82 FR 12532 - Intention To Review and Rescind or Revise the Clean Water Rule

DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 82, Issue 42 (March 6, 2017)

Page Range		12532-12532
FR Document		2017-04312

In accordance with a Presidential directive, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) announces its intention to review and rescind or revise the Clean Water Rule.

Federal Register, Volume 82 Issue 42 (Monday, March 6, 2017)

[Federal Register Volume 82, Number 42 (Monday, March 6, 2017)]
[Proposed Rules]
[Page 12532]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-04312]



[[Page 12532]]

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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

[FRL-9959-93-OW]


Intention To Review and Rescind or Revise the Clean Water Rule

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

ACTION: Notice of intent.

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SUMMARY: In accordance with a Presidential directive, the U.S. 
Environmental Protection Agency (EPA) and the Department of the Army 
(Army) announces its intention to review and rescind or revise the 
Clean Water Rule.

DATES: March 6, 2017.

FOR FURTHER INFORMATION, CONTACT: Ms. Donna Downing, Office of Water 
(4502-T), Environmental Protection Agency, 1200 Pennsylvania Avenue 
NW., Washington, DC 20460; telephone number 202-566-2428; email 
[email protected], and Mr. Gib Owen, Office of the Assistant Secretary 
of the Army for Civil Works, Department of the Army, 104 Army Pentagon, 
Washington, DC 20310-0104; telephone number 703-695-4641; email 
[email protected].

SUPPLEMENTARY INFORMATION: The Federal Water Pollution Control Act, 
originally enacted in 1948, most comprehensively amended in 1972, and 
known as the Clean Water Act (CWA), seeks ``to restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters.'' 
33 U.S.C. 1251 et seq. Among other provisions, the CWA regulates the 
discharge of pollutants into ``navigable waters,'' defined in the CWA 
as ``the waters of the United States.'' The question of what is a 
``water of the United States'' is one that has generated substantial 
interest and uncertainty, especially among states, small businesses, 
the agricultural communities, and environmental organizations, because 
it relates to the extent of jurisdiction for federal and relevant state 
regulations.
    The EPA and the Department of the Army (collectively, the agencies) 
have promulgated a series of regulations defining ``waters of the 
United States.'' The scope of ``waters of the United States'' as 
defined by the prior regulations has been subject to litigation in 
several U.S. Supreme Court cases, most recently in Rapanos v. United 
States, 547 U.S. 715 (2006) (``Rapanos''). In response to that 
decision, the agencies issued guidance regarding CWA jurisdiction in 
2007, and revised it in 2008.
    In response to that 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. At the conclusion of that rulemaking process, the 
agencies issued the ``Clean Water Rule: Definition of `Waters of the 
United States.' '' 80 FR 37054 (``2015 Rule'') (found at 40 CFR 110, 
112, 116, 117, 122, 230, 232, 300, 302 and 401, and 33 CFR 328).
    Due to concerns about the potential for continued regulatory 
uncertainty, as well as the scope and legal authority of the 2015 Rule, 
31 states and a number of other parties sought judicial review in 
multiple actions. Seven states plus the District of Columbia, and an 
additional number of parties, then intervened in those cases. 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.
    On February 28, 2017, the President of the United States issued an 
Executive Order directing the EPA and the Army to review and rescind or 
revise the 2015 Rule. Today, the EPA and the Army announce their 
intention to review that rule, and provide advanced notice of a 
forthcoming proposed rulemaking consistent with the Executive Order. In 
doing so, the agencies will consider interpreting the term ``navigable 
waters,'' as defined in the CWA in a manner consistent with the opinion 
of Justice Scalia in Rapanos. It is important that stakeholders and the 
public at large have certainty as to how the CWA applies to their 
activities.
    Agencies have inherent authority to reconsider past decisions and 
to revise, replace or repeal a decision to the extent permitted by law 
and supported by a reasoned explanation. FCC v. Fox Television 
Stations, Inc., 556 U.S. 502, 515 (2009) (``Fox''); Motor Vehicle 
Manufacturers Ass'n of the United States, Inc., et al, v. State Farm 
Mutual Automobile Insurance Co., et al. 463 U.S. 29, 42 (1983) (``State 
Farm''). Importantly, such a revised decision need not be based upon a 
change of facts or circumstances. A revised rulemaking based ``on a 
reevaluation 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 the 
costs and benefits of its programs and regulations.'' National 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; quoting State Farm, 463 U.S. at 59 
(Rehnquist, J., concurring in part and dissenting in part)).
    Through new rulemaking, the EPA and the Army seek to provide 
greater clarity and regulatory certainty concerning the definition of 
``waters of the United States,'' consistent with the principles 
outlined in the Executive Order and the agencies' legal authority.

