ENV IR ONMEN TAL PROTECTION AGENCY [ EPA - HQ-OW-20 1 1- 0409; FRL XXXX-X ]
EP A and Army Corps of En gi neers Guidance Regarding Ide ntification of Waters Protected 

### by the C le an Water Ac t AGENCIES: Environmental Protection Agency (EPA); and U.S. Arm y Corps of Engineers , Dep artme nt of the Arm y, Department of Defense. ACT ION: Notice of avai labi li ty and request for co mment s. SUMMARY: The Environmental Protection Agency (EPA) an d the U.S . Arm y Co rp s of Enginee rs (t he Cor p s) arc pub li shi ng fo r pub li c c o mm ent proposed guid ance that describes how th e age ncie s will id entify waters protected by th e Federal Water P o llutio n Con tro l Act A men dm ents o f 1972 (Clean Water Ac t or CWA or Act) and implement th e S upreme Co urt 's decisions on thi s topic 

### (i. e., Solid Waste Agency o/Northern Cook County v. 

### Us. Army Corps of Engineers (S WANCC ) (53 1 

## u .s. 1 59(2001)) and 

### Rapanosv. Un il edSlales(5 47 U.S. 715 (2006)) (Rapanos)). Th e agencies believe th a t under thi s proposed guidanc e the number o f wate rs identified as p r otected by th e Clean Wa t e r Ac t w ill in c rease co mp ared t o c urrent practice a nd this improve ment w ill aid in protecting the Nati o n 's pub li c health and aqu at i c resources. The pro p osed g uid ance is cons i ste nt with the principles establi she d b y the S upre me Court cases

Page I of7and is supported by the agencies' scientific understanding of how waterbodies and watersheds function. In addition, the agencies believe that when the revised guidance is finali ze d and goes into effect, it will improve CWA program predictability and clarity regarding the scope of "waters of the United States" protec ted 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 CWA program s, including section 303 water quality s tandard s, section 311 oil spill prevention and response, section 401 water quality certification, section 402 National Pollutant Di s charge Elimination System permits, and section 404 permits for discharges of dredged or fill material. The agencies seek public comment on all aspects ofthe propo sed guidance, including interpretations and scientific underpinnings. In addition to thi s 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 Page 2 of7by 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 yo ur 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 deliverie s 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 telephon e 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 i s 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 pro vided, unless th e comment includes information claimed to be Co nfidential Business Information (C8I ) or other information whose disclosure is restricted by statute. Do not s ubmit 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 mean s EPA will not know your identity or contact infol111ation unl ess you provide it in the body of your comment. If you send an e-mail directly to Page 3 of7EPA 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 th e Internet. If yo u submit an electronic comment , E PA recommend s that yo u include your name and other contact information in the body of yo ur comment and with any disk or CD - ROM yo u s ubmit. If EPA cannot read your comment due LO t echnical difficultie s and cannot contact you for clarification, EPA might not be able to consider your comm ent. Avoid th e use of special characters and any form of encryption, and ensure that elec tronic file s are free of any d e fect s or viruses. For additional information about EPA 's public dock et , v i s it the EPA Docket Center homepage at 

### h//p :// www.epa.gov /

epahomeld ockets.hrm. Docket: All documents in the docke t are lis t ed in the 

### http :// www.regu/alions.govindex. Some information , however , is not publicly available, 

### e. g., CB I or other information whose di sclosure is restric ted by st atute . Certain other material, such as cop y righted material , i s publicly available only in h ard copy. Publicly available docket materials are available electronically at 

### hap: //

www . regulations.govorin hard copy at th e Water Dock et, EPA Docket Center, EPA West, Room 333 4 , 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 Frida y, excluding le ga l holidays. The telephone number for the Public Reading Room i s 202-566-1744, and the tel ep ho ne number for th e Water Docket is 202-566 - 2426. FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing , Office of Water (4502-T) , Environmental Protec tion Agency , 1200 Penns ylvania Ave., NW., Washington DC 20460; telephone number 202-566-1783; email address: CWAwaters [a); epa.gov. Mr. David Olson , Reg ulatory Community of Practice (CECW-CO-R), U .S. Army Corps of Engineers , 441 G

