[Federal Register Volume 82, Number 143 (Thursday, July 27, 2017)]
[Proposed Rules]
[Pages 34899-34909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13997]


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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, 302, and 401

[EPA-HQ-OW-2017-0203; FRL-9962-34-OW]
RIN 2040-AF74


Definition of ``Waters of the United States''--Recodification of 
Pre-Existing Rules

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

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency and the Department of the 
Army (``the agencies'') are publishing this proposed rule to initiate 
the first step in a comprehensive, two-step process intended to review 
and revise the definition of ``waters of the United States'' consistent 
with the Executive Order signed on February 28, 2017, ``Restoring the 
Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters 
of the United States' Rule.'' This first step proposes to rescind the 
definition of ``waters of the United States'' in the Code of Federal 
Regulations to re-codify the definition of ``waters of the United 
States,'' which currently governs administration of the Clean Water 
Act, pursuant to a decision issued by the U.S. Court of Appeals for the 
Sixth Circuit staying a definition of ``waters of the United States'' 
promulgated by the agencies in 2015. The agencies would apply the 
definition of ``waters of the United States'' as it is currently being 
implemented, that is informed by applicable agency guidance documents 
and consistent with Supreme Court decisions and longstanding practice. 
Proposing to re-codify the regulations that existed before the 2015 
Clean Water Rule will provide continuity and certainty for regulated 
entities, the States, agency staff, and the public. In a second step, 
the agencies will pursue notice-and-comment rulemaking in which the 
agencies will conduct a substantive re-evaluation of the definition of 
``waters of the United States.''

DATES: Comments must be received on or before August 28, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2017-0203, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The agencies may publish any 
comment received to the public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The 
agencies will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file sharing system). For additional submission methods, the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing, Office of Water 
(4504-T), Environmental Protection Agency, 1200 Pennsylvania Avenue 
NW., Washington, DC 20460; telephone number: (202) 566-2428; email 
address: [email protected]; or Ms. Stacey Jensen, Regulatory Community 
of Practice (CECW-CO-R), U.S. Army

[[Page 34900]]

Corps of Engineers, 441 G Street NW., Washington, DC 20314; telephone 
number: (202) 761-5903; email address: [email protected].

SUPPLEMENTARY INFORMATION: The regulatory definition of ``waters of the 
United States'' in this proposed rule is the same as the definition 
that existed prior to promulgation of the Clean Water Rule in 2015 and 
that has been in effect nationwide since the Clean Water Rule was 
stayed on October 9, 2015. The agencies will administer the regulations 
as they are currently being implemented consistent with Supreme Court 
decisions and longstanding practice as informed by applicable agency 
guidance documents.
    State, tribal, and local governments have well-defined and 
longstanding relationships with the federal government in implementing 
CWA programs and these relationships are not altered by the proposed 
rule. This proposed rule will not establish any new regulatory 
requirements. Rather, the rule simply codifies the current legal status 
quo while the agencies engage in a second, substantive rulemaking to 
reconsider the definition of ``waters of the United States.''

I. Executive Summary

A. What This Proposed Rule Does

    In this proposed rule, the agencies define the scope of ``waters of 
the United States'' that are protected under the Clean Water Act (CWA). 
In 2015, the agencies published the ``Clean Water Rule: Definition of 
`Waters of the United States''' (80 FR 37054, June 29, 2015), and on 
October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed 
the 2015 Rule nationwide pending further action of the court. The 
agencies propose to replace the stayed 2015 definition of ``waters of 
the United States'', and re-codify the exact same regulatory text that 
existed prior to the 2015 rule, which reflects the current legal regime 
under which the agencies are operating pursuant to the Sixth Circuit's 
October 9, 2015 order. The proposed regulatory text would thus replace 
the stayed rulemaking text, and re-codify the regulatory definitions 
(at 33 CFR part 328 and 40 CFR parts 110; 112; 116; 117; 122; 230; 232; 
300; 302; and 401) in the Code of Federal Regulations (CFR) as they 
existed prior to the promulgation of the stayed 2015 definition. If 
this proposed rule is finalized, the agencies would continue to 
implement those prior regulatory definitions), informed by applicable 
agency guidance documents and consistent with Supreme Court decisions 
and longstanding agency practice.

B. History and the Purpose of This Rulemaking

    Congress enacted the Federal Water Pollution Control Act Amendments 
of 1972, Public Law 92-500, 86 Stat. 816, as amended, Public Law 95-
217, 91 Stat. 1566, 33 U.S.C. 1251 et seq. (``Clean Water Act'' or 
``CWA'' or ``Act'') ``to restore and maintain the chemical, physical 
and biological integrity of the Nation's waters.'' Section 101(a). A 
primary tool in achieving that purpose is a prohibition on the 
discharge of any pollutants, including dredged or fill material, to 
``navigable waters'' except in accordance with the Act. Section 301(a). 
The CWA provides that ``[t]he term `navigable waters' means the waters 
of the United States, including the territorial seas.'' Section 502(7).
    The CWA also provides that States retain their traditional role in 
preventing, reducing and eliminating pollution. The Act states that 
``[i]t is the policy of the Congress 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 . . .'' Section 101(b). States and Tribes voluntarily 
may assume responsibility for permit programs governing discharges of 
pollution under section 402 for any jurisdictional water bodies 
(section 402(b)), or of dredged or fill material discharges under 
section 404 (section 404(g)), with agency approval. (Section 404(g) 
provides that states may not assume permitting authority over certain 
specified waters and their adjacent wetlands.) States are also free to 
establish their own programs under state law to manage and protect 
waters and wetlands independent of the federal CWA. The statute's 
introductory purpose section thus commands the Environmental Protection 
Agency (EPA) to pursue two policy goals simultaneously: (a) To restore 
and maintain the nation's waters; and (b) to preserve the States' 
primary responsibility and right to prevent, reduce, and eliminate 
pollution.
    The regulations defining the scope of federal CWA jurisdiction 
currently in effect, which this proposed rule would recodify, were 
established in large part in 1977 (42 FR 37122, July 19, 1977). While 
EPA administers most provisions in the CWA, the U.S. Army Corps of 
Engineers (Corps) administers the permitting program under section 404. 
During the 1980s, both of these agencies adopted substantially similar 
definitions (51 FR 41206, Nov. 13, 1986, amending 33 CFR 328.3; 53 FR 
20764, June 6, 1988, amending 40 CFR 232.2).
    Federal courts have reviewed the definition of ``waters of the 
United States'' and its application to a variety of factual 
circumstances. Three Supreme Court decisions, in particular, provide 
critical context and guidance in determining the appropriate scope of 
``waters of the United States.''
    In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) 
(Riverside), the Court, in a unanimous opinion, deferred to the Corps' 
ecological judgment that adjacent wetlands are ``inseparably bound up'' 
with the waters to which they are adjacent, and upheld the inclusion of 
adjacent wetlands in the regulatory definition of ``waters of the 
United States.'' Id. at 134.
    In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 
Engineers, 531 U.S. 159 (2001) (SWANCC), the Supreme Court held that 
the use of ``isolated'' non-navigable intrastate ponds by migratory 
birds was not by itself a sufficient basis for the exercise of federal 
regulatory authority under the CWA. The SWANCC decision created 
uncertainty with regard to the jurisdiction of other isolated non-
navigable waters and wetlands. In January 2003, EPA and the Corps 
issued joint guidance interpreting the Supreme Court decision in SWANCC 
(``the 2003 Guidance''). The guidance indicated that SWANCC focused on 
isolated, intrastate, non-navigable waters, and called for field staff 
to coordinate with their respective Corps or EPA Headquarters on 
jurisdictional determinations which asserted jurisdiction for waters 
under 33 CFR 328.3(a)(3)(i) through (iii). Waters that were 
jurisdictional pursuant to 33 CFR 328.3(a)(3) could no longer be 
determined jurisdictional based solely on their use by migratory birds.
    Five years after the SWANCC decision, in Rapanos v. United States, 
547 U.S. 715 (2006) (Rapanos), a four-Justice plurality opinion in 
Rapanos, authored by Justice Scalia, 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 water 
bodies, 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

