ENVIRONMENTAL PROTECTION AGENCY 

[EPA-HQ-OW-20 1 1-0409; FRL XXXX-X] 

EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by 

the Clean Water Act 

AGENCIES: Environmental Protection Agency (EPA); and U.S. Army Corps of Engineers, 

Department of the Army, Department of Defense. 

ACTION: Notice of avai labi li ty and request for comments. 

SUMMARY: The Environmental Protection Agency (EPA) and the U.S . Army Corps of 

Enginee rs (the Corps) arc publishing for public comment proposed guidance that describes how 

the agencies will identify waters protected by the Federal Water Pollution Control Act 

Amendments of 1972 (Clean Water Act or CWA or Act) and implement the Supreme Court's 

decisions on this topic (i. e., Solid Waste Agency o/Northern Cook County v. Us. Army Corps of 

Engineers (SWANCC) (53 1 u.s. 159(2001)) and Rapanosv. UniledSlales(547 U.S. 715 

(2006)) (Rapanos)). The agencies believe that under this proposed guidance the number of 

waters identified as protected by the Clean Water Act will increase compared to current practice 

and this improvement will aid in protecting the Nation's public health and aquatic resources. 

The proposed guidance is consistent with the principles established by the Supreme Court cases 

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and is supported by the agencies' scientific understanding of how waterbodies and watersheds 

function. 

In addition, the agencies believe that when the revised guidance is finalized and goes into effect, 

it will improve CWA program predictability and clarity regarding the scope of "waters of the 

United States" protected wtder the Act and that this improvement will have benefits for both the 

government and regulated parties. When finalized, this guidance would supersede previously 

issued guidance on this matter. This guidance will apply to all CW A programs, including 

section 303 water quality standards, section 311 oil spill prevention and response, section 401 

water quality certification, section 402 National Pollutant Discharge Elimination System permits, 

and section 404 permits for discharges of dredged or fill material. The agencies seek public 

comment on all aspects ofthe proposed guidance, including interpretations and scientific 

underpinnings. 

In addition to this guidance, the agencies expect to propose revisions of existing regulations to 

further clarify which waters are subject to CW A jurisdiction, consistent with the Supreme 

Court's decisions. Public comment on any such revisions will be requested at the time they are 

proposed. 

DATES: Comments must be received on or before [INSERT DATE 60 DAYS AFTER DATE 

OF PUBLICATION IN THE FEDERAL REGISTER]. 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-2011-0409 

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by one of the following methods: 

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for 

submitting comments. 

• E-mail: owdocket@epa.gov. Include EPA-HQ-OW-2011-0409 in the subject line of the 

message. 

• Mail: Send the original and three copies of your comments to: Water Docket, 

Envirorunental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue, NW., 

Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW- 2011 - 0409. 

• Hand Delivery/Courier: Deliver your comments to EPA Docket Center, EPA West, 

Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20460, Attention Docket 

ID No. EPA- HQ- OW- 2011-0409. Such deliveries are accepted only during the 

Docket's normal hours of operation, which are 8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. Special arrangements should be made for deliveries of 

boxed information. The telephone number for the Water Docket is 202-566-2426. 

Instructions: Direct your comments to Docket ID No. EPA- HQ- OW- 2011- 0409. EPA's policy 

is that all comments received will be included in the public docket without change and may be 

made available on-line at htlp://www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be Confidential Business 

Information (C8I) or other information whose disclosure is restricted by statute. Do not submit 

information that you consider to be CBI, or otherwise protected, through 

htlp://www.regulations.govore-mail. The http://www.regulations.gov Web site is an 

"anonymous access" system, which means EPA will not know your identity or contact 

infol111ation unless you provide it in the body of your comment. If you send an e-mail directly to 

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EPA without going through hltp://www.regu/alions.gov, your e-mail address will be 

automatically captured and included as part of the comment that is placed in the public docket 

and made available on the Internet. If you submit an electronic comment, EPA recommends that 

you include your name and other contact information in the body of your comment and with any 

disk or CD- ROM you submit. If EPA cannot read your comment due LO technical difficulties 

and cannot contact you for clarification, EPA might not be able to consider your comment. 

A void the use of special characters and any form of encryption, and ensure that electronic files 

are free of any defects or viruses. For additional information about EPA's public docket, visit 

the EPA Docket Center homepage at h//p://www.epa.gov/epahomeldockets.hrm. 

