[Federal Register Volume 68, Number 10 (Wednesday, January 15, 2003)]
[Proposed Rules]
[Pages 1991-1998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-960]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 328

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, and 401

[FRL-7439-8]
RIN 2040-AB74


Advance Notice of Proposed Rulemaking on the Clean Water Act 
Regulatory Definition of ``Waters of the United States''

AGENCIES: U.S. Army Corps of Engineers, Department of the Army, DOD; 
and Environmental Protection Agency.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) and the Environmental 
Protection Agency (EPA) are today issuing an advance notice of proposed 
rulemaking (ANPRM) in order to obtain early comment on issues 
associated with the scope of waters that are subject to the Clean Water 
Act (CWA), in light of the U.S. Supreme Court decision in Solid Waste 
Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 
U.S. 159 (2001) (SWANCC).
    Today's ANPRM requests public input on issues associated with the 
definition of ``waters of the United States'' and also solicits 
information or data from the general public, the scientific community, 
and Federal and State resource agencies on the implications of the 
SWANCC decision for jurisdictional decisions under the CWA. The goal of 
the agencies is to develop proposed regulations that will further the 
public interest by clarifying what waters are subject to CWA 
jurisdiction and affording full protection to these waters through an 
appropriate focus of Federal and State resources consistent with the 
CWA. The input received from the public in response to today's ANPRM 
will be used by the agencies to determine the issues to be addressed 
and the substantive approach for a future proposed rulemaking 
addressing the scope of CWA jurisdiction.
    Pending this rulemaking, should questions arise, the regulated 
community should seek assistance from the Corps and EPA, in accordance 
with the joint memorandum attached as Appendix A.

DATES: In order to be considered, comments or information in response 
to this ANPRM must be postmarked or e-mailed on or before March 3, 
2003.

ADDRESSES: Comments may be submitted electronically, by mail, or 
through hand delivery/courier. Mail comments to: Water Docket, 
Environmental Protection Agency, Mailcode 4101T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460, Attention Docket ID No. OW-2002-0050.

FOR FURTHER INFORMATION CONTACT: For information on this ANPRM, contact 
either Donna Downing, U.S. Environmental Protection Agency, Office of 
Wetlands, Oceans and Watersheds (4502T), 1200 Pennsylvania Avenue N.W., 
Washington, DC 20460, phone: (202) 566-1366, e-mail: [email protected], 
or Ted Rugiel, U.S. Army Corps of Engineers, ATTN CECW-OR, 441 G Street 
NW., Washington, DC 20314-1000, phone: (202) 761-4595, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Potentially Regulated Entities

    Persons or entities that discharge pollutants (including dredged or 
fill material) to ``waters of the U.S.'' could be regulated by a 
rulemaking based on this ANPRM. The CWA generally prohibits the 
discharge of pollutants into ``waters of the U.S.'' without a permit 
issued by EPA or a State or Tribe approved by EPA under section 402 of 
the Act, or, in the case of dredged or fill material, by the Corps or 
an approved

[[Page 1992]]

State or Tribe under section 404 of the Act. In addition, under the 
CWA, States or approved Tribes establish water quality standards for 
``waters of the U.S.'', and also may assume responsibility for issuance 
of CWA permits for discharges into waters and wetlands subject to the 
Act. Today's ANPRM seeks public input on what, if any, revisions in 
light of SWANCC might be appropriate to the regulations that define 
``waters of the U.S.'', and today's ANPRM thus would be of interest to 
all entities discharging to, or regulating, such waters. In addition, 
because the Oil Pollution Act (OPA) is applicable to waters and 
wetlands subject to the CWA, today's ANPRM may have implications for 
persons or entities subject to the OPA. Examples of entities 
potentially regulated include:

------------------------------------------------------------------------
                                              Examples of  potentially
                 Category                        regulated  entities
------------------------------------------------------------------------
State/Tribal governments or                 State/Tribal agencies or
 instrumentalities.                          instrumentalities that
                                             discharge or spill
                                             pollutants into waters of
                                             the U.S.
Local governments or instrumentalities....  Local governments or
                                             instrumentalities that
                                             discharge or spill
                                             pollutants into waters of
                                             the U.S.
Federal government agencies or              Federal government agencies
 instrumentalities.                          or instrumentalities that
                                             discharge or spill
                                             pollutants into waters of
                                             the U.S.
Industrial, commercial, or agricultural     Industrial, commercial, or
 entities.                                   agricultural entities that
                                             discharge or spill
                                             pollutants into waters of
                                             the U.S.
Land developers and landowners............  Land developers and
                                             landowners that discharge
                                             or spill pollutants into
                                             waters of the U.S.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities that are likely to be regulated by 
a rulemaking based on this ANPRM. This table lists the types of 
entities that we are now aware of that could potentially be regulated. 
Other types of entities not listed in the table could also be 
regulated. To determine whether your organization or its activities 
could be regulated, you should carefully examine the discussion in this 
ANPRM. If you have questions regarding the applicability of this action 
to a particular entity, consult one of the persons listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. The agencies have established an official public docket 
for this action under Docket ID No. OW-2002-0050. The official public 
docket consists of the documents specifically referenced in this ANPRM, 
any public comments received, and other information related to this 
ANPRM. Although a part of the official docket, the public docket does 
not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. The official 
public docket is the collection of materials that is available for 
public viewing at the Water Docket in the EPA Docket Center, (EPA/DC) 
EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The 
EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the Water Docket is (202) 566-2426. You may have to pay a 
reasonable fee for copying.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select search, then 
key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in I.B.1.
    For those who submit public comments, it is important to note that 
EPA's policy is that public comments, whether submitted electronically 
or in paper, will be made available for public viewing in EPA's 
electronic public docket as EPA receives them and without change, 
unless the comment contains copyrighted material, CBI, or other 
information whose disclosure is restricted by statute. When EPA 
identifies a comment containing copyrighted material, EPA will provide 
a reference to that material in the version of the comment that is 
placed in EPA's electronic public docket. The entire printed comment, 
including the copyrighted material, will be available in the public 
docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

C. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number (OW-2002-0050) in the subject 
line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked late. The 
agencies are not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket,

[[Page 1993]]

and made available in EPA's electronic public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, the agencies may not be able to consider your 
comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. 
Once in the system, select search, and then key in Docket ID No. OW-
2002-0050. The system is an anonymous access system, which means EPA 
will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], Attention Docket ID No. OW-2002-0050. In contrast to 
EPA's electronic public docket, EPA's e-mail system is not an anonymous 
access system. If you send an e-mail comment directly to the Docket 
without going through EPA's electronic public docket, EPA's e-mail 
system automatically captures your e-mail address. E-mail addresses 
that are automatically captured by EPA's e-mail system are included as 
part of the comment that is placed in the official public docket, and 
made available in EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in I.C.2. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By Mail. Send four copies of your comments to: Water Docket, 
Environmental Protection Agency, Mailcode 4101T, 1200 Pennsylvania 
Ave., NW, Washington, DC 20460, Attention Docket ID No. OW-2002-0050.
    3. By Hand Delivery or Courier. Deliver your comments to: Water 
Docket, EPA Docket Center, EPA West, Room B102, 1301 Constitution 
Avenue, NW, Washington, DC, Attention Docket ID No. OW-2002-0050. Such 
deliveries are only accepted during the Docket's normal hours of 
operation as identified in I.B.1.

D. What Should I Consider as I Prepare My Comments?

    You may find the following suggestions helpful for preparing your 
comments:
    a. Explain your views as clearly as possible.
    b. Describe any assumptions that you used.
    c. Provide any technical information and/or data on which you based 
your views.
    d. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    e. Provide specific examples to illustrate your concerns.
    f. Offer alternatives.
    g. Make sure to submit your comments by the comment period deadline 
identified.
    h. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

II. The Importance of Updating the Regulations

    The agencies have not engaged in a review of the regulations with 
the public concerning CWA jurisdiction for some time. This ANPRM will 
help ensure that the regulations are consistent with the CWA and the 
public understands what waters are subject to CWA jurisdiction. The 
goal of the agencies is to develop proposed regulations that will 
further the public interest by clarifying what waters are subject to 
CWA jurisdiction and affording full protection to these waters through 
an appropriate focus of Federal and State resources consistent with the 
CWA. It is appropriate to review the regulations to ensure that they 
are consistent with the SWANCC decision. SWANCC eliminates CWA 
jurisdiction over isolated waters that are intrastate and non-
navigable, where the sole basis for asserting CWA jurisdiction is the 
actual or potential use of the waters as habitat for migratory birds 
that cross State lines in their migrations. SWANCC also calls into 
question whether CWA jurisdiction over isolated, intrastate, non-
navigable waters could now be predicated on the other factors listed in 
the ``Migratory Bird Rule'' or the other rationales of 33 CFR 
328.3(a)(3)(i)-(iii).
    Although the SWANCC case itself specifically involves section 404 
of the CWA, the Court's decision may also affect the scope of 
regulatory jurisdiction under other provisions of the CWA, including 
programs under sections 303, 311, 401, and 402. Under each of these 
sections, the relevant agencies have jurisdiction over ``waters of the 
United States.'' The agencies will consider the potential implications 
of the rulemaking for these other sections.
    [sbull] Section 404 dredged and fill material permit program. This 
program establishes a permitting system to regulate discharges of 
dredged or fill material into waters of the United States.
    [sbull] Section 303 water quality standards program. Under this 
program, States and authorized Indian Tribes establish water quality 
standards for navigable waters to ``protect the public health or 
welfare'' and ``enhance the quality of water'', ``taking into 
consideration their use and value for public water supplies, 
propagation of fish and wildlife, recreational purposes, and 
agriculture, industrial, and other purposes, and also taking into 
consideration their use and value for navigation.''
    [sbull] Section 311 spill program and the Oil Pollution Act (OPA). 
Section 311 of the CWA addresses pollution from both oil and hazardous 
substance releases. Together with the Oil Pollution Act, it provides 
EPA and the U.S. Coast Guard with the authority to establish a program 
for preventing, preparing for, and responding to spills that occur in 
navigable waters of the United States.
    [sbull] Section 401 State water-quality certification program. 
Section 401 provides that no Federal permit or license for activities 
that might result in a discharge to navigable waters may be issued 
unless a section 401 water-quality certification is obtained from or 
waived by States or authorized Tribes.
    [sbull] Section 402 National Pollutant Discharge Elimination System 
(NPDES) permitting program. This program establishes a permitting 
system to regulate point source discharges of pollutants (other than 
dredged or fill material) into waters of the United States.

