82 FR 34899 - Definition of “Waters of the United States”-Recodification of Pre-Existing Rules
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 82, Issue 143 (July 27, 2017)
Department of the Army, Corps of Engineers
ENVIRONMENTAL PROTECTION AGENCY
Federal Register Volume 82, Issue 143 (July 27, 2017)
| Page Range | 34899-34909 | |
| FR Document | 2017-13997 |
[Federal Register Volume 82, Number 143 (Thursday, July 27, 2017)] [Proposed Rules] [Pages 34899-34909] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-13997] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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
![Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Proposed Rules 34899
Consistent with the Act, this responsible for ensuring delivery of all States’’ in the Code of Federal
document requests that interested appropriately prepared proposed Regulations to re-codify the definition of
persons provide proposed changes to changes to the MHCC for its review and ‘‘waters of the United States,’’ which
revise or update the Manufactured consideration. currently governs administration of the
Home Construction and Safety Clean Water Act, pursuant to a decision
Paperwork Reduction Act
Standards, the Manufactured Home issued by the U.S. Court of Appeals for
Procedural and Enforcement The information collection the Sixth Circuit staying a definition of
Regulations, the Model Manufactured requirements contained in this ‘‘waters of the United States’’
Home Installation Standards, and document have been approved by the promulgated by the agencies in 2015.
Manufactured Home Installation Office of Management and Budget The agencies would apply the definition
Program Regulations. Specifically, (OMB) under the Paperwork Reduction of ‘‘waters of the United States’’ as it is
recommendations are requested that Act of 1995 (44 U.S.C. 3501–3520), and currently being implemented, that is
further HUD’s efforts to increase the assigned OMB Control Number 2535– informed by applicable agency guidance
quality, durability, safety and 0116. In accordance with the Paperwork documents and consistent with
affordability of manufactured homes; Reduction Act, an agency may not Supreme Court decisions and
facilitate the availability of affordable conduct or sponsor, and a person is not longstanding practice. Proposing to re-
manufactured homes and increase required to respond to, a collection of codify the regulations that existed
homeownership for all Americans; and information, unless the collection before the 2015 Clean Water Rule will
encourage cost-effective and innovative displays a currently valid OMB control provide continuity and certainty for
construction techniques for number. regulated entities, the States, agency
manufactured homes. Dated: July 19, 2017. staff, and the public. In a second step,
To permit the MHCC to fully consider the agencies will pursue notice-and-
Pamela Beck Danner,
the proposed changes, commenters are comment rulemaking in which the
encouraged to provide at least the Administrator, Office of Manufactured
Housing Programs. agencies will conduct a substantive re-
following information: evaluation of the definition of ‘‘waters
• The specific section of the current [FR Doc. 2017–15574 Filed 7–26–17; 8:45 am]
of the United States.’’
Manufactured Home Construction and BILLING CODE P
DATES: Comments must be received on
Safety Standards, Manufactured Home or before August 28, 2017.
Procedural and Enforcement
ADDRESSES: Submit your comments,
Regulations, Model Manufactured Home DEPARTMENT OF DEFENSE
identified by Docket ID No. EPA–HQ–
Installation Standards, or Manufactured
Department of the Army, Corps of OW–2017–0203, at http://
Home Installation Program Regulations
Engineers www.regulations.gov. Follow the online
that require revision or update, or
instructions for submitting comments.
whether the recommendation would
require a new standard; 33 CFR Part 328 Once submitted, comments cannot be
• Specific detail regarding the edited or removed from Regulations.gov.
recommendation including a statement ENVIRONMENTAL PROTECTION The agencies may publish any comment
of the problem intended to be corrected AGENCY received to the public docket. Do not
or addressed by the recommendation, submit electronically any information
how the recommendation would resolve 40 CFR Parts 110, 112, 116, 117, 122, you consider to be Confidential
or address the problem, and the basis of 230, 232, 300, 302, and 401 Business Information (CBI) or other
the recommendation; and information whose disclosure is
[EPA–HQ–OW–2017–0203; FRL–9962–34–
• Information regarding whether the OW]
restricted by statute. Multimedia
recommendation would result in submissions (audio, video, etc.) must be
increased costs to manufacturers or RIN 2040–AF74 accompanied by a written comment.
consumers and the value of the benefits The written comment is considered the
derived from HUD’s implementation of Definition of ‘‘Waters of the United official comment and should include
the recommendation, should be States’’—Recodification of Pre-Existing discussion of all points you wish to
provided and discussed to the extent Rules make. The agencies will generally not
feasible. AGENCY: Department of the Army, Corps consider comments or comment
The Act requires that an of Engineers, Department of Defense; contents located outside of the primary
administering organization administer and Environmental Protection Agency submission (i.e., on the web, cloud, or
the process for the MHCC’s (EPA). other file sharing system). For
development and interpretation of the additional submission methods, the full
ACTION: Proposed rule.
