[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Pages 24479-24480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10565]




Deaprtment of the Army, Corps of Engineers

[EPA-HQ-OW-2011-0409; FRL-9300-6]

EPA and Army Corps of Engineers Guidance Regarding Identification 
of Waters Protected by the Clean Water Act

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

ACTION: Notice of availability and request for comments.


SUMMARY: The Environmental Protection Agency (EPA) and the U.S. Army 
Corps of Engineers (the Corps) are publishing for public comment 
proposed guidance that describes how the agencies will identify waters 
protected by the Federal Water Pollution Control Act Amendments of 1972 
(Clean Water Act or CWA or Act) and implement the Supreme Court's 
decisions on this topic (i.e., Solid Waste Agency of Northern Cook 
County v. U.S. Army Corps of Engineers (SWANCC) (531 U.S. 159 (2001)) 
and Rapanos v. United States (547 U.S. 715 (2006)) (Rapanos)). The 
agencies believe that under this proposed guidance the number of waters 
identified as protected by the Clean Water Act will increase compared 
to current practice and this improvement will aid in protecting the 
Nation's public health and aquatic resources.
    The proposed guidance is consistent with the principles established 
by the Supreme Court cases and is supported by the agencies' scientific 
understanding of how waterbodies and watersheds function.
    In addition, the agencies believe that when the revised guidance is 
finalized and goes into effect, it will improve CWA program 
predictability and clarity regarding the scope of ``waters of the 
United States'' protected under the Act and that this improvement will 
have benefits for both the government and regulated parties. When 
finalized, this guidance would supersede previously issued guidance on 
this matter. This guidance will apply to all CWA programs, including 
section 303 water quality standards, section 311 oil spill prevention 
and response, section 401 water quality certification, section 402 
National Pollutant Discharge Elimination System permits, and section 
404 permits for discharges of dredged or fill material. The agencies 
seek public comment on all aspects of the proposed guidance, including 
interpretations and scientific underpinnings.
    In addition to this guidance, the agencies expect to propose 
revisions of existing regulations to further clarify which waters are 
subject to CWA jurisdiction, consistent with the Supreme Court's 
decisions. Public comment on any such revisions will be requested at 
the time they are proposed.

DATES: Comments must be received on or before July 1, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2011-0409 by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.

[[Page 24480]]

     E-mail: [email protected]. Include EPA-HQ-OW-2011-0409 in 
the subject line of the message.
     Mail: Send the original and three copies of your comments 
to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention: Docket 
ID No. EPA-HQ-OW-2011-0409.
     Hand Delivery/Courier: Deliver your comments to EPA Docket 
Center, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, 
DC 20460, Attention Docket ID No. EPA-HQ-OW-2011-0409. Such deliveries 
are accepted only during the Docket's normal hours of operation, which 
are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. Special arrangements should be made for deliveries of boxed 
information. The telephone number for the Water Docket is 202-566-2426.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2011-
0409. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available on-line at 
http://www.regulations.gov,including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI, or otherwise protected, through http://www.regulations.gov or 
e-mail. The http://www.regulations.gov Web site is an ``anonymous 
access'' system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA might not be able to 
consider your comment. Avoid the use of special characters and any form 
of encryption, and ensure that electronic files are free of any defects 
or viruses. For additional information about EPA's public docket, visit 
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Some information, however, is not publicly 
available, e.g., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is publicly available only in hard copy. Publicly available 
docket materials are available electronically at http://www.regulations.gov or in hard copy at the Water Docket, EPA Docket 
Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC. The 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.

FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing, Office of Water 
(4502-T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington DC 20460; telephone number 202-566-1783; e-mail address: 
[email protected]. Mr. David Olson, Regulatory Community of Practice 
(CECW-CO-R), U.S. Army Corps of Engineers, 441 G Street, NW., 
Washington, DC 20314; telephone number 202-761-4922; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: EPA and the Corps are seeking public comment 
on proposed joint agency guidance regarding identification of waters 
protected by the Clean Water Act. The agencies intention is that the 
final joint guidance will supersede the ``Joint Memorandum'' providing 
clarifying guidance on SWANCC, dated Jan. 15, 2003 (68 FR 1991, 1995), 
and ``Clean Water Act Jurisdiction Following the U.S. Supreme Court's 
Decision in Rapanos v. United States & Carabell v. United States,'' 
dated December 2, 2008, and available at http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm. Until that final guidance is issued, 
both the 2003 and 2008 CWA jurisdiction guidance remain in effect.
    Congress enacted the Clean Water Act (CWA) ``to restore and 
maintain the chemical, physical, and biological integrity of the 
Nation's waters'' (33 U.S.C. 1251(a)). One of the mechanisms adopted by 
Congress to achieve that purpose is a prohibition on the discharge of 
any pollutants into ``navigable waters'' except in compliance with 
other specified sections of the CWA (33 U.S.C. 1311(a) and 
1362(12)(A)). In most cases, this means compliance with a permit issued 
pursuant to CWA section 402 (33 U.S.C. 1342) or section 404 (33 U.S.C. 
1344). The CWA provides that ``[t]he term `navigable waters' means the 
waters of the United States, including the territorial seas'' (33 
U.S.C. 1362(7)). EPA and the Corps have further defined the term 
``waters of the United States'' in regulations (40 CFR 230.3(s) and 33 
CFR 328.3(a); 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).
    The U.S. Supreme Court has addressed the scope of waters of the 
United States protected by the CWA in three cases, two of which are 
specifically addressed by the draft guidance. In SWANCC, the Court 
addressed the question of CWA jurisdiction over isolated ponds, and 
concluded that CWA jurisdiction could not be based solely on the 
presence of migratory birds. In Rapanos, the Court addressed CWA 
protections for wetlands adjacent to tributaries, and issued five 
opinions with no single opinion commanding a majority of the Court. 
Neither SWANCC nor the opinions in Rapanos invalidated any of the 
regulatory provisions defining ``waters of the United States.'' The 
Court also addressed the question of CWA jurisdiction in an earlier 
case, Riverside Bayview Homes. While not specifically addressed in the 
current guidance, this case informed the Court's decisions in the 
latter two cases.
    The agencies believe it is advisable to replace existing guidance 
documents interpreting SWANCC and Rapanos in order to implement the CWA 
in a manner that is consistent with those opinions, reflects the best 
available science, and recognizes recent field implementation 
experience. By reflecting such developments, the proposed guidance made 
available today for public comment is expected, once it is finalized 
after considering all comments received, to provide clearer direction 
to field staff in implementing the Court decisions and reduce 
uncertainty in the regulated community.
    EPA and Army Corps of Engineers Guidance Regarding Identification 
of Waters Protected by the Clean Water Act

    Dated: April 25, 2011.
Nancy K. Stoner,
Acting Assistant Administrator for Water Environmental Protection 
    Dated: April 26, 2011.
Jo Ellen Darcy,
Assistant Secretary of the Army (Civil Works), Department of the Army.
[FR Doc. 2011-10565 Filed 4-29-11; 8:45 am]