III. Legislative and Regulatory Context

    The Federal Water Pollution Control Act Amendments, now known as 
the Clean Water Act (CWA), was enacted in 1972. In the years since its 
enactment, the scope of waters regulated under the CWA has been 
discussed in regulations, legislation, and judicial decisions.
    The CWA was intended to ``restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters.'' 33 U.S.C. 
1251(a). Its specific provisions were designed to improve upon the 
protection of the Nation's waters provided under earlier statutory 
schemes such as the Rivers and Harbors Act of 1899 (``RHA'') (33 U.S.C. 
403, 407, 411) and the Federal Water Pollution Control Act of 1948 (62 
Stat. 1155) and its subsequent amendments through 1970. In doing so, 
Congress recognized ``the primary responsibilities and rights of States 
to prevent, reduce,

[[Page 1994]]

and eliminate pollution, to plan the development and use (including 
restoration, preservation, and enhancement) of land and water resources 
* * *'' 33 U.S.C. 1251(b).
    The jurisdictional scope of the CWA is ``navigable waters,'' 
defined in the statute as ``waters of the United States, including the 
territorial seas.'' CWA section 502(7), 33 U.S.C. 1362(7). The existing 
CWA section 404 regulations define ``waters of the United States'' as 
follows:
    (1) All waters which are currently used, or were used in the past, 
or may be susceptible to use in interstate or foreign commerce, 
including all waters which are subject to ebb and flow of the tide;
    (2) All interstate waters including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, wetlands, 
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, 
the use, degradation or destruction of which could affect interstate or 
foreign commerce including any such waters:
    (i) which are or could be used by interstate or foreign travelers 
for recreational or other purposes; or
    (ii) from which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or
    (iii) which are used or could be used for industrial purposes by 
industries in interstate commerce.
    (4) All impoundments of waters otherwise defined as waters of the 
United States under the definition;
    (5) Tributaries of waters identified in paragraphs (a)(1)-(4) of 
this section;
    (6) The territorial seas;
    (7) Wetlands adjacent to waters (other than waters that are 
themselves wetlands) identified in paragraphs (a)(1)-(6) of this 
section.
    (8) Waters of the United States do not include prior converted 
cropland ... Waste treatment systems, including treatment ponds or 
lagoons designed to meet the requirements of CWA (other than cooling 
ponds ...) are not waters of the United States. 40 CFR.230.3(s); 33 CFR 
328.3(a).
    Counterpart and substantively similar regulatory definitions appear 
at 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 232.2, 300.5, part 300 
App. E, 302.3 and 401.11 (hereafter referred to as ``the counterpart 
definitions'').
    In regulatory preambles, both the Corps and EPA provided examples 
of additional types of links to interstate commerce which might serve 
as a basis under 40 CFR 230.3(a)(3) and 33 CFR 328.3(a)(3) for 
establishing CWA jurisdiction over intrastate waters which were not 
part of the tributary system or their adjacent wetlands. These included 
use of waters (1) as habitat by birds protected by Migratory Bird 
Treaties or which cross State lines, (2) as habitat for endangered 
species, or (3) to irrigate crops sold in commerce. 51 FR 41217 
(November 13, 1986), 53 FR 20765 (June 6, 1988). These examples became 
known as the ``Migratory Bird Rule,'' even though the examples were 
neither a rule nor entirely about birds. The Migratory Bird Rule later 
became the focus of the SWANCC case.

IV. Potential Natural Resource Implications

    To date, some quantitative studies and anecdotal data provide early 
estimates of potential resource implications of the SWANCC decision. 
One of the purposes of the ANPRM is to solicit additional information, 
data, or studies addressing the extent of resource impacts to isolated, 
intrastate, non-navigable waters.
    Non-navigable intrastate isolated waters occur throughout the 
country. Their extent depends on a variety of factors including 
topography, climate, and hydrologic forces. Preliminary assessments of 
potential resource impacts vary widely depending on the scenarios 
considered. See, e.g., Ducks Unlimited, ``The SWANCC Decision: 
Implications for Wetlands and Waterfowl'' (September 2001) (available 
at http://www.ducks.org/conservation/404_report.asp); ASWM, ``SWANCC 
Decision and the State Regulation of Wetlands,'' (June 2001) (available 
at http://www.aswm.org).
    There is an extensive body of knowledge about the functions and 
values of wetlands, which include flood risk reduction, water quality 
improvement, fish and wildlife habitat, and maintenance of the 
hydrologic integrity of aquatic ecosystems. The ANPRM seeks information 
regarding the functions and values of wetlands and other waters that 
may be affected by the issues discussed in this ANPRM.