Manufactured Home Construction and EPA public comment policy,
Safety Standards, Manufactured Home SUMMARY: The Environmental Protection information about CBI or multimedia
Procedural and Enforcement Agency and the Department of the Army submissions, and general guidance on
Regulations, Model Manufactured Home (‘‘the agencies’’) are publishing this making effective comments, please visit
Installation Standards, and proposed rule to initiate the first step in http://www2.epa.gov/dockets/
Manufactured Home Installation a comprehensive, two-step process commenting-epa-dockets.
Program Regulations. The administering intended to review and revise the FOR FURTHER INFORMATION CONTACT: Ms.
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organization that has been selected by definition of ‘‘waters of the United Donna Downing, Office of Water (4504–
HUD to administer this process is Home States’’ consistent with the Executive T), Environmental Protection Agency,
Innovation Research Labs Inc. This Order signed on February 28, 2017, 1200 Pennsylvania Avenue NW.,
document requests that proposed ‘‘Restoring the Rule of Law, Federalism, Washington, DC 20460; telephone
revisions be submitted to the MHCC for and Economic Growth by Reviewing the number: (202) 566–2428; email address:
consideration through the administering ‘Waters of the United States’ Rule.’’ This CWAwotus@epa.gov; or Ms. Stacey
organization, Home Innovation Research first step proposes to rescind the Jensen, Regulatory Community of
Labs. This organization will be definition of ‘‘waters of the United Practice (CECW–CO–R), U.S. Army
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![34900 Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Proposed Rules
Corps of Engineers, 441 G Street NW., decisions and longstanding agency (51 FR 41206, Nov. 13, 1986, amending
Washington, DC 20314; telephone practice. 33 CFR 328.3; 53 FR 20764, June 6,
number: (202) 761–5903; email address: 1988, amending 40 CFR 232.2).
B. History and the Purpose of This Federal courts have reviewed the
USACE_CWA_Rule@usace.army.mil.
Rulemaking definition of ‘‘waters of the United
SUPPLEMENTARY INFORMATION: The Congress enacted the Federal Water States’’ and its application to a variety
regulatory definition of ‘‘waters of the Pollution Control Act Amendments of of factual circumstances. Three
United States’’ in this proposed rule is 1972, Public Law 92–500, 86 Stat. 816, Supreme Court decisions, in particular,
the same as the definition that existed as amended, Public Law 95–217, 91 provide critical context and guidance in
prior to promulgation of the Clean Stat. 1566, 33 U.S.C. 1251 et seq. determining the appropriate scope of
Water Rule in 2015 and that has been in (‘‘Clean Water Act’’ or ‘‘CWA’’ or ‘‘Act’’) ‘‘waters of the United States.’’
effect nationwide since the Clean Water ‘‘to restore and maintain the chemical, In United States v. Riverside Bayview
Rule was stayed on October 9, 2015. The physical and biological integrity of the Homes, 474 U.S. 121 (1985) (Riverside),
agencies will administer the regulations Nation’s waters.’’ Section 101(a). A the Court, in a unanimous opinion,
as they are currently being implemented primary tool in achieving that purpose deferred to the Corps’ ecological
consistent with Supreme Court is a prohibition on the discharge of any judgment that adjacent wetlands are
decisions and longstanding practice as pollutants, including dredged or fill ‘‘inseparably bound up’’ with the waters
informed by applicable agency guidance material, to ‘‘navigable waters’’ except to which they are adjacent, and upheld
documents. in accordance with the Act. Section the inclusion of adjacent wetlands in
State, tribal, and local governments 301(a). The CWA provides that ‘‘[t]he the regulatory definition of ‘‘waters of
have well-defined and longstanding term ‘navigable waters’ means the the United States.’’ Id. at 134.
relationships with the federal waters of the United States, including In Solid Waste Agency of Northern
government in implementing CWA the territorial seas.’’ Section 502(7). Cook County v. U.S. Army Corps of
programs and these relationships are not The CWA also provides that States Engineers, 531 U.S. 159 (2001)
altered by the proposed rule. This retain their traditional role in (SWANCC), the Supreme Court held
proposed rule will not establish any preventing, reducing and eliminating that the use of ‘‘isolated’’ non-navigable
new regulatory requirements. Rather, pollution. The Act states that ‘‘[i]t is the intrastate ponds by migratory birds was
the rule simply codifies the current legal policy of the Congress to recognize, not by itself a sufficient basis for the
status quo while the agencies engage in preserve, and protect the primary exercise of federal regulatory authority
a second, substantive rulemaking to responsibilities and rights of States to under the CWA. The SWANCC decision
reconsider the definition of ‘‘waters of prevent, reduce, and eliminate created uncertainty with regard to the
the United States.’’ pollution, to plan the development and jurisdiction of other isolated non-
use (including restoration, preservation, navigable waters and wetlands. In
I. Executive Summary and enhancement) of land and water January 2003, EPA and the Corps issued
A. What This Proposed Rule Does resources . . .’’ Section 101(b). States joint guidance interpreting the Supreme
and Tribes voluntarily may assume Court decision in SWANCC (‘‘the 2003
In this proposed rule, the agencies responsibility for permit programs Guidance’’). The guidance indicated
define the scope of ‘‘waters of the governing discharges of pollution under that SWANCC focused on isolated,
United States’’ that are protected under section 402 for any jurisdictional water intrastate, non-navigable waters, and
the Clean Water Act (CWA). In 2015, the bodies (section 402(b)), or of dredged or called for field staff to coordinate with
agencies published the ‘‘Clean Water fill material discharges under section their respective Corps or EPA
Rule: Definition of ‘Waters of the United 404 (section 404(g)), with agency Headquarters on jurisdictional
States’’’ (80 FR 37054, June 29, 2015), approval. (Section 404(g) provides that determinations which asserted
and on October 9, 2015, the U.S. Court states may not assume permitting jurisdiction for waters under 33 CFR
of Appeals for the Sixth Circuit stayed authority over certain specified waters 328.3(a)(3)(i) through (iii). Waters that
the 2015 Rule nationwide pending and their adjacent wetlands.) States are were jurisdictional pursuant to 33 CFR
further action of the court. The agencies also free to establish their own programs 328.3(a)(3) could no longer be
propose to replace the stayed 2015 under state law to manage and protect determined jurisdictional based solely
definition of ‘‘waters of the United waters and wetlands independent of the on their use by migratory birds.
