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DOD/COE RIN: 0710-AA50 Publication ID: Spring 2003 
Title: ●Clean Water Act Regulatory Definition of "Waters of the United States" 
Abstract: An Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of "Waters of the United States" was published jointly by USEPA and the Department of the Army on January 15, 2003, to solicit public input pertaining to "isolated, intrastate, non-navigable waters and wetlands" and their jurisdictional status under the Clean Water Act (CWA). The existing regulations contain language asserting jurisdiction over such waters, however, on January 9, 2001, for the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) case, the U.S. Supreme Court held that the scope of "waters of the United States" protected under the CWA did not extend to these waters and wetlands based solely on the use or potential use by migratory birds. While SWANCC did not actually invalidate existing regulations under the CWA, the decision does establish limitations on their use. Rulemaking is necessary to address the Court's decision, clarify the jurisdictional status of waters and wetlands, improve the definitions of tributaries and adjacency, address the jurisdictional status of man-made conveyances, and provide more specificity regarding 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 the regulatory definition of "waters of the United States" if they are regulated under or help administer CWA programs affecting such waters; e.g., sections 402, 404, and 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: Department of Defense(DOD)  Priority: Substantive, Nonsignificant 
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
CFR Citation: 33 CFR 328    40 CFR 110, 112, 116, 117, 122, 230, 232    40 CFR 257, 300, 401     (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
Timetable:
Action Date FR Cite
ANPRM  01/15/2003  68 FR 1991   
ANPRM Comment Period End  03/03/2003    
NPRM  10/00/2003    
NPRM Comment Period End  12/00/2003    
Final Action  06/00/2004    
Final Action Effective  09/00/2004    
Regulatory Flexibility Analysis Required: No  Government Levels Affected: Undetermined 
Federalism: No 
Included in the Regulatory Plan: No 
Agency Contact:
Thaddeus J. Rugiel
Regulatory Program Manager
Department of Defense
U.S. Army Corps of Engineers
CECW-OR (3G65), 441 G Street NW,
Washington, DC 20314-1000
Phone:202 761-4595
Fax:202 761-4150
Email: thaddeus.j.rugiel@hq02.usace.army.mil