[[Page 34901]]

continuous flow during some months of the year but no flow during dry 
months . . .'' Id. at 732 n.5 (emphasis in original). Justice Kennedy 
concurred with the plurality judgment, but concluded that the 
appropriate test for the scope of jurisdictional waters is whether a 
water or wetland possesses a `` `significant nexus' to waters that are 
or were navigable in fact or that could reasonably be so made.'' Id. at 
759. The four dissenting Justices in Rapanos, who would have affirmed 
the court of appeals' application of the agencies' regulations, also 
concluded that the term ``waters of the United States'' encompasses, 
inter alia, all tributaries and wetlands that satisfy ``either the 
plurality's [standard] or Justice Kennedy's.'' Id. at 810 & n.14 
(Stevens, J., dissenting).
    While the SWANCC and Rapanos decisions limited the way the 
agencies' longstanding regulatory definition of ``waters of the United 
States'' was implemented, in neither case did the Court invalidate that 
definition.
    After the Rapanos decision, the agencies issued joint guidance in 
2007 to address the waters at issue in that decision but did not change 
the codified definition. The guidance indicated that ``waters of the 
United States'' included traditional navigable waters and their 
adjacent wetlands, relatively permanent waters and wetlands that abut 
them, and waters with a significant nexus to a traditional navigable 
water. The guidance did not address waters not at issue in Rapanos, 
such as interstate waters and the territorial seas. The guidance was 
reissued in 2008 with minor changes (hereinafter, the ``2008 
guidance'').\1\
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    \1\ The guidance expressly stated that it was not intended to 
create any legally binding requirements, and that ``interested 
persons are free to raise questions 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 statutes, regulations, and case law.'' 2008 guidance at 
4 n. 17.
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    After issuance of the 2008 guidance, Members of Congress, 
developers, farmers, state and local governments, environmental 
organizations, energy companies and others asked the agencies to 
replace the guidance with a regulation that would provide clarity and 
certainty on the scope of the waters protected by the CWA.
    Following public notice and comment on a proposed rule, the 
agencies published a final rule defining the scope of ``waters of the 
United States'' on June 29, 2015 (80 FR 37054). Thirty-one States and a 
number of other parties sought judicial review in multiple actions in 
Federal district courts and Circuit Courts of Appeal, raising concerns 
about the scope and legal authority of the 2015 rule. One district 
court issued an order granting a motion for preliminary injunction on 
the rule's effective date, finding that the thirteen State challengers 
were likely to succeed on their claims, including that the rule 
violated the congressional grant of authority to the agencies under the 
CWA and that it appeared likely the EPA failed to comply with 
Administrative Procedure Act (APA) requirements in promulgating the 
rule. State of North Dakota et al. v. US EPA, No. 15-00059, slip op. at 
1-2 (D.N.D. Aug. 27, 2015, as clarified by order issued on September 4, 
2015). Several weeks later, the Sixth Circuit stayed the 2015 rule 
nationwide to restore the ``pre-Rule regime, pending judicial review.'' 
In re U.S. Dep't. of Def. and U.S. Envtl. Protection Agency Final Rule: 
Clean Water Rule, No. 15-3751 (lead), slip op. at 6. The Sixth Circuit 
found that the petitioners had demonstrated a substantial possibility 
of success on the merits, including with regard to claims that certain 
provisions of the rule were at odds with the Rapanos decision and that 
the distance limitations in the rule were not substantiated by 
scientific support. Pursuant to the court's order, the agencies have 
implemented the statute pursuant to the regulatory regime that preceded 
the 2015 rule. On January 13, 2017, the U.S. Supreme Court granted 
certiorari on the question of whether the court of appeals has original 
jurisdiction to review challenges to the 2015 rule. The Sixth Circuit 
granted petitioners' motion to hold in abeyance the briefing schedule 
in the litigation challenging the 2015 rule pending a Supreme Court 
decision on the question of the court of appeals' jurisdiction.
    On February 28, 2017, the President of the United States issued an 
Executive Order entitled ``Restoring the Rule of Law, Federalism, and 
Economic Growth by Reviewing the `Waters of the United States' Rule.'' 
Section 1 of the Order states, ``[i]t is in the national interest to 
ensure that the Nation's navigable waters are kept free from pollution, 
while at the same time promoting economic growth, minimizing regulatory 
uncertainty, and showing due regard for the roles of the Congress and 
the States under the Constitution.'' It directs the EPA and the Army to 
review the 2015 rule for consistency with the policy outlined in 
section 1, and to issue a proposed rule rescinding or revising the 2015 
rule as appropriate and consistent with law. Section 2. The Executive 
Order also directs the agencies to consider interpreting the term 
``navigable waters'' in a manner consistent with Justice Scalia's 
plurality opinion in Rapanos. Section 3.
    The agencies have the authority to rescind and revise the 
regulatory definition of ``waters of the United States,'' consistent 
with the guidance in the Executive Order, so long as the revised 
definition is authorized under the law and based on a reasoned 
explanation. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 
(2009) (``Fox''). Importantly, such a revised decision need not be 
based upon a change of facts or circumstances. A revised rulemaking 
based ``on a re-evaluation of which policy would be better in light of 
the facts'' is ``well within an agency's discretion,'' and ``[a] change 
in administration brought about by the people casting their votes is a 
perfectly reasonable basis for an executive agency's reappraisal'' of 
its regulations and programs. Nat'l Ass'n of Home Builders v. EPA, 682 
F.3d 1032, 1038 & 1043 (D.C. Cir. 2012) (citing Fox, 556 U.S. at 514-15 
(Rehnquist, J., concurring in part and dissenting in part)).
    The Executive Order states that it is in the national interest to 
protect the nation's waters from pollution as well as to allow for 
economic growth, ensuring regulatory clarity, and providing due 
deference to States, as well as Congress. Executive Order section 1. 
These various priorities reflect, in part the CWA itself, which 
includes both the objective to ``restore and maintain'' the integrity 
of the nation's waters, as well as the policy to ``recognize, preserve, 
and protect the primary responsibilities and right of States to 
prevent, reduce, and eliminate pollution . . .'' CWA sections 101(a), 
101(b). Re-evaluating the best means of balancing these statutory 
priorities, as called for in the Executive Order, is well within the 
scope of authority that Congress has delegated to the agencies under 
the CWA.
    This rulemaking is the first step in a two-step response to the 
Executive Order, intended to ensure certainty as to the scope of CWA 
jurisdiction on an interim basis as the agencies proceed to engage in 
the second step: A substantive review of the appropriate scope of 
``waters of the United States.''