States’’, and re-codify the exact same federal CWA. The statute’s introductory Five years after the SWANCC
regulatory text that existed prior to the purpose section thus commands the decision, in Rapanos v. United States,
2015 rule, which reflects the current Environmental Protection Agency (EPA) 547 U.S. 715 (2006) (Rapanos), a four-
legal regime under which the agencies to pursue two policy goals Justice plurality opinion in Rapanos,
are operating pursuant to the Sixth simultaneously: (a) To restore and authored by Justice Scalia, interpreted
Circuit’s October 9, 2015 order. The maintain the nation’s waters; and (b) to the term ‘‘waters of the United States’’
proposed regulatory text would thus preserve the States’ primary as covering ‘‘relatively permanent,
replace the stayed rulemaking text, and responsibility and right to prevent, standing or continuously flowing bodies
re-codify the regulatory definitions (at reduce, and eliminate pollution. of water . . . ,’’ id. at 739, that are
33 CFR part 328 and 40 CFR parts 110; The regulations defining the scope of connected to traditional navigable
112; 116; 117; 122; 230; 232; 300; 302; federal CWA jurisdiction currently in waters, id. at 742, as well as wetlands
and 401) in the Code of Federal effect, which this proposed rule would with a ‘‘continuous surface connection
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Regulations (CFR) as they existed prior recodify, were established in large part . . .’’ to such water bodies, id. (Scalia,
to the promulgation of the stayed 2015 in 1977 (42 FR 37122, July 19, 1977). J., plurality opinion). The Rapanos
definition. If this proposed rule is While EPA administers most provisions plurality noted that its reference to
finalized, the agencies would continue in the CWA, the U.S. Army Corps of ‘‘relatively permanent’’ waters did ‘‘not
to implement those prior regulatory Engineers (Corps) administers the necessarily exclude streams, rivers, or
definitions), informed by applicable permitting program under section 404. lakes that might dry up in extraordinary
agency guidance documents and During the 1980s, both of these agencies circumstances, such as drought,’’ or
consistent with Supreme Court adopted substantially similar definitions ‘‘seasonal rivers, which contain
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continuous flow during some months of actions in Federal district courts and Executive Order also directs the
the year but no flow during dry months Circuit Courts of Appeal, raising agencies to consider interpreting the
. . .’’ Id. at 732 n.5 (emphasis in concerns about the scope and legal term ‘‘navigable waters’’ in a manner
original). Justice Kennedy concurred authority of the 2015 rule. One district consistent with Justice Scalia’s plurality
with the plurality judgment, but court issued an order granting a motion opinion in Rapanos. Section 3.