V. Solicitation of Comments

    The agencies are seeking comment on issues related to the 
jurisdictional status of isolated waters under the CWA which the public 
wishes to call to our attention. To assist the public in considering 
these issues, the following discussion and specific questions are 
presented. The agencies will carefully consider the responses received 
to this ANPRM in determining what regulatory changes may be appropriate 
and the issues to be addressed in a proposed rulemaking to clarify CWA 
jurisdiction.
    The SWANCC holding eliminates CWA jurisdiction over isolated, 
intrastate, non-navigable waters where the sole basis for asserting CWA 
jurisdiction is the actual or potential use of the waters as habitat 
for migratory birds that cross State lines in their migrations. 531 
U.S. at 174 (``We hold that 33 CFR 328.3(a)(3) (1999), as clarified and 
applied to petitioner's balefill site pursuant to the ``Migratory Bird 
Rule,'' 51 FR 41217 (1986), exceeds the authority granted to 
respondents under section 404(a) of the CWA.''). The agencies seek 
comment on the use of the factors in 33 CFR 328.3(a)(3)(i)-(iii) or the 
counterpart regulations in determining CWA jurisdiction over isolated, 
intrastate, non-navigable waters.
    The agencies solicit comment from the public on the following 
issues:
    (1) Whether, and, if so, under what circumstances, the factors 
listed in 33 CFR 328.3(a)(3)(i)-(iii) (i.e., use of the water by 
interstate or foreign travelers for recreational or other purposes, the 
presence of fish or shellfish that could be taken and sold in 
interstate commerce, the use of the water for industrial purposes by 
industries in interstate commerce) or any other factors provide a basis 
for determining CWA jurisdiction over isolated, intrastate, non-
navigable waters?
    (2) Whether the regulations should define ``isolated waters,'' and 
if so, what factors should be considered in determining whether a water 
is or is not isolated for jurisdictional purposes?
Solicitation of Information
    In answering the questions set forth above, please provide, as 
appropriate, any information (e.g., scientific and technical studies 
and data, analysis of environmental impacts, effects on interstate 
commerce, other impacts, etc.) supporting your views, and specific 
recommendations on how to implement such views. Additionally, we invite 
your views as to whether any other revisions are needed to the existing 
regulations on which waters are jurisdictional under the CWA. As noted 
elsewhere in this document, the agencies are also soliciting data and 
information on the availability and effectiveness of other Federal or 
State programs for the protection of aquatic resources, and on the 
functions and values of wetlands and other waters that may be affected 
by the issues discussed in this ANPRM.

VI. Related Federal and State Authorities

    The SWANCC decision addresses CWA jurisdiction, and other Federal 
or

[[Page 1995]]

State laws and programs may still protect a water and related ecosystem 
even if that water is no longer jurisdictional under the CWA following 
SWANCC. The Federal government remains committed to wetlands protection 
through the Food Security Act's Swampbuster requirements and Federal 
agricultural program benefits and restoration through such Federal 
programs as the Wetlands Reserve Program (administered by the U.S. 
Department of Agriculture), grant making programs such as Partners in 
Wildlife (administered by the Fish and Wildlife Service), the Coastal 
Wetlands Restoration Program (administered by the National Marine 
Fisheries Service), the State Grant, Five Star Restoration, and 
National Estuary Programs (administered by EPA), and the Migratory Bird 
Conservation Commission (composed of the Secretaries of Interior and 
Agriculture, the Administrator of EPA and Members of Congress).
    The SWANCC decision also highlights the role of States in 
protecting waters not addressed by Federal law. Prior to SWANCC, 
fifteen States had programs that addressed isolated wetlands. Since 
SWANCC, additional States have considered, and two have adopted, 
legislation to protect isolated waters. The Federal agencies have a 
number of initiatives to assist States in these efforts to protect 
wetlands. For example, EPA's Wetland Program Development Grants are 
available to assist States, Tribes, and local governments for building 
their wetland program capacities. In addition, the U.S. Department of 
Justice and other Federal agencies co-sponsored a national wetlands 
conference with the National Governors Association Center for Best 
Practices, National Conference of State Legislatures, the Association 
of State Wetlands Managers, and the National Association of Attorneys 
General. This conference and the dialogue that has ensued will promote 
close collaboration between Federal agencies and States in developing, 
implementing, and enforcing wetlands protection programs. EPA also is 
providing funding to the National Governors Association Center for Best 
Practices to assist States in developing appropriate policies and 
actions to protect intrastate isolated waters.
    In light of this, the agencies solicit information and data from 
the general public, the scientific community, and Federal and State 
resource agencies on the availability and effectiveness of other 
Federal or State programs for the protection of aquatic resources and 
practical experience with their implementation. The agencies are also 
interested in data and comments from State and local agencies on the 
effect of no longer asserting jurisdiction over some of the waters (and 
discharges to those waters) in a watershed on the implementation of 
Total Maximum Daily Loads (TMDLs) and attainment of water quality 
standards.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA and 
the Corps must determine whether the regulatory action is 
``significant'' and therefore subject to review by the Office of 
Management and Budget (OMB) and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this Advanced Notice of Proposed Rulemaking is a 
``significant regulatory action'' in light of the provisions of 
paragraph (4) above as it raises novel legal or policy issues. As such, 
this action was submitted to OMB for review. Changes made in response 
to OMB suggestions or recommendations will be documented in the public 
record.

B. National Environmental Policy Act

    As required by the National Environmental Policy Act (NEPA), the 
Corps prepares appropriate environmental documentation for its 
activities affecting the quality of the human environment. The Corps 
has determined that today's Advance Notice of Proposed Rulemaking 
merely solicits early comment on issues associated with the scope of 
waters that are properly subject to the CWA, and information or data 
from the general public, the scientific community, and Federal and 
State resource agencies on the implications of the SWANCC decision for 
the protection of aquatic resources. In light of this, the Corps has 
determined that today's ANPRM does not constitute a major Federal 
action significantly affecting the quality of the human environment, 
and thus does not require the preparation of an Environmental Impact 
Statement (EIS).

    Dated: January 10, 2003.
Christine Todd Whitman,
Administrator, Environmental Protection Agency.