C. This Proposed Rule

    In this proposed rule, the agencies would rescind the 2015 Clean 
Water Rule and replace it with a recodification of the regulatory text 
that governed the legal regime prior to the 2015 Clean Water Rule and 
that the agencies are

[[Page 34902]]

currently implementing under the court stay, informed by applicable 
guidance documents (e.g., the 2003 and 2008 guidance documents, as well 
as relevant memoranda and regulatory guidance letters), and consistent 
with the SWANCC and Rapanos Supreme Court decisions, applicable case 
law, and longstanding agency practice. The proposal retains exclusions 
from the definition of ``waters of the United States'' for prior 
converted cropland and waste treatment systems, both of which existed 
before the 2015 regulations were issued. Nothing in this proposed rule 
restricts the ability of States to protect waters within their 
boundaries by defining the scope of waters regulated under State law 
more broadly than the federal law definition.

D. Rationale for This Rulemaking

    This rulemaking action is consistent with the February 28, 2017, 
Executive Order and the Clean Water Act. This action will consist of 
two steps. In this first step, the agencies are proposing as an interim 
action to repeal the 2015 definition of ``waters of the United States'' 
and codify the legal status quo that is being implemented now under the 
Sixth Circuit stay of the 2015 definition of ``waters of the United 
States'' and that was in place for decades prior to the 2015 rule. This 
regulatory text would, pending completion of the second step in the 
two-step process, continue to be informed by the 2003 and 2008 guidance 
documents. In the second step, the agencies will conduct a separate 
notice and comment rulemaking that will consider developing a new 
definition of ``waters of the United States'' taking into consideration 
the principles that Justice Scalia outlined in the Rapanos plurality 
opinion.
    In the 2015 rulemaking, the agencies described their task as 
``interpret[ing] the scope of the `waters of the United States' for the 
CWA in light of the goals, objectives, and policies of the statute, the 
Supreme Court case law, the relevant and available science, and the 
agencies' technical expertise and experience.'' 80 FR 37054, 37060 
(June 29, 2015). In so doing, the agencies properly acknowledged that a 
regulation defining ``waters of the United States'' in this area is not 
driven by any one type or piece of information, but rather must be the 
product of the evaluation and balancing of a variety of different types 
of information. That information includes scientific data as well as 
the policies articulated by Congress when it passed the Act. For 
example, the agencies recognized this construct in the preamble to the 
2015 Rule by explaining that what constitutes a ``significant nexus'' 
to navigable waters ``is not a purely scientific determination'' and 
that ``science does not provide bright line boundaries with respect to 
where `water ends' for purposes of the CWA.'' 80 FR at 37060.\2\
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    \2\ This notion was at least implicitly recognized by the Chief 
Justice in his concurring opinion in Rapanos: ``[T]he Corps and the 
EPA would have enjoyed plenty of room to operate in developing some 
notion of an outer bound to the reach of their authority.'' Rapanos 
v. United States, 547 U.S. 715, 758 (2006) (Roberts, C.J., 
concurring). Ultimately, developing ``some notion of an outer 
bound'' from the full range of relevant information is the task 
facing the agencies.
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    The objectives, goals, and policies of the statute are detailed in 
sections 101(a)-(g) of the statute, and guide the agencies' 
interpretation and application of the Clean Water Act. Section 101(a) 
of the Act states that the ``objective of this chapter is to restore 
and maintain the chemical, physical, and biological integrity of the 
Nation's waters,'' and identifies several goals and national policies 
Congress believed would help the Act achieve that objective. 33 U.S.C. 
1251(a). When referring to the Act's objective, the 2015 rule referred 
specifically to Section 101(a). 80 FR at 37056.
    In addition to the objective of the Act and the goals and policies 
identified to help achieve that objective in section 101(a), in section 
101(b) Congress articulated that it is ``the policy of the Congress'' 
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, and to consult with the 
Administrator in the exercise of his or her authority. Section 101(b) 
also states that it is the policy of Congress that the States manage 
the construction grant program under this chapter and implement the 
permit programs under sections 402 and 404 of the Act. 33 U.S.C. 
1251(b). Therefore, as part of the two-step rulemaking, the agencies 
will be considering the relationship of the CWA objective and policies, 
and in particular, the meaning and importance of section 101(b).
    The 2015 rule did acknowledge the language contained in section 
101(b) and the vital role states and tribes play in the implementation 
of the Act and the effort to meet the Act's stated objective. See, 
e.g., 80 FR at 37059. In discussing the provision, the agencies noted 
that it was ``[o]f particular importance[,] [that] states and tribes 
may be authorized by the EPA to administer the permitting programs of 
CWA sections 402 and 404.'' Id. The agencies also noted that ``States 
and federally-recognized tribes, consistent with the CWA, retain full 
authority to implement their own programs to more broadly and more 
fully protect the waters in their jurisdiction.'' Id. at 37060. 
However, the agencies did not include a discussion in the 2015 rule 
preamble of the meaning and importance of section 101(b) in guiding the 
choices the agencies make in setting the outer bounds of jurisdiction 
of the Act, despite the recognition that the rule must be drafted ``in 
light of the goals, objectives, and policies of the statute.'' In the 
two-step rulemaking process commencing with today's notice, the 
agencies will more fully consider the policy in section 101(b) when 
exercising their discretion to delineate the scope of waters of the 
U.S., including the extent to which states or tribes have protected or 
may protect waters that are not subject to CWA jurisdiction.
    The scope of CWA jurisdiction is an issue of great national 
importance and therefore the agencies will allow for robust 
deliberations on the ultimate regulation. While engaging in such 
deliberations, however, the agencies recognize the need to provide as 
an interim step for regulatory continuity and clarity for the many 
stakeholders affected by the definition of ``waters of the United 
States.'' The pre-CWR regulatory regime is in effect as a result of the 
Sixth Circuit's stay of the 2015 rule but that regime depends upon the 
pendency of the Sixth Circuit's order and could be altered at any time 
by factors beyond the control of the agencies. The Supreme Court's 
resolution of the question as to which courts have original 
jurisdiction over challenges to the 2015 rule could impact the Sixth 
Circuit's exercise of jurisdiction and its stay. If, for example, the 
Supreme Court were to decide that the Sixth Circuit lacks original 
jurisdiction over challenges to the 2015 rule, the Sixth Circuit case 
would be dismissed and its nationwide stay would expire, leading to 
inconsistencies, uncertainty, and confusion as to the regulatory regime 
that would be in effect pending substantive rulemaking under the 
Executive Order.
    As noted previously, prior to the Sixth Circuit's stay order, the 
District Court for North Dakota had preliminarily enjoined the rule in 
13 States (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, 
Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New 
Mexico). Therefore, if the Sixth Circuit's nationwide stay were to 
expire, the 2015

