regulation by the Corps under one or both statutes.

On August 29, 2023, the U.S. Environmental Protection Agency and Department of the Army (the agencies) issued a final rule to amend the final “Revised Definition of `WOTUS' ” rule, published in the Federal Register on January 18, 2023. This final rule conforms the definition of “WOTUS” to the U.S. Supreme Court's May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. Parts of the January 2023 rule are invalid under the Supreme Court's interpretation of the CWA in the Sackett decision. Therefore, the agencies have amended key aspects of the regulatory text to conform it to the Court's decision. The conforming rule, “Revised Definition of 'WOTUS'; Conforming,” published in the Federal Register and became effective on September 8, 2023.

As a result of ongoing litigation on the January 2023 rule, the agencies are currently implementing the January 2023 rule, as amended by the conforming rule, in 23 states, the District of Columbia, and the U.S. Territories. In the other 27 states and for certain parties, the agencies are interpreting “WOTUS” consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett until further notice.

This information collection request thus implements the collections of information associated with the Corps' implementation of the 2023 rule, as amended, and the pre-2015 regime consistent with Sackett. The Corps intends to implement the 2023 Conforming Rule and the pre-2015 regime consistent with Sackett using two forms, which consist of the Preliminary Jurisdictional Determination Form (PJD Form) and a “JD Request Form.” Under the most recent regulatory regimes (the September 2023 Conforming Rule and the pre-2015 regime consistent with Sackett), the Corps has elected to use a Memorandum for Record (MFR) instead of a JD “form” to document the basis of its jurisdictional decisions under those two regimes. While we are including four separate AJD Forms in this package, including (1) the “pre-2015 regime (a.k.a., “Rapanos”)” AJD Form, (2) The pre-2015/Rapanos “dry land” AJD Form, (3) the 2020 NWPR AJD Form, and (4) the January 2023 rule AJD Form, none of those four AJD Forms are currently in use. Even though these four forms are not currently in use, they are included in this collection for historical purposes. Therefore, there a total of six JD forms (the PJD Form, the JD Request Form, and the 4 historical AJD Forms) in this collection.

Aquatic Resource Delineation Datasheets

In order for the Corps to determine the amount and extent of aquatic resources at a site, the Corps must geographically delineate aquatic resources in accordance with established regulations, policy, and guidance. The aquatic resource delineation datasheets fall into two main categories: (1) the ENG 6119 (0-9) series, which are our automated wetland determination data sheets (ADS) and (2) the Ordinary High-Water Mark (OHWM) field identification datasheet.

To delineate wetlands, the Corps uses the 1987 Corps of Engineers Wetlands Delineation Manual (Corps Manual) and the most current applicable regional supplements. There are ten wetland data sheets in total, but these really are one single collection that is split into 10 regional sub-forms. The ADSs streamline the information collection process by incorporating reference material and analytical processes directly into the form, which is provided as a Microsoft Excel document rather than the PDF form included in the regional supplements. Additionally, the ADSs automate data analysis using information input by the respondent ( e.g., the “dominance test” for wetland vegetation), which reduces the time and effort required to complete these processes.

Non-tidal, non-wetland WOTUS, which are defined in 33 CFR part 328, must be delineated to the extent of the ordinary high-water mark OHWM, which is defined at 33 CFR 328.3(c)(4) and 33 CFR 329.11(a)(1). Regulatory Guidance Letter (RGL) 05-05 provides guidance on identification of OHWM. In 2022, the Corps released a draft Engineer Research and Development Center Technical Report, “National Ordinary High Water Mark Field Delineation Manual for Rivers and Streams” (Draft National Manual), which is the first national manual that provides and describes indicators and a methodology to help improve consistency in the identification and delineation of the OHWM by (1) providing consistent definitions of OHWM indicators; (2) outlining a clear, step-by-step process for identifying the OHWM using a Weight-of-Evidence approach; and (3) providing a datasheet for logging information at a site. As part of the development of the Draft National Manual, the Corps developed a Data Sheet (ENG 6250) for facilitating documentation of the OHWM.

Affected Public: Individuals or households.

Frequency: On occasion.

Respondent's Obligation: Voluntary.

OMB Desk Officer: Mr. Matthew Oreska.

You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Instructions: All submissions received must include the agency name, Docket ID number, and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

DOD Clearance Officer: Mr. Reginald Lucas.

Requests for copies of the information collection proposal should be sent to Mr. Lucas at [e-mail].

Dated: March 26, 2024.

Aaron T. Siegel,

Alternate OSD Federal Register Liaison Officer, Department of Defense.