concluded that the appropriate test for for preliminary injunction on the rule’s The agencies have the authority to
the scope of jurisdictional waters is effective date, finding that the thirteen rescind and revise the regulatory
whether a water or wetland possesses a State challengers were likely to succeed definition of ‘‘waters of the United
‘‘ ‘significant nexus’ to waters that are or on their claims, including that the rule States,’’ consistent with the guidance in
were navigable in fact or that could violated the congressional grant of the Executive Order, so long as the
reasonably be so made.’’ Id. at 759. The authority to the agencies under the revised definition is authorized under
four dissenting Justices in Rapanos, CWA and that it appeared likely the the law and based on a reasoned
who would have affirmed the court of EPA failed to comply with explanation. FCC v. Fox Television
appeals’ application of the agencies’ Administrative Procedure Act (APA) Stations, Inc., 556 U.S. 502, 515 (2009)
regulations, also concluded that the requirements in promulgating the rule. (‘‘Fox’’). Importantly, such a revised
term ‘‘waters of the United States’’ State of North Dakota et al. v. US EPA, decision need not be based upon a
encompasses, inter alia, all tributaries No. 15–00059, slip op. at 1–2 (D.N.D. change of facts or circumstances. A
and wetlands that satisfy ‘‘either the Aug. 27, 2015, as clarified by order revised rulemaking based ‘‘on a re-
plurality’s [standard] or Justice issued on September 4, 2015). Several evaluation of which policy would be
Kennedy’s.’’ Id. at 810 & n.14 (Stevens, weeks later, the Sixth Circuit stayed the better in light of the facts’’ is ‘‘well
J., dissenting). 2015 rule nationwide to restore the within an agency’s discretion,’’ and ‘‘[a]
While the SWANCC and Rapanos ‘‘pre-Rule regime, pending judicial change in administration brought about
decisions limited the way the agencies’ review.’’ In re U.S. Dep’t. of Def. and by the people casting their votes is a
longstanding regulatory definition of U.S. Envtl. Protection Agency Final perfectly reasonable basis for an
‘‘waters of the United States’’ was Rule: Clean Water Rule, No. 15–3751 executive agency’s reappraisal’’ of its
implemented, in neither case did the (lead), slip op. at 6. The Sixth Circuit regulations and programs. Nat’l Ass’n of
Court invalidate that definition. found that the petitioners had Home Builders v. EPA, 682 F.3d 1032,
After the Rapanos decision, the demonstrated a substantial possibility of 1038 & 1043 (D.C. Cir. 2012) (citing Fox,
agencies issued joint guidance in 2007 success on the merits, including with 556 U.S. at 514–15 (Rehnquist, J.,
to address the waters at issue in that regard to claims that certain provisions concurring in part and dissenting in
decision but did not change the codified of the rule were at odds with the part)).
definition. The guidance indicated that The Executive Order states that it is
Rapanos decision and that the distance
‘‘waters of the United States’’ included in the national interest to protect the
limitations in the rule were not
traditional navigable waters and their nation’s waters from pollution as well as
substantiated by scientific support.
adjacent wetlands, relatively permanent to allow for economic growth, ensuring
Pursuant to the court’s order, the
waters and wetlands that abut them, and regulatory clarity, and providing due
agencies have implemented the statute
waters with a significant nexus to a deference to States, as well as Congress.
pursuant to the regulatory regime that
traditional navigable water. The Executive Order section 1. These
preceded the 2015 rule. On January 13,
guidance did not address waters not at various priorities reflect, in part the
2017, the U.S. Supreme Court granted
issue in Rapanos, such as interstate CWA itself, which includes both the
certiorari on the question of whether the
waters and the territorial seas. The objective to ‘‘restore and maintain’’ the
court of appeals has original jurisdiction
guidance was reissued in 2008 with integrity of the nation’s waters, as well
minor changes (hereinafter, the ‘‘2008 to review challenges to the 2015 rule.
as the policy to ‘‘recognize, preserve,
guidance’’).1 The Sixth Circuit granted petitioners’
and protect the primary responsibilities
After issuance of the 2008 guidance, motion to hold in abeyance the briefing
and right of States to prevent, reduce,
Members of Congress, developers, schedule in the litigation challenging
and eliminate pollution . . .’’ CWA
farmers, state and local governments, the 2015 rule pending a Supreme Court
sections 101(a), 101(b). Re-evaluating
environmental organizations, energy decision on the question of the court of
the best means of balancing these
companies and others asked the appeals’ jurisdiction.
statutory priorities, as called for in the
agencies to replace the guidance with a On February 28, 2017, the President Executive Order, is well within the
regulation that would provide clarity of the United States issued an Executive scope of authority that Congress has
and certainty on the scope of the waters Order entitled ‘‘Restoring the Rule of delegated to the agencies under the
protected by the CWA. Law, Federalism, and Economic Growth CWA.
Following public notice and comment by Reviewing the ‘Waters of the United This rulemaking is the first step in a
on a proposed rule, the agencies States’ Rule.’’ Section 1 of the Order two-step response to the Executive
published a final rule defining the scope states, ‘‘[i]t is in the national interest to Order, intended to ensure certainty as to
of ‘‘waters of the United States’’ on June ensure that the Nation’s navigable the scope of CWA jurisdiction on an
29, 2015 (80 FR 37054). Thirty-one waters are kept free from pollution, interim basis as the agencies proceed to
States and a number of other parties while at the same time promoting engage in the second step: A substantive
sought judicial review in multiple economic growth, minimizing review of the appropriate scope of
regulatory uncertainty, and showing due ‘‘waters of the United States.’’