[[Page 34903]]

rule would be enjoined under the North Dakota order in States covering 
a large geographic area of the country, but the rule would be in effect 
in the rest of the country pending further judicial decision-making or 
substantive rulemaking under the Executive Order.
    Adding to the confusion that could be caused if the Sixth Circuit's 
nationwide stay of the 2015 rule were to expire, there are multiple 
other district court cases pending on the 2015 rule, including several 
where challengers have filed motions for preliminary injunctions. These 
cases--and the pending preliminary injunction motions--would likely be 
reactivated if the Supreme Court were to determine that the Sixth 
Circuit lacks original jurisdiction over challenges to the 2015 rule. 
The proposed interim rule would establish a clear regulatory framework 
that would avoid the inconsistencies, uncertainty and confusion that 
would result from a Supreme Court ruling affecting the Sixth Circuit's 
jurisdiction while the agencies reconsider the 2015 rule. It would 
ensure that, during this interim period, the scope of CWA jurisdiction 
will be administered exactly the way it is now, and as it was for many 
years prior to the promulgation of the 2015 rule. The agencies 
considered other approaches to providing stability while they work to 
finalize the revised definition, such as simply withdrawing or staying 
the Clean Water Rule, but did not identify any options that would do so 
more effectively and efficiently than this proposed rule would do. A 
stable regulatory foundation for the status quo would facilitate the 
agencies' considered re-evaluation, as appropriate, of the definition 
of ``waters of the United States'' that best effectuates the language, 
structure, and purposes of the Clean Water Act.

II. General Information

A. How can I get copies of this document and related information?

    1. Docket. An official public docket for this action has been 
established under Docket Id. No. EPA-HQ-OW-2017-0203. The official 
public docket consists of the documents specifically referenced in this 
action, and other information related to this action. The official 
public docket is the collection of materials that is available for 
public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution 
Ave. NW., Washington, DC 20004. This Docket Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
OW Docket telephone number is 202-566-2426. A reasonable fee will be 
charged for copies.
    2. Electronic Access. You may access this Federal Register document 
electronically under the Federal Register listings at http://www.regulations.gov. An electronic version of the public docket is 
available through EPA's electronic public docket and comment system, 
EPA Dockets. You may access EPA Dockets at http://www.regulations.gov 
to view public comments as they are submitted and posted, access the 
index listing of the contents of the official public docket, and access 
those documents in the public docket that are available electronically. 
For additional information about EPA's public docket, visit the EPA 
Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the Docket Facility.

B. What is the agencies' authority for taking this action?

    The authority for this action is the Federal Water Pollution 
Control Act, 33 U.S.C. 1251, et seq., including sections 301, 304, 311, 
401, 402, 404 and 501.

C. What are the economic impacts of this action?

    This proposed rule is the first step in a comprehensive, two-step 
process to review and revise the 2015 definition of ``waters of the 
United States.'' The agencies prepared an illustrative economic 
analysis to provide the public with information on the potential 
changes to the costs and benefits of various CWA programs that could 
result if there were a change in the number of positive jurisdictional 
determinations. The economic analysis is provided pursuant to the 
requirements of Executive Orders 13563 and 12866 to provide information 
to the public. The 2015 CWR is used as a baseline in the analysis in 
order to provide information to the public on the estimated 
differential effects of restoring pre-2015 status quo in comparison to 
the 2015 CWR. However, as explained previously, the 2015 CWR has 
already been stayed by the Sixth Circuit, and this proposal would 
merely codify the legal status quo, not change current practice.
    The proposed rule is a definitional rule that affects the scope of 
``waters of the United States.'' This rule does not establish any 
regulatory requirements or directly mandate actions on its own. 
However, by changing the definition of ``waters of the United States,'' 
the proposed rule would change the waters where other regulatory 
requirements that affect regulated entities come into play, for 
example, the locations where regulated entities would be required to 
obtain certain types of permits. The consequence of a water being 
deemed non-jurisdictional is simply that CWA provisions no longer apply 
to that water. There are no avoided costs or forgone benefits if 
similar state regulations exist and continue to apply to that water. 
The agencies estimated that the 2015 rule would result in a small 
overall increase in positive jurisdictional determinations compared to 
those made under the prior regulation as currently implemented, and 
that there would be fewer waters within the scope of the CWA under the 
2015 rule compared to the prior regulations. The agencies estimated the 
avoided costs and forgone benefits of repealing the 2015 rule. This 
analysis is contained in the Economic Analysis for the Proposed 
Definition of ``Waters of the United States''--Recodification of Pre-
existing Rules and is available in the docket for this action.

