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DOD/COE

RIN: 0710-AA50

Publication ID: Fall 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 EPA and the Department of the Army on January 15, 2003. This action solicited public input on aspects of Clean Water Act regulatory jurisdiction that should be addressed in joint rulemaking by EPA and the Department of the Army to 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. Approximately 150,000 comments were received in response to the ANPRM. The Corps and EPA are currently sorting comments by nature and substance to facilitate final review and consideration. The assessment of the comments will be factored into the decision on the need for, and scope of, further rulemaking. Among others things, a rulemaking process 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: Department of Defense(DOD)	Priority: Substantive, Nonsignificant
RIN Status: Previously 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 40 CFR 112 40 CFR 116 40 CFR 117 40 CFR 122 40 CFR 230 40 CFR 232 40 CFR 257 40 CFR 300 40 CFR 401
Legal Authority: 33 USC 1361 33 USC 1362

Legal Deadline: None

Timetable:

Action	Date	FR Cite
ANPRM	01/15/2003	68 FR 1991
ANPRM Comment Period End	04/16/2003	68 FR 9613
NPRM	05/00/2004
NPRM Comment Period End	07/00/2004

Regulatory Flexibility Analysis Required: No	Government Levels Affected: Federal, Local, State, Tribal
Small Entities Affected: Businesses, Governmental Jurisdictions, Organizations	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