Law

 

Law
Appended below is a hypothetical proposed rule. Draft comments on the proposed rule. Take a position based on your assigned role in the class: if you

are in an “Environmental” role, file comments on behalf of an environmental organization; if you are in a “Government” role (including judges and

legislators), file internal comments on the proposed rulemaking as if you were a staff attorney advising the EPA Office of Water Permitting on the

advisability of adopting the proposed rule as a final rule and the risk it will be overturned; if you are in an “Industry” role, file comments on

behalf of agricultural, industrial, or real estate interests that would like to minimize the scope of regulatory requirements under the Clean Water

Act. State agency officials and congressional representatives may decide what their interest is and file comments either in favor of or against the

proposed rule.
Comments may not exceed 2200 words, including headings, introductions, footnotes and all other materials. Do not feel that you must use all 2,200

words. The comments should be typewritten, double-spaced pages, with 12-point type and one inch margins. Footnotes, if any, may be in 10 point type.

Paginate the paper. The comments must be submitted through BLACKBOARD by the September 18 due date NO LATER THAN 8:00 PM. In addition, you must bring

to class on September 19 two copies of the comments, preferably double-sided. One copy should be three-hole punched if possible.
If you use the “word count” function in your word-processing program, be aware that it does not include the footnotes in its compilation unless you

specifically direct it to do so.
Citations must follow bluebook form for memos and briefs. The comments will be graded on the basis of: sophistication and persuasiveness of analysis

and argument; depth of research; writing style; and faithfulness to bluebook citation form. Points will be deducted for not following directions.
Comments must be submitted through the Blackboard site for the course. This assignment is NOT being graded anonymously; please be sure to sign include

your name and your classroom role on your papers.
Late papers will not be accepted short of a death in the family or comparable reason
The grade for this paper will account for 25% of the grade for the course. You may seek research guidance from the librarians. Be certain to give

proper attribution for any text that you quote in your paper – any text from any source in your paper other than your own writing must be indicated by

quotation marks or block quotation, and must give a proper citation to its source. I will report all instances of suspected plagiarism to the Honor

Board.
Last thing will be in this paper “Industry” Lawyer role, file comments on behalf of agricultural, industrial, or real estate interests that would like

to minimize the scope of regulatory requirements under the Clean Water Act.
please see notes if you want to get some answers

INSTRUCTIONS
Appended below is a hypothetical proposed rule. Draft comments on the proposed rule. Take a position based on your assigned role in the class: if you

are in an “Environmental” role, file comments on behalf of an environmental organization; if you are in a “Government” role (including judges and

legislators), file internal comments on the proposed rulemaking as if you were a staff attorney advising the EPA Office of Water Permitting on the

advisability of adopting the proposed rule as a final rule and the risk it will be overturned; if you are in an “Industry” role, file comments on

behalf of agricultural, industrial, or real estate interests that would like to minimize the scope of regulatory requirements under the Clean Water

Act. State agency officials and congressional representatives may decide what their interest is and file comments either in favor of or against the

proposed rule.
Comments may not exceed 2200 words, including headings, introductions, footnotes and all other materials. Do not feel that you must use all 2,200

words. The comments should be typewritten, double-spaced pages, with 12-point type and one inch margins. Footnotes, if any, may be in 10 point type.

Paginate the paper. The comments must be submitted through BLACKBOARD. In addition, you must bring to class on September 19 two copies of the

comments, preferably double-sided. One copy should be three-hole punched if possible.
If you use the “word count” function in your word-processing program, be aware that it does not include the footnotes in its compilation unless you

specifically direct it to do so.
Citations must follow bluebook form for memos and briefs. The comments will be graded on the basis of: sophistication and persuasiveness of analysis

and argument; depth of research; writing style; and faithfulness to bluebook citation form. Points will be deducted for not following directions.
Comments must be submitted through the Blackboard site for the course. This assignment is NOT being graded anonymously; please be sure to sign include

your name and your classroom role on your papers.
Late papers will not be accepted short of a death in the family or comparable reason
The grade for this paper will account for 25% of the grade for the course. You may not consult or collaborate with other students or anyone else on

this assignment. It must be your own work, and is subject to the Honor System. You may seek research guidance from the librarians. Be certain to

give proper attribution for any text that you quote in your paper – any text from any source in your paper other than your own writing must be

indicated by quotation marks or block quotation, and must give a proper citation to its source. I will report all instances of suspected plagiarism to

the Honor Board.
IMPORTANT NOTE: For the purpose of this exercise, you should assume that the EPA proposed rule (the “Step One Rule) that appears at 82 Fed. Reg.