III. Public Comments

    The agencies solicit comment as to whether it is desirable and 
appropriate to re-codify in regulation the status quo as an interim 
first step pending a substantive rulemaking to reconsider the 
definition of ``waters of the United States'' and the best way to 
accomplish it. Because the agencies propose to simply codify the legal 
status quo and because it is a temporary, interim measure pending 
substantive rulemaking, the agencies wish to make clear that this 
interim rulemaking does not undertake any substantive reconsideration 
of the pre-2015 ``waters of the United States'' definition nor are the 
agencies soliciting comment on the specific content of those 
longstanding regulations. See P&V Enterprises v. Corps of Engineers, 
516 F.3d 1021,1023-24 (D.C. Cir. 2008). For the same reason, the 
agencies are not at this time soliciting comment on the scope of the 
definition of ``waters of the United States'' that the agencies should 
ultimately adopt in the second step of this two-step process, as the 
agencies will address all of those issues, including those related to 
the 2015 rule, in the second notice and comment rulemaking to adopt a 
revised definition of ``waters of the United States'' in light of the 
February 28, 2017, Executive Order. The agencies do not intend to 
engage in substantive reevaluation of the definition of ``waters of the 
United States'' until the second step of the rulemaking. See P&V, 516 
F.3d at 1025-26.

[[Page 34904]]

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations have been documented in the 
docket.
    In addition, the agencies prepared an analysis of the potential 
avoided costs and forgone benefits associated with this action. This 
analysis is contained in the Economic Analysis for the Proposed 
Definition of ``Waters of the United States''--Recodification of Pre-
existing Rules. A copy of the analysis is available in the docket for 
this action.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control numbers 2050-0021 and 2050-0135 for the CWA section 311 program 
and 2040-0004 for the 402 program.
    For the CWA section 404 regulatory program, the current OMB 
approval number for information requirements is maintained by the Corps 
(OMB approval number 0710-0003). However, there are no new approval or 
application processes required as a result of this rulemaking that 
necessitate a new Information Collection Request (ICR).

C. Regulatory Flexibility Act

    We certify that this action will not have a significant economic 
impact on a substantial number of small entities. Because this action 
would simply codify the legal status quo, we have concluded that this 
action will not have a significant impact on small entities. This 
analysis is contained in the Economic Analysis for the Proposed 
Definition of ``Waters of the United States''--Recodification of Pre-
existing Rules. A copy of the analysis is available in the docket for 
this action.

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 CWA programs. The action imposes no enforceable duty 
on any state, local, or tribal governments, or the private sector, and 
does not contain regulatory requirements that might significantly or 
uniquely affect small governments.

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. Consistent 
with the agencies' policy to promote communications with state and 
local governments, the agencies have informed states and local 
governments about this proposed rulemaking.
    The agencies will appropriately consult with States and local 
governments as a subsequent rulemaking makes changes to the 
longstanding definition of ``waters of the United States.''

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

    This proposed rule does not have tribal implications as specified 
in Executive Order 13175. This proposed rule maintains the legal status 
quo. Thus, Executive Order 13175 does not apply to this action.
    Consistent with the EPA Policy on Consultation and Coordination 
with Indian Tribes (May 4, 2011), the agencies will appropriately 
consult with tribal officials during the development of a subsequent 
rulemaking that makes changes to the longstanding definition of 
``waters of the United States.'' In fact, the agencies have already 
initiated the formal consultation process with respect to the 
subsequent rulemaking.

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

    This action is not subject to Executive Order 13045 because the 
environmental health risks or safety risks addressed by this action do 
not present a disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations 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 proposed rule does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This proposed rule maintains the legal status quo. The agencies 
therefore believe that this action does not have disproportionately 
high and adverse human health or environmental effects on minority, 
low-income populations, and/or indigenous peoples, as specified in 
Executive Order 12898 (59 FR 7629, Feb. 16, 1994).

K. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    Pursuant to Executive Order 13771 (82 FR 9339, February 3, 2017) 
this proposed rule is expected to be an E.O. 13771 deregulatory action.

List of Subjects

33 CFR Part 328

    Environmental protection, Administrative practice and procedure, 
Intergovernmental relations, Navigation, Water pollution control, 
Waterways.

40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401

    Environmental protection, Water pollution control.

    Dated: June 27, 2017.
E. Scott Pruitt,
Administrator, Environmental Protection Agency.
    Dated: June 27, 2017.
Douglas W. Lamont,
Deputy Assistant Secretary of the Army (Project Planning and Review), 
performing the duties of the Assistant Secretary of the Army for Civil 
Works.

Title 33--Navigation and Navigable Waters

    For the reasons set out in the preamble, title 33, chapter II of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 328--DEFINITION OF WATERS OF THE UNITED STATES

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

    Authority: 33 U.S.C. 1344.

0
2. Section 328.3 is amended by revising paragraphs (a) through (d) and 
adding paragraphs (e) and (f) to read as follows:


Sec.  328.3  Definitions.

* * * * *
    (a) The term waters of the United States means
    (1) All waters which are currently used, or were used in the past, 
or may

[[Page 34905]]

be susceptible to use in interstate or foreign commerce, including all 
waters which are subject to the 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 purpose 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) through 
(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) through (6) of 
this section.
    (8) Waters of the United States do not include prior converted 
cropland. Notwithstanding the determination of an area's status as 
prior converted cropland by any other Federal agency, for the purposes 
of the Clean Water Act, the final authority regarding Clean Water Act 
jurisdiction remains with EPA.
    Waste treatment systems, including treatment ponds or lagoons 
designed to meet the requirements of CWA (other than cooling ponds as 
defined in 40 CFR 423.11(m) which also meet the criteria of this 
definition) are not waters of the United States.
    (b) The term wetlands means those areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.
    (c) The term adjacent means 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.''
    (d) The term high tide line means the line of intersection of the 
land with the water's surface at the maximum height reached by a rising 
tide. The high tide line may be determined, in the absence of actual 
data, by a line of oil or scum along shore objects, a more or less 
continuous deposit of fine shell or debris on the foreshore or berm, 
other physical markings or characteristics, vegetation lines, tidal 
gages, or other suitable means that delineate the general height 
reached by a rising tide. The line encompasses spring high tides and 
other high tides that occur with periodic frequency but does not 
include storm surges in which there is a departure from the normal or 
predicted reach of the tide due to the piling up of water against a 
coast by strong winds such as those accompanying a hurricane or other 
intense storm.
    (e) The term ordinary high water mark means that line on the shore 
established by the fluctuations of water and indicated by physical 
characteristics such as clear, natural line impressed on the bank, 
shelving, changes in the character of soil, destruction of terrestrial 
vegetation, the presence of litter and debris, or other appropriate 
means that consider the characteristics of the surrounding areas.
    (f) The term tidal waters means those waters that rise and fall in 
a predictable and measurable rhythm or cycle due to the gravitational 
pulls of the moon and sun. Tidal waters end where the rise and fall of 
the water surface can no longer be practically measured in a 
predictable rhythm due to masking by hydrologic, wind, or other 
effects.