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1 The guidance expressly stated that it was not
regard for the roles of the Congress and
intended to create any legally binding requirements, the States under the Constitution.’’ It C. This Proposed Rule
and that ‘‘interested persons are free to raise
questions about the appropriateness of the directs the EPA and the Army to review In this proposed rule, the agencies
application of this guidance to a particular the 2015 rule for consistency with the would rescind the 2015 Clean Water
situation, and EPA and/or the Corps will consider policy outlined in section 1, and to Rule and replace it with a recodification
whether or not the recommendations or
interpretations of this guidance are appropriate in
issue a proposed rule rescinding or of the regulatory text that governed the
that situation based on the statutes, regulations, and revising the 2015 rule as appropriate legal regime prior to the 2015 Clean
case law.’’ 2008 guidance at 4 n. 17. and consistent with law. Section 2. The Water Rule and that the agencies are
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![34902 Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Proposed Rules
currently implementing under the court that what constitutes a ‘‘significant CWA sections 402 and 404.’’ Id. The
stay, informed by applicable guidance nexus’’ to navigable waters ‘‘is not a agencies also noted that ‘‘States and
documents (e.g., the 2003 and 2008 purely scientific determination’’ and federally-recognized tribes, consistent
guidance documents, as well as relevant that ‘‘science does not provide bright with the CWA, retain full authority to
memoranda and regulatory guidance line boundaries with respect to where implement their own programs to more
letters), and consistent with the ‘water ends’ for purposes of the CWA.’’ broadly and more fully protect the
SWANCC and Rapanos Supreme Court 80 FR at 37060.2 waters in their jurisdiction.’’ Id. at
decisions, applicable case law, and The objectives, goals, and policies of 37060. However, the agencies did not
longstanding agency practice. The the statute are detailed in sections include a discussion in the 2015 rule
proposal retains exclusions from the 101(a)–(g) of the statute, and guide the preamble of the meaning and
definition of ‘‘waters of the United agencies’ interpretation and application importance of section 101(b) in guiding
States’’ for prior converted cropland and of the Clean Water Act. Section 101(a) the choices the agencies make in setting
waste treatment systems, both of which of the Act states that the ‘‘objective of the outer bounds of jurisdiction of the
existed before the 2015 regulations were this chapter is to restore and maintain Act, despite the recognition that the rule
issued. Nothing in this proposed rule the chemical, physical, and biological must be drafted ‘‘in light of the goals,
restricts the ability of States to protect integrity of the Nation’s waters,’’ and objectives, and policies of the statute.’’
waters within their boundaries by identifies several goals and national In the two-step rulemaking process
defining the scope of waters regulated policies Congress believed would help commencing with today’s notice, the
under State law more broadly than the the Act achieve that objective. 33 U.S.C. agencies will more fully consider the
federal law definition. 1251(a). When referring to the Act’s policy in section 101(b) when exercising
objective, the 2015 rule referred their discretion to delineate the scope of
D. Rationale for This Rulemaking specifically to Section 101(a). 80 FR at waters of the U.S., including the extent
This rulemaking action is consistent 37056. to which states or tribes have protected
with the February 28, 2017, Executive In addition to the objective of the Act or may protect waters that are not
Order and the Clean Water Act. This and the goals and policies identified to subject to CWA jurisdiction.
action will consist of two steps. In this help achieve that objective in section The scope of CWA jurisdiction is an
first step, the agencies are proposing as 101(a), in section 101(b) Congress issue of great national importance and
an interim action to repeal the 2015 articulated that it is ‘‘the policy of the therefore the agencies will allow for
definition of ‘‘waters of the United Congress’’ to recognize, preserve, and robust deliberations on the ultimate
States’’ and codify the legal status quo protect the primary responsibilities and regulation. While engaging in such
that is being implemented now under rights of States to prevent, reduce, and deliberations, however, the agencies
the Sixth Circuit stay of the 2015 eliminate pollution, to plan the recognize the need to provide as an
definition of ‘‘waters of the United development and use (including interim step for regulatory continuity
States’’ and that was in place for restoration, preservation, and and clarity for the many stakeholders
decades prior to the 2015 rule. This enhancement) of land and water affected by the definition of ‘‘waters of
regulatory text would, pending resources, and to consult with the the United States.’’ The pre-CWR
completion of the second step in the Administrator in the exercise of his or regulatory regime is in effect as a result
two-step process, continue to be her authority. Section 101(b) also states of the Sixth Circuit’s stay of the 2015
informed by the 2003 and 2008 that it is the policy of Congress that the rule but that regime depends upon the
guidance documents. In the second step, States manage the construction grant pendency of the Sixth Circuit’s order
the agencies will conduct a separate program under this chapter and and could be altered at any time by
notice and comment rulemaking that implement the permit programs under factors beyond the control of the
will consider developing a new sections 402 and 404 of the Act. 33 agencies. The Supreme Court’s
definition of ‘‘waters of the United U.S.C. 1251(b). Therefore, as part of the resolution of the question as to which
States’’ taking into consideration the two-step rulemaking, the agencies will courts have original jurisdiction over
principles that Justice Scalia outlined in be considering the relationship of the challenges to the 2015 rule could impact
the Rapanos plurality opinion. CWA objective and policies, and in the Sixth Circuit’s exercise of
In the 2015 rulemaking, the agencies particular, the meaning and importance jurisdiction and its stay. If, for example,
described their task as ‘‘interpret[ing] of section 101(b). the Supreme Court were to decide that
the scope of the ‘waters of the United The 2015 rule did acknowledge the the Sixth Circuit lacks original
States’ for the CWA in light of the goals, language contained in section 101(b) jurisdiction over challenges to the 2015
objectives, and policies of the statute, and the vital role states and tribes play rule, the Sixth Circuit case would be
the Supreme Court case law, the in the implementation of the Act and dismissed and its nationwide stay
relevant and available science, and the the effort to meet the Act’s stated would expire, leading to
agencies’ technical expertise and objective. See, e.g., 80 FR at 37059. In inconsistencies, uncertainty, and
experience.’’ 80 FR 37054, 37060 (June discussing the provision, the agencies confusion as to the regulatory regime
29, 2015). In so doing, the agencies noted that it was ‘‘[o]f particular that would be in effect pending
properly acknowledged that a regulation importance[,] [that] states and tribes substantive rulemaking under the
defining ‘‘waters of the United States’’ may be authorized by the EPA to Executive Order.