    Dated: January 10, 2003.
R.L. Brownlee,
Acting Assistant Secretary of the Army, (Civil Works), Department of 
the Army.

    Note: The following guidance document will not appear in the 
Code of Federal Regulations.

Appendix A

Joint Memorandum

Introduction

    This document provides clarifying guidance regarding the Supreme 
Court's decision in Solid Waste Agency of Northern Cook County v. 
United States Army Corps of Engineers, 531 U.S. 159 (2001) 
(``SWANCC'') and addresses several legal issues concerning Clean 
Water Act (``CWA'') jurisdiction that have arisen since SWANCC in 
various factual scenarios involving federal regulation of 
``navigable waters.'' Because the case law interpreting SWANCC has 
developed over the last two years, the Agencies are issuing this 
updated guidance, which supersedes prior guidance on this issue. The 
Corps and EPA are also initiating a rulemaking process to collect 
information and to consider jurisdictional issues as set forth in 
the attached ANPRM. Jurisdictional decisions will be based on 
Supreme Court cases including United States v. Riverside Bayview 
Homes, 474 U.S. 121 (1985) and SWANCC, regulations, and applicable 
case law in each jurisdiction.

Background

    In SWANCC, the Supreme Court held that the Army Corps of 
Engineers had exceeded its authority in asserting CWA jurisdiction 
pursuant to section 404(a) over isolated, intrastate, non-navigable 
waters under 33 C.F.R. 328.3(a)(3), based on their use as habitat 
for migratory birds pursuant to preamble language commonly referred 
to as the ``Migratory Bird Rule,'' 51 FR 41217 (1986). ``Navigable 
waters'' are defined in section 502 of the CWA to mean ``waters of 
the United States, including the territorial seas.'' In SWANCC, the 
Court determined that the term ``navigable'' had significance in 
indicating the authority Congress intended to exercise in asserting 
CWA jurisdiction. 531 U.S. at 172. After reviewing the 
jurisdictional scope of the statutory definition of ``navigable 
waters'' in section 502, the Court concluded that neither the text 
of the statute nor its legislative history supported the

[[Page 1996]]

Corps' assertion of jurisdiction over the waters involved in SWANCC. 
Id. at 170-171.
    In SWANCC, the Supreme Court recognized that ``Congress passed 
the CWA for the stated purpose of `restoring and maintaining the 
chemical, physical, and biological integrity of the Nation's waters' 
'' and also noted that ``Congress chose to `recognize, preserve, and 
protect the primary responsibilities and rights of States to 
prevent, reduce, and eliminate pollution, to plan the development 
and use (including restoration, preservation, and enhancement) of 
land and water resources.' '' Id. at 166-67 (citing 33 U.S.C. 
1251(a) and (b)). However, expressing ``serious constitutional and 
federalism questions'' raised by the Corps' interpretation of the 
CWA, the Court stated that ``where an administrative interpretation 
of a statute invokes the outer limits of Congress' power, we expect 
a clear indication that Congress intended that result.'' Id. at 174, 
172. Finding ``nothing approaching a clear statement from Congress 
that it intended section 404(a) to reach an abandoned sand and 
gravel pit'' (id. at 174), the Court held that the Migratory Bird 
Rule, as applied to petitioners' property, exceeded the agencies' 
authority under section 404(a). Id. at 174.

The Scope of CWA Jurisdiction After SWANCC

    Because SWANCC limited use of 33 CFR Sec.  328.3(a)(3) as a 
basis of jurisdiction over certain isolated waters, it has focused 
greater attention on CWA jurisdiction generally, and specifically 
over tributaries to jurisdictional waters and over wetlands that are 
``adjacent wetlands'' for CWA purposes.
    As indicated, section 502 of the CWA defines the term navigable 
waters to mean ``waters of the United States, including the 
territorial seas.'' The Supreme Court has recognized that this 
definition clearly includes those waters that are considered 
traditional navigable waters. In SWANCC, the Court noted that while 
``the word `navigable' in the statute was of `limited import` '' 
(quoting Riverside, 474 U.S. 121 (1985)), ``the term `navigable' has 
at least the import of showing us what Congress had in mind as its 
authority for enacting the CWA: traditional jurisdiction over waters 
that were or had been navigable in fact or which could reasonably be 
so made.'' 531 U.S. at 172. In addition, the Court reiterated in 
SWANCC that Congress evidenced its intent to regulate ``at least 
some waters that would not be deemed `navigable' under the classical 
understanding of that term.'' SWANCC at 171 (quoting Riverside, 474 
U.S. at 133). Relying on that intent, for many years, EPA and the 
Corps have interpreted their regulations to assert CWA jurisdiction 
over non-navigable tributaries of navigable waters and their 
adjacent wetlands. Courts have upheld the view that traditional 
navigable waters and, generally speaking, their tributary systems 
(and their adjacent wetlands) remain subject to CWA jurisdiction.
    Several federal district and appellate courts have addressed the 
effect of SWANCC on CWA jurisdiction, and the case law on the 
precise scope of federal CWA jurisdiction in light of SWANCC is 
still developing. While a majority of cases hold that SWANCC applies 
only to waters that are isolated, intrastate and non-navigable, 
several courts have interpreted SWANCC's reasoning to apply to 
waters other than the isolated waters at issue in that case. This 
memorandum attempts to add greater clarity concerning federal CWA 
jurisdiction following SWANCC by identifying specific categories of 
waters, explaining which categories of waters are jurisdictional or 
non-jurisdictional, and pointing out where more refined factual and 
legal analysis will be required to make a jurisdictional 
determination.
    Although the SWANCC case itself specifically involved Section 
404 of the CWA, the Court's decision may affect the scope of 
regulatory jurisdiction under other provisions of the CWA as well, 
including the Section 402 NPDES program, the Section 311 oil spill 
program, water quality standards under Section 303, and Section 401 
water quality certification. Under each of these sections, the 
relevant agencies have jurisdiction over ``waters of the United 
States.'' CWA section 502(7).
    This memorandum does not discuss the exact factual predicates 
that are necessary to establish jurisdiction in individual cases. We 
recognize that the field staff and the public could benefit from 
additional guidance on how to apply the applicable legal principles 
to individual cases.\1\ Should questions arise concerning CWA 
jurisdiction, the regulated community should seek assistance from 
the Corps and EPA.
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    \1\ The CWA provisions and regulations described in this 
document contain legally binding requirements. This document does 
not substitute for those provisions or regulations, nor is it a 
regulation itself. It does not impose legally binding requirements 
on EPA, the Corps, or the regulated community, and may not apply to 
a particular situation depending on the circumstances. Any decisions 
regarding a particular water will be based on the applicable 
statutes, regulations, and case law. Therefore, interested person 
are free to raise questions and objections about the appropriateness 
of the application of this guidance to a particular situation, and 
EPA and/or the Corps will consider whether or not the 
recommendations or interpretations of this guidance are appropriate 
in that situation based on the law and regulations.
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A. Isolated, Intrastate Waters That are Non-Navigable