Title 40--Protection of Environment

    For reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 110--DISCHARGE OF OIL

0
3. The authority citation for part 110 is revised to read as follows:

    Authority: 33 U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O. 
11735, 38 FR 21243, 3 CFR parts 1971-1975 Comp., p. 793.

0
4. Section 110.1 is amended by revising the definition of ``Navigable 
waters'' and adding the definition of ``Wetlands'' in alphabetical 
order to read as follows:


Sec.  110.1  Definitions.

* * * * *
    Navigable waters means the waters of the United States, including 
the territorial seas. The term includes:
    (a) All waters that are currently used, were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
all waters that are subject to the ebb and flow of the tide;
    (b) Interstate waters, including interstate wetlands;
    (c) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, and wetlands, 
the use, degradation, or destruction of which would affect or could 
affect interstate or foreign commerce including any such waters:
    (1) That are or could be used by interstate or foreign travelers 
for recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce;
    (3) That are used or could be used for industrial purposes by 
industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as navigable 
waters under this section;
    (e) Tributaries of waters identified in paragraphs (a) through (d) 
of this section, including adjacent wetlands; and
    (f) Wetlands adjacent to waters identified in paragraphs (a) 
through (e) of this section: Provided, That waste treatment systems 
(other than cooling ponds meeting the criteria of this paragraph) are 
not waters of the United States;
    Navigable waters do not include prior converted cropland. 
Notwithstanding the determination of an area's status as prior 
converted cropland by any other federal agency, for the purposes of the 
Clean Water Act, the final authority regarding Clean Water Act 
jurisdiction remains with EPA.
* * * * *
    Wetlands means those areas that are inundated or saturated by 
surface or ground water at a frequency or duration sufficient to 
support, and that under normal circumstances do support, a prevalence 
of vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include playa lakes, swamps, marshes, bogs and 
similar areas such as sloughs, prairie potholes, wet meadows, prairie 
river overflows, mudflats, and natural ponds.

PART 112--OIL POLLUTION PREVENTION

0
5. The authority citation for part 112 is revised to read as follows:

    Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777 
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.

0
6. Section 112.2 is amended by revising the definition of ``Navigable 
waters'' and adding the definition of

[[Page 34906]]

``Wetlands'' in alphabetical order to read as follows:


Sec.  112.2  Definitions.

* * * * *
    Navigable waters of the United States means ``navigable waters'' as 
defined in section 502(7) of the FWPCA, and includes:
    (1) All navigable waters of the United States, as defined in 
judicial decisions prior to passage of the 1972 Amendments to the FWPCA 
(Pub. L. 92-500), and tributaries of such waters;
    (2) Interstate waters;
    (3) Intrastate lakes, rivers, and streams which are utilized by 
interstate travelers for recreational or other purposes; and
    (4) Intrastate lakes, rivers, and streams from which fish or 
shellfish are taken and sold in interstate commerce.
* * * * *
    Wetlands means those areas that are inundated or saturated by 
surface or groundwater at a frequency or duration sufficient to 
support, and that under normal circumstances do support, a prevalence 
of vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include playa lakes, swamps, marshes, bogs, and 
similar areas such as sloughs, prairie potholes, wet meadows, prairie 
river overflows, mudflats, and natural ponds.
* * * * *

PART 116--DESIGNATION OF HAZARDOUS SUBSTANCES

0
7. The authority citation for part 116 is revised to read as follows:

    Authority:  Secs. 311(b)(2)(A) and 501(a), Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.).

0
8. Section 116.3 is amended by revising the definition of ``Navigable 
waters'' to read as follows:


Sec.  116.3  Definitions.

* * * * *
    Navigable waters is defined in section 502(7) of the Act to mean 
``waters of the United States, including the territorial seas,'' and 
includes, but is not limited to:
    (1) All waters which are presently used, or were used in the past, 
or may be susceptible to use as a means to transport interstate or 
foreign commerce, including all waters which are subject to the ebb and 
flow of the tide, and including adjacent wetlands; the term wetlands as 
used in this regulation shall include those areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevelance of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs and 
similar areas; the term adjacent means bordering, contiguous or 
neighboring;
    (2) Tributaries of navigable waters of the United States, including 
adjacent wetlands;
    (3) Interstate waters, including wetlands; and
    (4) All other waters of the United States such as intrastate lakes, 
rivers, streams, mudflats, sandflats and wetlands, the use, degradation 
or destruction of which affect interstate commerce including, but not 
limited to:
    (i) Intrastate lakes, rivers, streams, and wetlands which are 
utilized by interstate travelers for recreational or other purposes; 
and
    (ii) Intrastate lakes, rivers, streams, and wetlands from which 
fish or shellfish are or could be taken and sold in interstate 
commerce; and
    (iii) Intrastate lakes, rivers, streams, and wetlands which are 
utilized for industrial purposes by industries in interstate commerce.
    Navigable waters do not include prior converted cropland. 
Notwithstanding the determination of an area's status as prior 
converted cropland by any other federal agency, for the purposes of the 
Clean Water Act, the final authority regarding Clean Water Act 
jurisdiction remains with EPA.
* * * * *

PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS 
SUBSTANCES

0
9. The authority citation for part 117 is revised to read as follows:

    Authority: Secs. 311 and 501(a), Federal Water Pollution Control 
Act (33 U.S.C. 1251 et seq.), (``the Act'') and Executive Order 
11735, superseded by Executive Order 12777, 56 FR 54757.

0
10. Section 117.1 is amended by revising paragraph (i) to read as 
follows:


Sec.  117.1  Definitions.