in this area is not driven by any one administer the permitting programs of As noted previously, prior to the
type or piece of information, but rather Sixth Circuit’s stay order, the District
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must be the product of the evaluation 2 This notion was at least implicitly recognized by
Court for North Dakota had
and balancing of a variety of different the Chief Justice in his concurring opinion in preliminarily enjoined the rule in 13
Rapanos: ‘‘[T]he Corps and the EPA would have
types of information. That information enjoyed plenty of room to operate in developing States (North Dakota, Alaska, Arizona,
includes scientific data as well as the some notion of an outer bound to the reach of their Arkansas, Colorado, Idaho, Missouri,
policies articulated by Congress when it authority.’’ Rapanos v. United States, 547 U.S. 715, Montana, Nebraska, Nevada, South
758 (2006) (Roberts, C.J., concurring). Ultimately,
passed the Act. For example, the developing ‘‘some notion of an outer bound’’ from
Dakota, Wyoming and New Mexico).
agencies recognized this construct in the the full range of relevant information is the task Therefore, if the Sixth Circuit’s
preamble to the 2015 Rule by explaining facing the agencies. nationwide stay were to expire, the 2015
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![Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Proposed Rules 34907
■ d. Adding the definition of suspended until further notice in which are subject to the ebb and flow of
‘‘Wetlands’’. § 122.2, the last sentence, beginning the tide;
The revision and addition read as ‘‘This exclusion applies . . .’’ in the (2) All interstate waters including
follows: definition of ‘‘Waters of the United interstate wetlands;
States.’’ This revision continues that (3) All other waters such as intrastate
§ 122.2 Definitions. lakes, rivers, streams (including
suspension.
* * * * * Wetlands means those areas that are intermittent streams), mudflats,
Waters of the United States or waters inundated or saturated by surface or sandflats, wetlands, sloughs, prairie
of the U.S. means: groundwater at a frequency and potholes, wet meadows, playa lakes, or
(a) All waters which are currently duration sufficient to support, and that natural ponds, the use, degradation or
used, were used in the past, or may be destruction of which could affect
under normal circumstances do support,
susceptible to use in interstate or foreign interstate or foreign commerce
a prevalence of vegetation typically
commerce, including all waters which including any such waters:
adapted for life in saturated soil
are subject to the ebb and flow of the (i) Which are or could be used by
conditions. Wetlands generally include
tide; interstate or foreign travelers for
(b) All interstate waters, including swamps, marshes, bogs, and similar
areas. recreational or other purposes; or
interstate ‘‘wetlands;’’ (ii) From which fish or shellfish are or
(c) All other waters such as intrastate * * * * *
could be taken and sold in interstate or
lakes, rivers, streams (including
PART 230—SECTION 404(b)(1) foreign commerce; or
intermittent streams), mudflats, (iii) Which are used or could be used
sandflats, ‘‘wetlands,’’ sloughs, prairie GUIDELINES FOR SPECIFICATION OF
DISPOSAL SITES FOR DREDGED OR for industrial purposes by industries in
potholes, wet meadows, playa lakes, or interstate commerce;
natural ponds the use, degradation, or FILL MATERIAL
(4) All impoundments of waters
destruction of which would affect or ■ 13. The authority citation for part 230 otherwise defined as waters of the
could affect interstate or foreign is revised to read as follows: United States under this definition;
commerce including any such waters: (5) Tributaries of waters identified in
(1) Which are or could be used by Authority: Secs. 404(b) and 501(a) of the
Clean Water Act of 1977 (33 U.S.C. 1344(b) paragraphs (s)(1) through (4) of this
interstate or foreign travelers for section;
and 1361(a)).
recreational or other purposes; (6) The territorial sea;
(2) From which fish or shellfish are or ■ 14. Section 230.3 is amended by: (7) Wetlands adjacent to waters (other
could be taken and sold in interstate or ■ a. Redesignating paragraph (o) as
than waters that are themselves
foreign commerce; or paragraph (s).