    SWANCC squarely eliminates CWA jurisdiction over isolated waters 
that are intrastate and non-navigable, where the sole basis for 
asserting CWA jurisdiction is the actual or potential use of the 
waters as habitat for migratory birds that cross state lines in 
their migrations. 531 U.S. at 174 (``We hold that 33 CFR Sec.  
328.3(a)(3) (1999), as clarified and applied to petitioner's 
balefill site pursuant to the `Migratory Bird Rule,' 51 FR 41217 
(1986), exceeds the authority granted to respondents under Sec.  
404(a) of the CWA.''). The EPA and the Corps are now precluded from 
asserting CWA jurisdiction in such situations, including over waters 
such as isolated, non-navigable, intrastate vernal pools, playa 
lakes and pocosins. SWANCC also calls into question whether CWA 
jurisdiction over isolated, intrastate, non-navigable waters could 
now be predicated on the other factors listed in the Migratory Bird 
Rule, 51 FR 41217 (i.e., use of the water as habitat for birds 
protected by Migratory Bird Treaties; use of the water as habitat 
for Federally protected endangered or threatened species; or use of 
the water to irrigate crops sold in interstate commerce).
    By the same token, in light of SWANCC, it is uncertain whether 
there remains any basis for jurisdiction under the other rationales 
of Sec.  328.3(a)(3)(i)-(iii) over isolated, non-navigable, 
intrastate waters (i.e., use of the water by interstate or foreign 
travelers for recreational or other purposes; the presence of fish 
or shellfish that could be taken and sold in interstate commerce; 
use of the water for industrial purposes by industries in interstate 
commerce). Furthermore, within the states comprising the Fourth 
Circuit, CWA jurisdiction under 33 CFR Sec.  328.3(a)(3) in its 
entirety has been precluded since 1997 by the Fourth Circuit's 
ruling in United States v. Wilson, 133 F. 3d 251, 257 (4th Cir. 
1997) (invalidating 33 CFR Sec.  328.3(a)(3)).
    In view of SWANCC, neither agency will assert CWA jurisdiction 
over isolated waters that are both intrastate and non-navigable, 
where the sole basis available for asserting CWA jurisdiction rests 
on any of the factors listed in the ``Migratory Bird Rule.'' In 
addition, in view of the uncertainties after SWANCC concerning 
jurisdiction over isolated waters that are both intrastate and non-
navigable based on other grounds listed in 33 CFR Sec.  
328.3(a)(3)(i)-(iii), field staff should seek formal project-
specific Headquarters approval prior to asserting jurisdiction over 
such waters, including permitting and enforcement actions.

B. Traditional Navigable Waters

    As noted, traditional navigable waters are jurisdictional. 
Traditional navigable waters are waters that are subject to the ebb 
and flow of the tide, or waters that are presently used, or have 
been used in the past, or may be susceptible for use to transport 
interstate or foreign commerce. 33 CFR Sec.  328.3(a)(1); United 
States v. Appalachian Elec. Power Co., 311 U.S. 377, 407-408 (1940) 
(water considered navigable, although not navigable at present but 
could be made navigable with reasonable improvements); Economy Light 
& Power Co. v. United States, 256 U.S. 113 (1911) (dams and other 
structures do not eliminate navigability); SWANCC, 531 U.S. at 172 
(referring to traditional jurisdiction over waters that were or had 
been navigable in fact or which could reasonably be so made).\2\
---------------------------------------------------------------------------

    \2\ These traditional navigable waters are not limited to those 
regulated under Section 10 of the Rivers and Harbors Act of 1899; 
traditional navigable waters include waters which, although used, 
susceptibale to use, or historically used, to transport goods or 
people in commerce, do not form part of a continuous wateborne 
highway.
---------------------------------------------------------------------------

    In accord with the analysis in SWANCC, waters that fall within 
the definition of traditional navigable waters remain jurisdictional 
under the CWA. Thus, isolated, intrastate waters that are capable of 
supporting navigation by watercraft remain subject to CWA 
jurisdiction after SWANCC if they are traditional navigable waters, 
i.e., if they meet any of the tests for being navigable-in-fact. 
See, e.g., Colvin v. United States 181 F. Supp. 2d 1050 (C.D. Cal. 
2001) (isolated

[[Page 1997]]

man-made water body capable of boating found to be ``water of the 
United States'').