Docket: All documents in the docket are listed in the http://www.regu/alions.govindex. Some 

information, however, is not publicly available, e.g., CBI or other information whose disclosure 

is restricted by statute. Certain other material, such as copyrighted material, is publicly available 

only in hard copy. Publicly available docket materials are available electronically at 

hap://www.regulations.govorin hard copy at the Water Docket, EPA Docket Center, EPA West, 

Room 3334, DOl Constitution Ave., N.W., Washington, DC, The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone 

number for the Public Reading Room is 202-566-1744, and the telephone number for the Water 

Docket is 202-566- 2426. 

FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing, Office of Water (4502-T), 

Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington DC 20460; 

telephone number 202-566-1783; email address: CWAwaters[a);epa.gov. Mr. David Olson, 

Regulatory Community of Practice (CECW-CO-R), U.S. Army Corps of Engineers, 441 G 

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Street, NW, Washington, DC 20314; telephone number 202-761--4922; email address: 

david.b.olson@usace.army.mil. 

SUPPLEMENTARY INFORMATION: 

EPA and the Corps are seeking public comment on proposed joint agency guidance regarding 

identification of waters protected by the Clean Water Act. The agencies intention is that the final 

joint guidance will supersede the "Joint Memorandum" providing clarifying guidance on 

SWANCC, dated Jan. 15,2003 (68 FR 1991, 1995), and "Clean Water Act Jurisdiction 

Following the U.S. Supreme Court's Decision in Rapanos v. United Stares & Carabell v. United 

States, " dated December 2, 2008, and available at 

http://waler.epa.gov/lawsregs/guidance/wetiandsiCWAwaters.cfm. Until that final guidance is 

issued, both the 2003 and 2008 CW A jurisdiction guidance remain in effect. 

Congress enacted the Clean Water Act (CWA) "to restore and maintain the chemical, physical, 

and biological integrity of the Nation's waters" (33 U .S.c. 1251 (a)). One of the mechanisms 

adopted by Congress to achieve that purpose is a prohibition on the discharge of any pollutants 

into "navigable wate rs" except in compliance with other specified sections of the CW A (33 

U.S .c. 131 I (a) and I 362(l2)(A)). In most cases, this means compliance with a pennit issued 

pursuant to CWA section 402 (33 U.S.C. 1342) or seclion 404 (33 U.S.C. 1344). The CWA 

provides that "[t]he tenn ' navigable waters' means the waters of the United States, including the 

territorial seas" (33 U.S.c. 1362(7)). EPA an~ the Corps have further defined the tenn "waters 

of the United States" in regulations (40 CFR 230.3(s) and 33 CFR 328.3(a); substantively similar 

regulatory definitions appear at 40 CFR 110.1, 112.2, 116.3, 11 7.1 , 122.2, 232.2, 300.5, part 300 

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App. E, 302.3 and 40l.l1). 

The U.S. Supreme Court has addressed the scope ofwalers of the United States protected by the 

CW A in three cases, two of which are specifically addressed by the draft guidance. In 

SWANCC, the Court addressed the question of CW A jurisdiction over isolated ponds, and 

concluded that CW A jurisdiction could not be based solely on the presence of migratory birds. 

In Rapanos, the Court addressed CW A protections for wetlands adjacent to tributaries, and 

issued five opinions with no single opinion commanding a majority of the Court. Neither 

SWANCC nor the opinions in Rapanos invalidated any of the regulatory provisions defining 

"waters of the United States." The Court also addressed the question of CW A jurisdiction in an 

earlier case, Riverside Bayview Homes. While not specifically addressed in the current 

guidance, this case informed the Court's decisions in the latter two cases. 

The agencies believe it is advisable to replace existing guidance documents interpreting 

SWANCC and Rapanos in order to implement the CW A in a manner that is consistent with those 

opinions, reflects the best available science, and recognizes recent field implementation 

experience. By reflecting such developments, the proposed guidance made available today for 

public comment is expected, once it is finalized after considering all comments received, to 

provide clearer direction to field staff in implementing the Court decisions and reduce 

uncertainty in the regulated community. 

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EPA and Anny Corps of Engineers Guidance Regarding Identification of Waters Protected by 

the Clean Water Act 

Dated: tAPR 2 5 2011 APR 262011 

Nancy K. Stoner 

Acting Assistant Administrator for Water 

Environmental Protection Agency 

1:J~~rh-f7 J Ellen Darcy 

. 

Assistant Secretary of the Army 

(Civil Works) 

Department of the Army 

l

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