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EPA/WATER

RIN: 2040-AB74

Publication ID: Fall 2002

Title: Clean Water Act Definition of Waters of the United States
Abstract: This action involves joint rulemaking by EPA and the Department of the Army to amend the regulatory definition of waters of the United States. The action would clarify the jurisdictional status under the Clean Water Act (CWA) of "isolated intrastate non-navigable waters and wetlands." The existing regulations contain language asserting jurisdiction over isolated intrastate waters, but that regulatory provision has been the subject of a January 9, 2001, U.S. Supreme Court opinion, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). In SWANCC, the Court held that the scope of "waters of the United States" protected under the Clean Water Act did not extend to isolated intrastate non-navigable waters based solely on presence of migratory birds. While SWANCC did not actually invalidate regulations under the CWA, the decision does establish limitations on their use. Revision of the regulatory language is necessary to address the Court's decision, improve regulatory clarity, and provide more specificity regarding CWA jurisdiction. Among others things, the rulemaking would clarify CWA jurisdiction for entities (e.g., industrial, commercial, governmental) that discharge pollutants, including dredged or fill material, to isolated intrastate surface waters or wetlands. Small entities or State/local/tribal governments might be affected by a change in regulatory definition of "waters of the United States" if they either are regulated under or help administer CWA programs affecting such waters, e.g. sections 402, 404, 311. Significant impacts on such entities or governments are not anticipated, as the proposed regulatory revisions would be consistent with the Supreme Court ruling.
Agency: Environmental Protection Agency(EPA)	Priority: Other Significant
RIN Status: Previously published in the Unified Agenda	Agenda Stage of Rulemaking: Prerule Stage
Major: No	Unfunded Mandates: No
CFR Citation: 33 CFR 328.3(a) 40 CFR 110.1 40 CFR 112.2 40 CFR 116.3 40 CFR 117.1 40 CFR 122.2 40 CFR 230.3(s) 40 CFR 232.2 40 CFR 257.3-1(d) 40 CFR Part 300, Appendix E 40 CFR 401.11(I) (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 33 USC 1361 CWA sec 501 33 USC 1362 CWA sec 502

Legal Deadline: None

Statement of Need: The need for this rule stems from the Supreme Court's 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), which has raised substantive questions regarding the extent to which isolated intrastate non-navigable waters are included within the geographic scope of jurisdiction under the Clean Water Act. Rulemaking will help clarify issues to ensure that Clean Water Act protections are in place for the appropriate set of wetlands and other waters of the United States.

Summary of the Legal Basis: Although the Supreme Court's decision in SWANCC did not invalidate regulations under the CWA, it raised questions that can be most effectively answered via rulemaking on the various regulations concerning CWA jurisdiction.

Alternatives: The Agency will seek public input on alternatives via an advance notice of proposed rulemaking prior to proposing a rulemaking.

Anticipated Costs and Benefits: Cost/benefit information will be developed/solicited as part of the ANPRM and proposal process. However, significant changes in the magnitude or distribution of costs and benefits are not anticipated, as the rule is primarily focused on how Clean Water Act jurisdiction for relevant programs is interpreted in light of the SWANCC Supreme Court decision.

Risks: Risk information will be solicited as part of the ANPRM and proposal process. However, significant changes in the magnitude or distribution of risk are not anticipated as the rule is primarily focused on how Clean Water Act jurisdiction for relevant programs is interpreted in light of the SWANCC Supreme Court decision.

Timetable:

Action	Date	FR Cite
ANPRM	11/00/2002
NPRM	06/00/2003
Final Action	02/00/2004

Additional Information: SAN No. 2804
Regulatory Flexibility Analysis Required: No	Government Levels Affected: Federal, Local, State, Tribal
Small Entities Affected: Businesses, Governmental Jurisdictions	Federalism: No
Included in the Regulatory Plan: Yes
Agency Contact: Donna Downing Environmental Protection Agency Water 1200 Pennsylvania Avenue NW, Mail Code 4502T, Washington, DC 20460 Phone:202 566-2428 Email: cwawotus@epa.gov John Lishman Environmental Protection Agency Water 4504T, Washington, DC 20460 Phone:202 566-1364 Email: Lishman.John@epamail.epa.gov