C. Adjacent Wetlands

(1) Wetlands Adjacent to Traditional Navigable Waters

    CWA jurisdiction also extends to wetlands that are adjacent to 
traditional navigable waters. The Supreme Court did not disturb its 
earlier holding in Riverside when it rendered its decision in 
SWANCC. Riverside dealt with a wetland adjacent to Black Creek, a 
traditional navigable water. 474 U.S. 121 (1985); see also SWANCC, 
531 U.S. at 167 (``[i]n Riverside, we held that the Corps had 
section 404(a) jurisdiction over wetlands that actually abutted on a 
navigable waterway''). The Court in Riverside found that 
``Congress'; concern for the protection of water quality and aquatic 
ecosystems indicated its intent to regulate wetlands `inseparably 
bound up with' '' jurisdictional waters. 474 U.S. at 134. Thus, 
wetlands adjacent to traditional navigable waters clearly remain 
jurisdictional after SWANCC. The Corps and EPA currently define 
`adjacent' as ``bordering, contiguous, or neighboring. Wetlands 
separated from other waters of the United States by man-made dikes 
or barriers, natural river berms, beach dunes, and the like are 
`adjacent wetlands.' '' 33 CFR Sec.  328.3(b); 40 CFR Sec.  
230.3(b). The Supreme Court has not itself defined the term 
``adjacent,'' nor stated whether the basis for adjacency is 
geographic proximity or hydrology.

(2) Wetlands Adjacent to Non-Navigable Waters

    The reasoning in Riverside, as followed by a number of post-
SWANCC courts, supports jurisdiction over wetlands adjacent to non-
navigable waters that are tributaries to navigable waters. Since 
SWANCC, some courts have expressed the view that SWANCC raised 
questions about adjacency jurisdiction, so that wetlands are 
jurisdictional only if they are adjacent to navigable waters. See, 
e.g., Rice v. Harken, discussed infra.