* * * * *
    (i) Navigable waters means ``waters of the United States, including 
the territorial seas.'' This term includes:
    (1) All waters which are currently used, were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
all waters which are subject to the ebb and flow of the tide;
    (2) Interstate waters, including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams, 
(including intermittent streams), mudflats, sandflats, and wetlands, 
the use, degradation or destruction of which would affect or 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;
    (ii) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce;
    (iii) Which are used or could be used for industrial purposes by 
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as navigable 
waters under this paragraph;
    (5) Tributaries of waters identified in paragraphs (i)(1) through 
(4) of this section, including adjacent wetlands; and
    (6) Wetlands adjacent to waters identified in paragraphs (i)(1) 
through (5) of this section (``Wetlands'' means those areas that are 
inundated or saturated by surface or ground water at a frequency and 
duration sufficient to support, and that under normal circumstances do 
support, a prevalence of vegetation typically adapted for life in 
saturated soil conditions. Wetlands generally included playa lakes, 
swamps, marshes, bogs, and similar areas such as sloughs, prairie 
potholes, wet meadows, prairie river overflows, mudflats, and natural 
ponds): Provided, That waste treatment systems (other than cooling 
ponds meeting the criteria of this paragraph) are not waters of the 
United States.
    Navigable waters do not include prior converted cropland. 
Notwithstanding the determination of an area's status as prior 
converted cropland by any other federal agency, for the purposes of the 
Clean Water Act, the final authority regarding Clean Water Act 
jurisdiction remains with EPA.
* * * * *

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

0
11. The authority citation for part 122 continues to read as follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

0
12. Section 122.2 is amended by:
0
a. Lifting the suspension of the last sentence of the definition of 
``Waters of the United States'' published July 21, 1980 (45 FR 48620).
0
b. Revising the definition of ``Waters of the United States''.
0
c. Suspending the last sentence of the definition of ``Waters of the 
United States'' published July 21, 1980 (45 FR 48620).

[[Page 34907]]

0
d. Adding the definition of ``Wetlands''.
    The revision and addition read as follows:


Sec.  122.2  Definitions.

* * * * *
    Waters of the United States or waters of the U.S. means:
    (a) All waters which are currently used, were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
all waters which are subject to the ebb and flow of the tide;
    (b) All interstate waters, including interstate ``wetlands;''
    (c) 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 would affect or could 
affect interstate or foreign commerce including any such waters:
    (1) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or
    (3) Which are used or could be used for industrial purposes by 
industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as waters of the 
United States under this definition;
    (e) Tributaries of waters identified in paragraphs (a) through (d) 
of this definition;
    (f) The territorial sea; and
    (g) ``Wetlands'' adjacent to waters (other than waters that are 
themselves wetlands) identified in paragraphs (a) through (f) of this 
definition.
    Waste treatment systems, including treatment ponds or lagoons 
designed to meet the requirements of CWA (other than cooling ponds as 
defined in 40 CFR 423.11(m) which also meet the criteria of this 
definition) are not waters of the United States. This exclusion applies 
only to manmade bodies of water which neither were originally created 
in waters of the United States (such as disposal area in wetlands) nor 
resulted from the impoundment of waters of the United States. [See Note 
1 of this section.] Waters of the United States do not include prior 
converted cropland. Notwithstanding the determination of an area's 
status as prior converted cropland by any other federal agency, for the 
purposes of the Clean Water Act, the final authority regarding Clean 
Water Act jurisdiction remains with EPA.
    Note: At 45 FR 48620, July 21, 1980, the Environmental Protection 
Agency suspended until further notice in Sec.  122.2, the last 
sentence, beginning ``This exclusion applies . . .'' in the definition 
of ``Waters of the United States.'' This revision continues that 
suspension.
    Wetlands means those areas that are inundated or saturated by 
surface or groundwater at a frequency and duration sufficient to 
support, and that under normal circumstances do support, a prevalence 
of vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include swamps, marshes, bogs, and similar areas.
* * * * *

PART 230--SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF 
DISPOSAL SITES FOR DREDGED OR FILL MATERIAL

0
13. The authority citation for part 230 is revised to read as follows:

    Authority: Secs. 404(b) and 501(a) of the Clean Water Act of 
1977 (33 U.S.C. 1344(b) and 1361(a)).

0
14. Section 230.3 is amended by:
0
a. Redesignating paragraph (o) as paragraph (s).
0
b. Revising newly redesignated paragraph (s).
0
c. Redesignating paragraph (n) as paragraph (r).
0
d. Redesignating paragraph (m) as paragraph (q-1).
0
e. Redesignating paragraphs (h) through (l) as paragraphs (m) through 
(q).
0
f. Redesignating paragraphs (e) and (f) as paragraphs (h) and (i).
0
g. Redesignating paragraph (g) as paragraph (k).
0
h. Redesignating paragraphs (b) through (d) as paragraphs (c) through 
(e).
0
i. Adding reserved paragraphs (f), (g), (j), and (l).
0
j. Adding paragraphs (b) and (t).
    The revision and additions read as follows:


Sec.  230.3  Definitions.

* * * * *
    (b) The term adjacent means 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.''
* * * * *
    (s) The term waters of the United States means:
    (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 the 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 this definition;
    (5) Tributaries of waters identified in paragraphs (s)(1) through 
(4) of this section;
    (6) The territorial sea;
    (7) Wetlands adjacent to waters (other than waters that are 
themselves wetlands) identified in paragraphs (s)(1) through (6) of 
this section; waste treatment systems, including treatment ponds or 
lagoons designed to meet the requirements of CWA (other than cooling 
ponds as defined in 40 CFR 423.11(m) which also meet the criteria of 
this definition) are not waters of the United States.
    Waters of the United States do not include prior converted 
cropland. Notwithstanding the determination of an area's status as 
prior converted cropland by any other federal agency, for the purposes 
of the Clean Water Act, the final authority regarding Clean Water Act 
jurisdiction remains with EPA.
    (t) The term wetlands means those areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs and 
similar areas.

PART 232--404 PROGRAMS DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING 
404 PERMITS

0
15. The authority citation for part 232 is revised to read as follows:

    Authority:  33 U.S.C. 1344.

0
16. Section 232.2 is amended by revising the definition of ``Waters of 
the

[[Page 34908]]

United States'' and adding the definition of ``Wetlands'' to read as 
follows:


Sec.  232.2  Definitions.