34,899 (July 27, 2017) has been issued as a final rule, without any revisions. You may cite the assumed final rule as if it appeared at 99 Fed. Reg.

99999 (Aug. 31, 2017) and you should not raise any issues concerning adequacy of notice and comment procedures for the “Step One” rule

AGENCY:
Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency (EPA).
ACTION:
Proposed rule.
SUMMARY:
The Environmental Protection Agency and the Department of the Army (“the agencies”) are publishing this proposed rule to initiate the second step in a

comprehensive, two-step process intended to review and revise the definition of “waters of the United States” consistent with the Executive Order

signed on February 28, 2017, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States’ Rule.” This

first step was to rescind the definition of “waters of the United States” in the Code of Federal Regulations and to re-codify the pre-existing

definition of “waters of the United States.” In this second step, the agencies propose a revised definition on of “waters of the United States” to

bring the regulatory definition into compliance with the Supreme Court decision in Rapanos v. United States.
.
SUPPLEMENTARY INFORMATION:
The regulatory definition of “waters of the United States” in this proposed rule conforms the regulatory definition to the interpretation of the term

“waters of the United States” espoused by the United States Supreme Court. The agencies will administer the regulations consistent with Supreme Court

decisions.
State, tribal, and local governments have well-defined and longstanding relationships with the federal government in implementing CWA programs and

these relationships are not altered by the proposed rule. This proposed rule will not establish any new regulatory requirements.
I. Executive Summary
A. What This Proposed Rule Does
In this proposed rule, the agencies define the scope of “waters of the United States” that are protected under the Clean Water Act (CWA). In 2015, the

agencies published the “Clean Water Rule: Definition of `Waters of the United States’” (80 FR 37054, June 29, 2015), and on October 9, 2015, the U.S.

Court of Appeals for the Sixth Circuit stayed the 2015 Rule nationwide pending further action of the court. The agencies subsequently proposed and

adopted an interim rule recodifying the regulatory definition of “waters of the United States” that was in effect prior to the 2015 “Clean Water Rule.”

In this rulemaking, the agencies propose to amend the prior definition of “waters of the United States” to eliminate ambiguities existing in the prior

definition, and to provide clarity, consistent with Supreme Court decisions interpreting the Clean Water Act.
B. History and the Purpose of This Rulemaking
Congress enacted the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, 86 Stat. 816, as amended, Public Law 95-217, 91 Stat.

1566, 33 U.S.C. 1251 et seq. (“Clean Water Act” or “CWA” or “Act”) “to restore and maintain the chemical, physical and biological integrity of the

Nation’s waters.” Section 101(a). A primary tool in achieving that purpose is a prohibition on the discharge of any pollutants, including dredged or

fill material, to “navigable waters” except in accordance with the Act. Section 301(a). The CWA provides that “[t]he term `navigable waters’ means the

waters of the United States, including the territorial seas.” Section 502(7).
The CWA also provides that States retain their traditional role in preventing, reducing and eliminating pollution. The Act states that “[i]t is the

policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate

pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources . . .” Section 101(b).

States and Tribes voluntarily may assume responsibility for permit programs governing discharges of pollution under section 402 for any jurisdictional

water bodies (section 402(b)), or of dredged or fill material discharges under section 404 (section 404(g)), with agency approval. (Section 404(g)

provides that states may not assume permitting authority over certain specified waters and their adjacent wetlands.) States are also free to establish

their own programs under state law to manage and protect waters and wetlands independent of the federal CWA. The statute’s introductory purpose section

thus commands the Environmental Protection Agency (EPA) to pursue two policy goals simultaneously: (a) To restore and maintain the nation’s waters; and

(b) to preserve the States’ primary responsibility and right to prevent, reduce, and eliminate pollution.
The regulations defining the scope of federal CWA jurisdiction currently in effect were established in large part in 1977 (42 FR 37122, July 19, 1977).