Page 4 of7Street , NW, Washington, DC 20314; telephone number 202-761--4922; e mail address: david.b . olson@usace.army.mil. SUPPLEMENTARY INFORMATION: EPA and th e Corps are seeking public comment o n proposed joint agency guidan ce regard in g ide ntifi cat io n of waters protected by the Clean Water Ac t. Th e agencies intention is that th e fin a l joint guidance will supersede th e " J oint Memoran dum " providing clarifying guidance on SWANCC, dated Jan . 1 5,2003 (68 FR 1991, 1 995), and "C lean Water Act Jurisdiction Following the U.S. Supreme Court's Decis ion in Rapanos v. United Stare s & Carabell v. United States, " dated December 2 , 2008 , and availabl e at http: //wa ler.epa.gov /lawsregs /gu idance/wetiandsiCWAwaters.cfm. Until that fina l guidan ce is issued, both the 2003 and 2008 CWA jurisdiction guidance rema in in e f fec t. Co ngres s enacted th e C le an Water Ac t (CWA) "to re s tore and maintain the chemica l, phys ic a l, and biological integrity of the Nation ' s wate rs" (33 U .S.c. 1251 (a)). O ne of the mechanisms adopted by Co ng ress to achieve that purpo s e is a prohibition on th e di s charge of any po llutant s into " navigab le wate rs " except in co mpliance w ith other spec ifi ed sec tion s o f the CWA ( 33 U.S .c. 131 I (a) and I 362(l2)(A)). In mo st cases, thi s means compliance w ith a penn it iss ued pursuant to CWA section 402 ( 33 U.S. C. 13 4 2) o r sec li on 404 (33 U.S.C. 1 344). Th e CWA provides th at " [t]h e tenn ' navi gable waters' mean s the waters of the Uni ted States, including the territorial seas" (33 U.S.c. 1362(7)). EPA**an~** th e Co rps have further defi ned th e tenn " water s of the Unite d States" in regulations (40 CFR 230.3(s) and 33 CFR 328.3(a); s ub s tantively simi lar regulatory defi niti ons appear at 40 CFR 110 .1, 112. 2, 116. 3 , 11 7 .1 , 122.2, 232.2, 300.5, part 300
Page 5 of7

### App. E , 302.3 and 40l.l1). Th e 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 specificall y addressed by the draft guidance. In SWANCC, th e Court addressed the question of CWA jurisdiction over isolated ponds, and concluded that CWA jurisdic ti on could not be based so lel y on the presence of migratory birds. In Rapanos, the Court addressed CWA protections for wetlands adjacent to tributaries, and issued five op ini ons with no single opin i on commanding a majority of the Court. Neith er SWANCC nor the opinions in Rapanos invalidated any of the regulatory provis i ons defining "waters of the United States. " The Court also addressed the questi on of CWA jurisdiction in an earlier case , Riverside Bayview Homes. While not specifica ll y addressed in the current gu id ance, this case informed the Court's decisions in the latter two cases. The agencies believe it is advisab le to replace existing guidance documents interpreting SWANCC and Rapanos in order to implement the CWA in a manner that is consistent w ith those opinions, reflects th e best available science, and recognizes recent field implementation experience . By reflecting such developments , the proposed guidance made avai lab le today for public comment is expected, once 

### it is finalized after considering a ll comments received, to provide clearer direction to fie ld staff in implementing the Court decisions and reduce uncertainty in the regulated commun ity.

Page 6 of7EPA and Anny Corps of Eng ine ers Guidance Regarding Id e ntification o f Waters Pro tected by th e C lean Water Act

Dated: 

# tAPR 2 5 2011 

# APR 262011

Nancy K . Stoner Acting Ass is tant Administrator for Water En v ironmental Protect io n Agency

# 1:J~~rh-f7 J E ll e n Darcy



## . Ass i s tant Secretary of th e Army

(Civil Works) Departm e nt of th e Army 

## l

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