* * * * *
    Waters of the United States means:
    All waters which are currently used, were used in the past, or may 
be susceptible to us in interstate or foreign commerce, including all 
waters which are subject to the ebb and flow of the tide.
    All interstate waters including interstate wetlands.
    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 would or could affect 
interstate or foreign commerce including any such waters:
    Which are or could be used by interstate or foreign travelers for 
recreational or other purposes; or
    From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or
    Which are used or could be used for industrial purposes by 
industries in interstate commerce.
    All impoundments of waters otherwise defined as waters of the 
United States under this definition;
    Tributaries of waters identified in paragraphs (g)(1)-(4) of this 
section;
    The territorial sea; and
    Wetlands adjacent to waters (other than waters that are themselves 
wetlands) identified in paragraphs (q)(1)-(6) of this section.
    Waste treatment systems, including treatment ponds or lagoons 
designed to meet the requirements of the Act (other than cooling ponds 
as defined in 40 CFR 123.11(m) which also meet the criteria of this 
definition) are not waters of the United States.
    Waters of the United States do not include prior converted 
cropland. Notwithstanding the determination of an area's status as 
prior converted cropland by any other federal agency, for the purposes 
of the Clean Water Act, the final authority regarding Clean Water Act 
jurisdiction remains with EPA.
    Wetlands means those areas that are inundated or saturated by 
surface or ground water at a frequency and duration sufficient to 
support, and that under normal circumstances do support, a prevalence 
of vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include swamps, marshes, bogs, and similar areas.

PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION 
CONTINGENCY PLAN

0
17. The authority citation for part 300 is revised to read as follows:

    Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 
13626, 77 FR 56749, 3 CFR, 2013 Comp., p.306; E.O. 12777, 56 FR 
54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 
Comp., p.193.

0
18. Section 300.5 is amended by revising the definition of ``Navigable 
waters'' to read as follows:


Sec.  300.5  Definitions.

* * * * *
    Navigable waters as defined by 40 CFR 110.1, means the waters of 
the United States, including the territorial seas. The term includes:
    (1) All waters that are currently used, were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
all waters that are subject to the ebb and flow of the tide;
    (2) Interstate waters, including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, and wetlands, 
the use, degradation, or destruction of which would affect or could 
affect interstate or foreign commerce including any such waters;
    (i) That are or could be used by interstate or foreign travelers 
for recreational or other purposes;
    (ii) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce;
    (iii) That are used or could be used for industrial purposes by 
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as navigable 
waters under this section;
    (5) Tributaries of waters identified in paragraphs (a) through (d) 
of this definition, including adjacent wetlands; and
    (6) Wetlands adjacent to waters identified in paragraphs (a) 
through (e) of this definition: Provided, that waste treatment systems 
(other than cooling ponds meeting the criteria of this paragraph) are 
not waters of the United States.
    (7) Waters of the United States do not include prior converted 
cropland. Notwithstanding the determination of an area's status as 
prior converted cropland by any other federal agency, for the purposes 
of the Clean Water Act, the final authority regarding Clean Water Act 
jurisdiction remains with EPA.
* * * * *
0
19. In appendix E to part 300, section 1.5 is amended by revising the 
definition of ``Navigable waters'' to read as follows:

Appendix E to Part 300--Oil Spill Response

* * * * *

1.5 Definitions * * *

    Navigable waters as defined by 40 CFR 110.1 means the waters of 
the United States, including the territorial seas. The term 
includes:
    (a) All waters that are currently used, were used in the past, 
or may be susceptible to use in interstate or foreign commerce, 
including all waters that are subject to the ebb and flow of the 
tide;
    (b) Interstate waters, including interstate wetlands;
    (c) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, and wetlands, 
the use, degradation, or destruction of which would affect or could 
affect interstate or foreign commerce including any such waters:
    (1) That are or could be used by interstate or foreign travelers 
for recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold 
in interstate or foreign commerce; and
    (3) That are used or could be used for industrial purposes by 
industries in interstate commerce.
    (d) All impoundments of waters otherwise defined as navigable 
waters under this section;
    (e) Tributaries of waters identified in paragraphs (a) through 
(d) of this definition, including adjacent wetlands; and
    (f) Wetlands adjacent to waters identified in paragraphs (a) 
through (e) of this definition: Provided, that waste treatment 
systems (other than cooling ponds meeting the criteria of this 
paragraph) are not waters of the United States.
    (g) Waters of the United States do not include prior converted 
cropland. Notwithstanding the determination of an area's status as 
prior converted cropland by any other federal agency, for the 
purposes of the Clean Water Act, the final authority regarding Clean 
Water Act jurisdiction remains with EPA.
* * * * *

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

0
20. The authority citation for part 302 is revised to read as follows:

    Authority:  42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and 
1361.

0
21. Section 302.3 is amended by revising the definition of ``Navigable 
waters'' to read as follows:


Sec.  302.3  Definitions.

* * * * *
    Navigable waters or navigable waters of the United States means 
waters of the

[[Page 34909]]

United States, including the territorial seas;
* * * * *

PART 401--GENERAL PROVISIONS

0
22. The authority citation for part 401 is revised to read as follows:

    Authority:  Secs. 301, 304 (b) and (c), 306 (b) and (c), 307 (b) 
and (c) and 316(b) of the Federal Water Pollution Control Act, as 
amended (the ``Act''), 33 U.S.C. 1251, 1311, 1314 (b) and (c), 1316 
(b) and (c), 1317 (b) and (c) and 1326(c); 86 Stat. 816 et seq.; 
Pub. L. 92-500.

0
23. Section 401.11 is amended by revising paragraph (l) to read as 
follows:


Sec.  401.11  General definitions.

* * * * *
    (l) The term navigable waters includes: All navigable waters of the 
United States; tributaries of navigable waters of the United States; 
interstate waters; intrastate lakes, rivers, and streams which are 
utilized by interstate travelers for recreational or other purposes; 
intrastate lakes, rivers, and streams from which fish or shellfish are 
taken and sold in interstate commerce; and intrastate lakes, rivers, 
and streams which are utilized for industrial purposes by industries in 
interstate commerce. Navigable waters do not include prior converted 
cropland. Notwithstanding the determination of an area's status as 
prior converted cropland by any other federal agency, for the purposes 
of the Clean Water Act, the final authority regarding Clean Water Act 
jurisdiction remains with EPA.
* * * * *
[FR Doc. 2017-13997 Filed 7-26-17; 8:45 am]
 BILLING CODE 6560-50-P