    Dated: February 28, 2017.
E. Scott Pruitt,
Administrator, Environmental Protection Agency.
    Dated: February 28, 2017.

Douglas W. Lamont,
 Senior Offical Performing the Duties of the Assistant Secretary of the 
Army for Civil Works, Department of the Army.
[FR Doc. 2017-04312 Filed 3-3-17; 8:45 am]
 BILLING CODE 6560-50-P

12532 Federal Register / Vol. 82, No. 42 / Monday, March 6, 2017 / Proposed Rules

DEPARTMENT OF DEFENSE United States’’ is one that has generated interpreting the term ‘‘navigable
substantial interest and uncertainty, waters,’’ as defined in the CWA in a
Department of the Army, Corps of especially among states, small manner consistent with the opinion of
Engineers businesses, the agricultural Justice Scalia in Rapanos. It is
communities, and environmental important that stakeholders and the
33 CFR Part 328 organizations, because it relates to the public at large have certainty as to how
extent of jurisdiction for federal and the CWA applies to their activities.
ENVIRONMENTAL PROTECTION relevant state regulations.
AGENCY Agencies have inherent authority to
The EPA and the Department of the
reconsider past decisions and to revise,
Army (collectively, the agencies) have
40 CFR Parts 110, 112, 116, 117, 122, promulgated a series of regulations replace or repeal a decision to the extent
230, 232, 300, 302, and 401 defining ‘‘waters of the United States.’’ permitted by law and supported by a
The scope of ‘‘waters of the United reasoned explanation. FCC v. Fox
[FRL–9959–93–OW] Television Stations, Inc., 556 U.S. 502,
States’’ as defined by the prior
regulations has been subject to litigation 515 (2009) (‘‘Fox’’); Motor Vehicle
Intention To Review and Rescind or Manufacturers Ass’n of the United
Revise the Clean Water Rule in several U.S. Supreme Court cases,
most recently in Rapanos v. United States, Inc., et al, v. State Farm Mutual
AGENCY: U.S. Army Corps of Engineers States, 547 U.S. 715 (2006) (‘‘Rapanos’’). Automobile Insurance Co., et al. 463
(Corps), Department of the Army, In response to that decision, the U.S. 29, 42 (1983) (‘‘State Farm’’).
Department of Defense; Environmental agencies issued guidance regarding Importantly, such a revised decision
Protection Agency (EPA). CWA jurisdiction in 2007, and revised need not be based upon a change of
ACTION: Notice of intent. it in 2008. facts or circumstances. A revised
In response to that guidance, rulemaking based ‘‘on a reevaluation of
SUMMARY: In accordance with a Members of Congress, developers, which policy would be better in light of
Presidential directive, the U.S. farmers, state and local governments, the facts’’ is ‘‘well within an agency’s
Environmental Protection Agency (EPA) environmental organizations, energy discretion,’’ and ‘‘[a] change in
and the Department of the Army (Army) companies and others asked the administration brought about by the
announces its intention to review and agencies to replace the guidance with a people casting their votes is a perfectly
rescind or revise the Clean Water Rule. regulation. At the conclusion of that reasonable basis for an executive
DATES: March 6, 2017. rulemaking process, the agencies issued agency’s reappraisal of the costs and
FOR FURTHER INFORMATION, CONTACT: Ms. the ‘‘Clean Water Rule: Definition of benefits of its programs and
Donna Downing, Office of Water (4502– ‘Waters of the United States.’ ’’ 80 FR regulations.’’ National Ass’n of Home