■ b. Revising newly redesignated
wetlands) identified in paragraphs (s)(1)
(3) Which are used or could be used
paragraph (s). through (6) of this section; waste
for industrial purposes by industries in
■ c. Redesignating paragraph (n) as
treatment systems, including treatment
interstate commerce;
(d) All impoundments of waters paragraph (r). ponds or lagoons designed to meet the
otherwise defined as waters of the ■ d. Redesignating paragraph (m) as requirements of CWA (other than
United States under this definition; paragraph (q–1). cooling ponds as defined in 40 CFR
(e) Tributaries of waters identified in ■ e. Redesignating paragraphs (h) 423.11(m) which also meet the criteria
paragraphs (a) through (d) of this through (l) as paragraphs (m) through of this definition) are not waters of the
definition; (q). United States.
(f) The territorial sea; and ■ f. Redesignating paragraphs (e) and (f) Waters of the United States do not
(g) ‘‘Wetlands’’ adjacent to waters as paragraphs (h) and (i). include prior converted cropland.
(other than waters that are themselves ■ g. Redesignating paragraph (g) as Notwithstanding the determination of
wetlands) identified in paragraphs (a) paragraph (k). an area’s status as prior converted
through (f) of this definition. ■ h. Redesignating paragraphs (b) cropland by any other federal agency,
Waste treatment systems, including through (d) as paragraphs (c) through for the purposes of the Clean Water Act,
treatment ponds or lagoons designed to (e). the final authority regarding Clean
meet the requirements of CWA (other ■ i. Adding reserved paragraphs (f), (g), Water Act jurisdiction remains with
than cooling ponds as defined in 40 CFR (j), and (l). EPA.
423.11(m) which also meet the criteria ■ j. Adding paragraphs (b) and (t). (t) The term wetlands means those
of this definition) are not waters of the The revision and additions read as areas that are inundated or saturated by
United States. This exclusion applies follows: surface or ground water at a frequency
only to manmade bodies of water which and duration sufficient to support, and
neither were originally created in waters § 230.3 Definitions. that under normal circumstances do
of the United States (such as disposal * * * * * support, a prevalence of vegetation
area in wetlands) nor resulted from the (b) The term adjacent means typically adapted for life in saturated
impoundment of waters of the United bordering, contiguous, or neighboring. soil conditions. Wetlands generally
States. [See Note 1 of this section.] Wetlands separated from other waters of include swamps, marshes, bogs and
Waters of the United States do not the United States by man-made dikes or similar areas.
include prior converted cropland. barriers, natural river berms, beach
Notwithstanding the determination of dunes, and the like are ‘‘adjacent PART 232—404 PROGRAMS
mstockstill on DSK30JT082PROD with PROPOSALS
an area’s status as prior converted wetlands.’’ DEFINITIONS; EXEMPT ACTIVITIES
cropland by any other federal agency, * * * * * NOT REQUIRING 404 PERMITS
for the purposes of the Clean Water Act, (s) The term waters of the United ■ 15. The authority citation for part 232
the final authority regarding Clean States means: is revised to read as follows:
Water Act jurisdiction remains with (1) All waters which are currently
used, or were used in the past, or may Authority: 33 U.S.C. 1344.
EPA.
Note: At 45 FR 48620, July 21, 1980, be susceptible to use in interstate or ■ 16. Section 232.2 is amended by
the Environmental Protection Agency foreign commerce, including all waters revising the definition of ‘‘Waters of the
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![Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Proposed Rules 34909
United States, including the territorial Advisory Committee (GLPAC); Docket Search: For access to the
seas; teleconference meeting. docket or to read documents or
* * * * * comments related to this notice, go to
SUMMARY: The U.S. Coast Guard is http://www.regulations.gov, insert
PART 401—GENERAL PROVISIONS issuing a new task to the Great Lakes ‘‘USCG–2017–0658’’ in the Search box,
Pilotage Advisory Committee (GLPAC). press Enter, and then click on the item
■ 22. The authority citation for part 401 The U.S. Coast Guard is asking GLPAC you wish to view.
is revised to read as follows: to help the agency identify existing
regulations, guidance, and collections of FOR FURTHER INFORMATION CONTACT: Ms.
Authority: Secs. 301, 304 (b) and (c), 306 Michelle Birchfield, Alternate
(b) and (c), 307 (b) and (c) and 316(b) of the information (that fall within the scope
of the Committee’s charter) for possible Designated Federal Officer of the Great
Federal Water Pollution Control Act, as
amended (the ‘‘Act’’), 33 U.S.C. 1251, 1311, repeal, replacement, or modification. Lakes Pilotage Advisory Committee,
1314 (b) and (c), 1316 (b) and (c), 1317 (b) This tasking is in response to the telephone (202) 372–1533, or email
and (c) and 1326(c); 86 Stat. 816 et seq.; Pub. issuance of Executive Orders 13771, michelle.r.birchfield@uscg.mil.