D. Tributaries

    A number of court decisions have held that SWANCC does not 
change the principle that CWA jurisdiction extends to tributaries of 
navigable waters. See, e.g., Headwaters v. Talent Irrigation Dist., 
243 F.3d 526, 534 (9th Cir. 2001) (``Even tributaries that flow 
intermittently are `waters of the United States' ''); United States 
v. Interstate Gen. Co, No. 01-4513, slip op. at 7, 2002 WL 1421411 
(4th Cir. July 2, 2002), aff'ing 152 F. Supp. 2d 843 (D. Md. 2001) 
(refusing to grant writ of coram nobis; rejecting argument that 
SWANCC eliminated jurisdiction over wetlands adjacent to non-
navigable tributaries); United States v. Krilich, 393F.3d 784 (7th 
Cir. 2002) (rejecting motion to vacate consent decree, finding that 
SWANCC did not alter regulations interpreting ``waters of the U.S.'' 
other than 33 C.F.R. Sec.  328.3(a)(3)); Community Ass. for 
Restoration of the Env't v. Henry Bosma Dairy, 305 F.3d 953 (9th 
Cir. 2002) (drain that flowed into a canal that flows into a river 
is jurisdictional); Idaho Rural Council v. Bosma, 143 F. Supp. 2d 
1169, 1178 (D. Idaho 2001) (``waters of the United States include 
waters that are tributary to navigable waters''); Aiello v. Town of 
Brookhaven, 136 F. Supp. 2d 81, 118 (E.D. N.Y. 2001) (non-navigable 
pond and creek determined to be tributaries of navigable waters, and 
therefore ``waters of the United States under the CWA''). 
Jurisdiction has been recognized even when the tributaries in 
question flow for a significant distance before reaching a navigable 
water or are several times removed from the navigable waters (i.e., 
``tributaries of tributaries''). See, e.g., United States v. 
Lamplight Equestrian Ctr., No. 00 C 6486, 2002 WL 360652, at *8 (ND. 
Ill. Mar. 8, 2002) (``Even where the distance from the tributary to 
the navigable water is significant, the quality of the tributary is 
still vital to the quality of navigable waters''); United States v. 
Buday, 138 F. Supp. 2d 1282, 1291-92 (D. Mont. 2001) (``water 
quality of tributaries * * * distant though the tributaries may be 
from navigable streams, is vital to the quality of navigable 
waters''); United States v. Rueth Dev. Co., No. 2:96CV540, 2001 WL 
17580078 (N.D. Ind. Sept. 26, 2001) (refusing to reopen a consent 
decree in a CWA case and determining that jurisdiction remained over 
wetlands adjacent to a non-navigable (man-made) waterway that flows 
into a navigable water).
    Some courts have interpreted the reasoning in SWANCC to 
potentially circumscribe CWA jurisdiction over tributaries by 
finding CWA jurisdiction attaches only where navigable waters and 
waters immediately adjacent to navigable waters are involved. Rice 
v. Harken is the leading case taking the narrowest view of CWA 
jurisdiction after SWANCC. 250 F.3d 264 (5th Cir. 2001) (rehearing 
denied). Harken interpreted the scope of ``navigable waters'' under 
the Oil Pollution Act (OPA). The Fifth Circuit relied on SWANCC to 
conclude ``it appears that a body of water is subject to regulation 
under the CWA if the body of water is actually navigable or is 
adjacent to an open body of navigable water.'' 250 F.3d at 269. The 
analysis in Harken implies that the Fifth Circuit might limit CWA 
jurisdiction to only those tributaries that are traditionally 
navigable or immediately adjacent to a navigable water.
    A few post-SWANCC district court opinions have relied on Harken 
or reasoning similar to that employed by the Harken court to limit 
jurisdiction. See, e.g., United States v. Rapanos, 190 F. Supp. 2d 
1011(E.D. Mich. 2002) (government appeal pending) (``the Court finds 
as a matter of law that the wetlands on Defendant's property were 
not directly adjacent to navigable waters, and therefore, the 
government cannot regulate Defendant's property.''); United States 
v. Needham, No. 6:01-CV-01897, 2002 WL 1162790 (W.D. La. Jan. 23, 
2002) (government appeal pending) (district court affirmed finding 
of no liability by bankruptcy court for debtors under OPA for 
discharge of oil since drainage ditch into which oil was discharged 
was found to be neither a navigable water nor adjacent to an open 
body of navigable water). See alsoUnited States v. Newdunn, 195 F. 
Supp. 2d 751 (E.D. Va. 2002) (government appeal pending) (wetlands 
and tributaries not contiguous or adjacent to navigable waters are 
outside CWA jurisdiction); United States v. RGM Corp., 222 F. Supp. 
2d 780 (E.D. Va. 2002) (government appeal pending) (wetlands on 
property not contiguous to navigable river and, thus, jurisdiction 
not established based upon adjacency to navigable water).
    Another question that has arisen is whether CWA jurisdiction is 
affected when a surface tributary to jurisdictional waters flows for 
some of its length through ditches, culverts, pipes, storm sewers, 
or similar manmade conveyances. A number of courts have held that 
waters with manmade features are jurisdictional. For example, in 
Headwaters Inc. v. Talent Irrigation District, the Ninth Circuit 
held that manmade irrigation canals that diverted water from one set 
of natural streams and lakes to other streams and creeks were 
connected as tributaries to waters of the United States, and 
consequently fell within the purview of CWA jurisdiction. 243 F.3d 
at 533-34. However, some courts have taken a different view of the 
circumstances under which man-made conveyances satisfy the 
requirements for CWA jurisdiction. See, e.g., Newdunn, 195 F. Supp. 
2d at 765 (government appeal pending) (court determined that Corps 
had failed to carry its burden of establishing CWA jurisdiction over 
wetlands from which surface water had to pass through a spur ditch, 
a series of man-made ditches and culverts as well as non-navigable 
portions of a creek before finally reaching navigable waters).
    A number of courts have held that waters connected to 
traditional navigable waters only intermittently or ephemerally are 
subject to CWA jurisdiction. The language and reasoning in the Ninth 
Circuit's decision in Headwaters Inc. v. Talent Irrigation District 
indicates that the intermittent flow of waters does not affect CWA 
jurisdiction. 243 F.3d at 534 (``Even tributaries that flow 
intermittently are `waters of the United States.' ''). Other cases, 
however, have suggested that SWANCC eliminated from CWA jurisdiction 
some waters that flow only intermittently. See, e.g., Newdunn, 195 
F. Supp. 2d at 764, 767-68 (government appeal pending) (ditches and 
culverts with intermittent flow not jurisdictional).
    A factor in determining jurisdiction over waters with 
intermittent flows is the presence or absence of an ordinary high 
water mark (OHWM). Corps regulations provide that, in the absence of 
adjacent wetlands, the lateral limits of non-tidal waters extend to 
the OHWM (33 CFR 328.4(c)(1)). One court has interpreted this 
regulation to require the presence of a continuous OHWM. United 
States v. RGM, 222 F. Supp. 2d 780 (E.D. Va. 2002) (government 
appeal pending).

Conclusion

    In light of SWANCC, field staff should not assert CWA 
jurisdiction over isolated waters that are both intrastate and non-
navigable, where the sole basis available for asserting CWA 
jurisdiction rests on any of the factors listed in the ``Migratory 
Bird Rule.'' In addition, field staff should seek formal project-
specific HQ approval prior to asserting jurisdiction over waters 
based on

[[Page 1998]]

other factors listed in 33 CFR 328.3(a)(3)(i)-(iii).
    Field staff should continue to assert jurisdiction over 
traditional navigable waters (and adjacent wetlands) and, generally 
speaking, their tributary systems (and adjacent wetlands). Field 
staff should make jurisdictional and permitting decisions on a case-
by-case basis considering this guidance, applicable regulations, and 
any additional relevant court decisions. Where questions remain, the 
regulated community should seek assistance from the agencies on 
questions of jurisdiction.

Robert E. Fabricant,
General Counsel, Environmental Protection Agency.
Steven J. Morello,
General Counsel, Department of the Army.

[FR Doc. 03-960 Filed 1-14-03; 8:45 am]
BILLING CODE 6560-50-P