T), Environmental Protection Agency, 37054 (‘‘2015 Rule’’) (found at 40 CFR Builders v. EPA, 682 F.3d 1032, 1038 &
1200 Pennsylvania Avenue NW., 110, 112, 116, 117, 122, 230, 232, 300, 1043 (D.C. Cir. 2012) (citing Fox, 556
Washington, DC 20460; telephone 302 and 401, and 33 CFR 328). U.S. at 514–15; quoting State Farm, 463
number 202–566–2428; email Due to concerns about the potential U.S. at 59 (Rehnquist, J., concurring in
CWAwaters@epa.gov, and Mr. Gib for continued regulatory uncertainty, as part and dissenting in part)).
Owen, Office of the Assistant Secretary well as the scope and legal authority of
of the Army for Civil Works, Through new rulemaking, the EPA
the 2015 Rule, 31 states and a number
Department of the Army, 104 Army and the Army seek to provide greater
of other parties sought judicial review in
Pentagon, Washington, DC 20310–0104; clarity and regulatory certainty
multiple actions. Seven states plus the
telephone number 703–695–4641; email concerning the definition of ‘‘waters of
District of Columbia, and an additional
gib.a.owen.civ@mail.mil. the United States,’’ consistent with the
number of parties, then intervened in
principles outlined in the Executive
SUPPLEMENTARY INFORMATION: The those cases. On October 9, 2015, the
Order and the agencies’ legal authority.
Federal Water Pollution Control Act, U.S. Court of Appeals for the Sixth
originally enacted in 1948, most Circuit stayed the 2015 Rule nationwide Dated: February 28, 2017.
comprehensively amended in 1972, and pending further action of the court. E. Scott Pruitt,
known as the Clean Water Act (CWA), On February 28, 2017, the President Administrator, Environmental Protection
seeks ‘‘to restore and maintain the of the United States issued an Executive Agency.
chemical, physical, and biological Order directing the EPA and the Army Dated: February 28, 2017.
integrity of the Nation’s waters.’’ 33 to review and rescind or revise the 2015
U.S.C. 1251 et seq. Among other Rule. Today, the EPA and the Army Douglas W. Lamont,
provisions, the CWA regulates the announce their intention to review that Senior Offical Performing the Duties of the
discharge of pollutants into ‘‘navigable rule, and provide advanced notice of a Assistant Secretary of the Army for Civil
waters,’’ defined in the CWA as ‘‘the forthcoming proposed rulemaking Works, Department of the Army.
waters of the United States.’’ The consistent with the Executive Order. In [FR Doc. 2017–04312 Filed 3–3–17; 8:45 am]
question of what is a ‘‘water of the doing so, the agencies will consider BILLING CODE 6560–50–P
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

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Document Created: 2017-03-04 00:06:57
Document Modified: 2017-03-04 00:06:57

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Notice of intent.
Dates		March 6, 2017.
FR Citation		82 FR 12532
CFR Citation		33 CFR 328 40 CFR 110 40 CFR 112 40 CFR 116 40 CFR 117 40 CFR 122 40 CFR 230 40 CFR 232 40 CFR 300 40 CFR 302 40 CFR 401

82 FR 12532 - Intention To Review and Rescind or Revise the Clean Water Rule

DEPARTMENT OF DEFENSEDepartment of the Army, Corps of EngineersENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 82, Issue 42 (March 6, 2017)

DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
ENVIRONMENTAL PROTECTION AGENCY