[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
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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.
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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\
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\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.
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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]
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