L. 92–500. ‘‘Reducing Regulation and Controlling SUPPLEMENTARY INFORMATION:
■ 23. Section 401.11 is amended by Regulatory Costs; 13777, ‘‘Enforcing the New Task to the Committee
revising paragraph (l) to read as follows: Regulatory Reform Agenda;’’ and 13783,
‘‘Promoting Energy Independence and The U.S. Coast Guard is issuing a new
§ 401.11 General definitions. Economic Growth.’’ The full Committee task to GLPAC to provide
* * * * * is scheduled to meet by teleconference recommendations on whether existing
(l) The term navigable waters on August 23, 2017, to discuss this regulations, guidance, and information
includes: All navigable waters of the tasking. This teleconference will be collections (that fall within the scope of
United States; tributaries of navigable open to the public. The U.S. Coast the Committee’s charter) should be
waters of the United States; interstate Guard will consider GLPAC repealed, replaced, or modified. GLPAC
waters; intrastate lakes, rivers, and recommendations as part of the process will then provide advice and
streams which are utilized by interstate of identifying regulations, guidance, and recommendations on the assigned task
travelers for recreational or other collections of information to be and submit a final recommendation
purposes; intrastate lakes, rivers, and repealed, replaced, or modified report to the U.S. Coast Guard.
streams from which fish or shellfish are pursuant to the three Executive Orders Background
taken and sold in interstate commerce; discussed above.
and intrastate lakes, rivers, and streams DATES: The full Committee is scheduled On January 30, 2017, President Trump
which are utilized for industrial to meet by teleconference on August 23, issued Executive Order 13771,
purposes by industries in interstate 2017, from 1:30 p.m. to 3 p.m. EDT. ‘‘Reducing Regulation and Controlling
commerce. Navigable waters do not Please note that this teleconference may Regulatory Costs.’’ Under that Executive
include prior converted cropland. adjourn early if the Committee has Order, for every one new regulation
Notwithstanding the determination of completed its business. issued, at least two prior regulations
an area’s status as prior converted ADDRESSES: To join the teleconference must be identified for elimination, and
cropland by any other federal agency, or to request special accommodations, the cost of planned regulations must be
for the purposes of the Clean Water Act, contact the individual listed in the FOR prudently managed and controlled
the final authority regarding Clean FURTHER INFORMATION CONTACT section through a budgeting process. On
Water Act jurisdiction remains with no later than 1 p.m. on August 16, 2017. February 24, 2017, the President issued
EPA. The number of teleconference lines is Executive Order 13777, ‘‘Enforcing the
limited and will be available on a first- Regulatory Reform Agenda.’’ That
* * * * *
[FR Doc. 2017–13997 Filed 7–26–17; 8:45 am] come, first-served basis. Executive Order directs agencies to take
Instructions: Submit comments on the specific steps to identify and alleviate
BILLING CODE 6560–50–P
task statement at any time, including unnecessary regulatory burdens placed
orally at the teleconference, but if you on the American people. On March 28,
want Committee members to review 2017, the President issued Executive
DEPARTMENT OF HOMELAND your comments before the Order 13783, ‘‘Promoting Energy
SECURITY teleconference, please submit your Independence and Economic Growth.’’
comments no later than August 16, Executive Order 13783 promotes the
Coast Guard 2017. You must include the words clean and safe development of our
‘‘Department of Homeland Security’’ Nation’s vast energy resources, while at
33 CFR Chapter 1 and the docket number for this action. the same time avoiding agency actions
Written comments may also be that unnecessarily encumber energy
46 CFR Chapters 1 and III submitted using the Federal e- production.
Rulemaking Portal at http:// When implementing the regulatory
49 CFR Chapter IV www.regulations.gov. If you encounter offsets required by Executive Order
[Docket No. USCG–2017–0658] technical difficulties with comment 13771, each agency head is directed to
submission, contact the individual prioritize, to the extent permitted by
Great Lakes Pilotage Advisory listed in the FOR FURTHER INFORMATION law, those regulations that the agency’s
mstockstill on DSK30JT082PROD with PROPOSALS
Committee—Input To Support CONTACT section of this notice. Regulatory Reform Task Force identifies
Regulatory Reform of Coast Guard Comments received will be posted as outdated, unnecessary, or ineffective
Regulations—New Task without alteration at http:// in accordance with Executive Order
www.regulations.gov, including any 13777. As part of this process to comply
AGENCY: U.S. Coast Guard, Department personal information provided. You with all three Executive Orders, the U.S.
of Homeland Security. may review Regulations.gov’s Privacy Coast Guard is reaching out through
ACTION: Announcement of new task and Security Notice at https:// multiple avenues to interested
assignment for the Great Lakes Pilotage www.regulations.gov/privacyNotice. individuals to gather their input about
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Document Created: 2017-07-27 02:07:05
Document Modified: 2017-07-27 02:07:05
| 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 | Proposed rule. | |
| Dates | Comments must be received on or before August 28, 2017. | |
| 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 | |
| FR Citation | 82 FR 34899 | |
| RIN Number | 2040-AF74 | |
| 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 | |
| CFR Associated | Environmental Protection; Administrative Practice and Procedure; Intergovernmental Relations; Navigation; Water Pollution Control and Waterways |
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