Federal Register / Vol. 76, No. 84 / Monday, May 2, 2011 / Notices 24479 

Estimated Total Annual Cost: 

$1,356,320, includes $20 in annualized 

capital or O&M costs. 

Changes in the Estimates: There is a 

decrease of 1,667 hours in the total 

estimated burden currently identified in 

the OMB Inventory of Approved ICR 

Burdens. This decrease reflects EPA’s 

updating of burden estimates. The 

decrease is due to an increase in 

computer-generated product transfer 

documents. 

Dated: April 25, 2011. 

John Moses, 

Director, Collection Strategies Division. 

[FR Doc. 2011–10425 Filed 4–29–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9300–9] 

In the Matter of the Taylor Lumber and 

Treating Superfund Site, Sheridan, 

Oregon, Amendment to Agreement and 

Covenant Not To Sue, Pacific Wood 

Preserving of Oregon 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice; request for public 

comment. 

SUMMARY: This Amendment to 

Agreement and Covenant Not to Sue 

(‘‘Amendment’’) amends the 2002 

Agreement and Covenant Not To Sue, 

Docket CERCLA–10–2002–0034 

(‘‘Original Agreement’’), entered into by 

and between the United States on behalf 

of the U.S. Environmental Protection 

Agency (‘‘EPA’’) and Pacific Wood 

Preserving of Oregon (‘‘PWPO’’). In 

accordance with the Comprehensive 

Environmental Response, 

Compensation, and Liability Act, 42 

U.S.C. 9601 et seq. (‘‘CERCLA’’), notice 

is hereby given of the proposed 

Agreement between the EPA and PWPO, 

subject to the final review and approval 

of the EPA and the U.S. Department of 

Justice. 

The 2002 Original Agreement with 

PWPO provided a covenant not to sue 

for response costs at the Taylor Lumber 

and Treating Site, which PWPO was 

acquiring, in exchange for several 

obligations related to site operation and 

a commitment not to use certain 

hazardous products, including 

pentachlorophenol, at the Site. This 

Amendment removes the restriction on 

pentachlorophenol use and extends 

PWPO’s commitment to collect and treat 

groundwater and maintain the asphalt 

cap until January 31, 2022, or for as long 

as PWPO owns or operates on the 

Property, whichever is later. This 

Amendment includes additional 

commitments including submittal of 

annual environmental audit reports; 

implementation of institutional 

controls; payment of EPA future 

oversight costs; and, a revised Statement 

of Work for future work to be performed 

by PWPO. 

DATES: Comments must be received on 

or before May 16, 2011. 

ADDRESSES: The proposed settlement is 

available for public inspection at the 

U.S. EPA Region 10 office, located at 

1200 Sixth Avenue, Seattle, Washington 

98101. A copy of the proposed 

settlement may be obtained from Sharon 

Eng, Paralegal, U.S. EPA Region 10, 

Mail Stop ORC–158, 1200 Sixth 

Avenue, Suite 900, Seattle, Washington 

98101; 206–553–0705. Comments 

should reference the Taylor Lumber and 

Treating Superfund Site in Sheridan, 

Oregon, EPA Docket No. CERCLA–10– 

2002–0034 and should be addressed to 

Jennifer Byrne, Assistant Regional 

Counsel, U.S. EPA Region 10, Mail Stop 

ORC–158, 1200 Sixth Avenue, Suite 

900, Seattle, Washington 98101. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Byrne, Office of Regional 

Counsel, Mail Stop: ORC–158, 

Environmental Protection Agency, 1200 

Sixth Avenue, Suite 900, Seattle, WA, 

98101; telephone number: 206–553– 

0050; fax number: 206–553–0163; email address: byrne.jennifer@epa.gov. 

Dated: April 25, 2011. 

Daniel D. Opalski, 

Director, Office of Environmental Cleanup. 

[FR Doc. 2011–10567 Filed 4–29–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

DEPARTMENT OF DEFENSE 

Deaprtment of the Army, Corps of 

Engineers 

[EPA–HQ–OW–2011–0409; FRL–9300–6] 

EPA and Army Corps of Engineers 

Guidance Regarding Identification of 

Waters Protected by the Clean Water 

Act 

AGENCY: Environmental Protection 

Agency (EPA); and U.S. Army Corps of 

Engineers, Department of the Army, 

Department of Defense. 

ACTION: Notice of availability and 

request for comments. 

SUMMARY: The Environmental Protection 

Agency (EPA) and the U.S. Army Corps 

of Engineers (the Corps) are 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 of Northern 

Cook County v. U.S. Army Corps of 

Engineers (SWANCC) (531 U.S. 159 

(2001)) and Rapanos v. United States 

(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 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 under 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 

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 of the 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 CWA 

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 July 1, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2011–0409 by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

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24480 Federal Register / Vol. 76, No. 84 / Monday, May 2, 2011 / Notices 

• 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, Environmental 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 http:// 

www.regulations.gov,including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI, or otherwise 

protected, through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail directly to EPA 

without going through http:// 

www.regulations.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 to 

technical difficulties and cannot contact 

you for clarification, EPA might not be 

able to consider your comment. Avoid 

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 http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. 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 http:// 

www.regulations.gov or in hard copy at 

the Water Docket, EPA Docket Center, 

EPA West, Room 3334, 1301 

Constitution Ave., NW., 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; e-mail address: 

CWAwaters@epa.gov. Mr. David Olson, 

Regulatory Community of Practice 

(CECW–CO–R), U.S. Army Corps of 

Engineers, 441 G 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 States & Carabell v. 

United States,’’ dated December 2, 2008, 

and available at http://water.epa.gov/ 

lawsregs/guidance/wetlands/ 

CWAwaters.cfm. Until that final 

guidance is issued, both the 2003 and 

2008 CWA 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 waters’’ except in compliance 

with other specified sections of the 

CWA (33 U.S.C. 1311(a) and 

1362(12)(A)). In most cases, this means 

compliance with a permit issued 

pursuant to CWA section 402 (33 U.S.C. 

1342) or section 404 (33 U.S.C. 1344). 

The CWA provides that ‘‘[t]he term 

‘navigable waters’ means the waters of 

the United States, including the 

territorial seas’’ (33 U.S.C. 1362(7)). EPA 

and the Corps have further defined the 

term ‘‘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, 117.1, 122.2, 232.2, 

300.5, part 300 App. E, 302.3 and 

401.11). 

The U.S. Supreme Court has 

addressed the scope of waters of the 

United States protected by the CWA in 

three cases, two of which are 

specifically addressed by the draft 

guidance. In SWANCC, the Court 

addressed the question of CWA 

jurisdiction over isolated ponds, and 

concluded that CWA jurisdiction could 

not be based solely on the presence of 

migratory birds. In Rapanos, the Court 

addressed CWA 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 CWA 

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 CWA 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. 

EPA and Army Corps of Engineers 

Guidance Regarding Identification of 

Waters Protected by the Clean Water Act 

Dated: April 25, 2011. 

Nancy K. Stoner, 

Acting Assistant Administrator for Water 

Environmental Protection Agency. 

Dated: April 26, 2011. 

Jo Ellen Darcy, 

Assistant Secretary of the Army (Civil Works), 

Department of the Army. 

[FR Doc. 2011–10565 Filed 4–29–11; 8:45 am] 

BILLING CODE 6560–50–P 

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