While EPA administers most provisions in the CWA, the U.S. Army Corps of Engineers (Corps) administers the permitting program under section 404. During

the 1980s, both of these agencies adopted substantially similar definitions (51 FR 41206, Nov. 13, 1986, amending 33 CFR 328.3; 53 FR 20764, June 6,

1988, amending 40 CFR 232.2).
Federal courts have reviewed the definition of “waters of the United States” and its application to a variety of factual circumstances. Three Supreme

Court decisions, in particular, provide critical context and guidance in determining the appropriate scope of “waters of the United States.”
In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (Riverside), the Court, in a unanimous opinion, deferred to the Corps’ ecological

judgment that adjacent wetlands are “inseparably bound up” with the waters to which they are adjacent, and upheld the inclusion of adjacent wetlands in

the regulatory definition of “waters of the United States.” Id. at 134.
In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), the Supreme Court held that the use of

“isolated” non-navigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of federal regulatory authority

under the CWA. The SWANCC decision created uncertainty with regard to the jurisdiction of other isolated non-navigable waters and wetlands. In January

2003, EPA and the Corps issued joint guidance interpreting the Supreme Court decision in SWANCC (“the 2003 Guidance”). The guidance indicated that

SWANCC focused on isolated, intrastate, non-navigable waters, and called for field staff to coordinate with their respective Corps or EPA Headquarters

on jurisdictional determinations which asserted jurisdiction for waters under 33 CFR 328.3(a)(3)(i) through (iii). Waters that were jurisdictional

pursuant to 33 CFR 328.3(a)(3) could no longer be determined jurisdictional based solely on their use by migratory birds.
Five years after the SWANCC decision, in Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos), a four-Justice plurality opinion in Rapanos, authored

by Justice Scalia, interpreted the term “waters of the United States” as covering “relatively permanent, standing or continuously flowing bodies of

water . . . ,” id. at 739, that are connected to traditional navigable waters, id. at 742, as well as wetlands with a “continuous surface connection .

. .” to such water bodies, id. (Scalia, J., plurality opinion). The Rapanos plurality noted that its reference to “relatively permanent” waters did

“not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,” or “seasonal rivers, which

contain Start Printed Page 34901continuous flow during some months of the year but no flow during dry months . . .” Id. at 732 n.5 (emphasis in

original). Justice Kennedy concurred with the plurality judgment, but concluded that the appropriate test for the scope of jurisdictional waters is

whether a water or wetland possesses a “ `significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” Id. at

759. The four dissenting Justices in Rapanos, who would have affirmed the court of appeals’ application of the agencies’ regulations, also concluded

that the term “waters of the United States” encompasses, inter alia, all tributaries and wetlands that satisfy “either the plurality’s [standard] or

Justice Kennedy’s.” Id. at 810 & n.14 (Stevens, J., dissenting).
After the Rapanos decision, the agencies issued joint guidance in 2007 to address the waters at issue in that decision but did not change the codified

definition. The guidance indicated that “waters of the United States” included traditional navigable waters and their adjacent wetlands, relatively

permanent waters and wetlands that abut them, and waters with a significant nexus to a traditional navigable water. The guidance did not address waters

not at issue in Rapanos, such as interstate waters and the territorial seas. The guidance was reissued in 2008 with minor changes (hereinafter, the

“2008 guidance”).
After issuance of the 2008 guidance, Members of Congress, developers, farmers, state and local governments, environmental organizations, energy

companies and others asked the agencies to replace the guidance with a regulation that would provide clarity and certainty on the scope of the waters

protected by the CWA.
Following public notice and comment on a proposed rule, the agencies published a final rule defining the scope of “waters of the United States” on June

29, 2015 (80 FR 37054). Thirty-one States and a number of other parties sought judicial review in multiple actions in Federal district courts and

Circuit Courts of Appeal, raising concerns about the scope and legal authority of the 2015 rule. One district court issued an order granting a motion

for preliminary injunction on the rule’s effective date, finding that the thirteen State challengers were likely to succeed on their claims, including

that the rule violated the congressional grant of authority to the agencies under the CWA and that it appeared likely the EPA failed to comply with

Administrative Procedure Act (APA) requirements in promulgating the rule. State of North Dakota et al. v. US EPA, No. 15-00059, slip op. at 1-2 (D.N.D.

Aug. 27, 2015, as clarified by order issued on September 4, 2015). Several weeks later, the Sixth Circuit stayed the 2015 rule nationwide to restore

the “pre-Rule regime, pending judicial review.” In re U.S. Dep’t. of Def. and U.S. Envtl. Protection Agency Final Rule: Clean Water Rule, No. 15-3751

(lead), slip op. at 6. The Sixth Circuit found that the petitioners had demonstrated a substantial possibility of success on the merits, including with

regard to claims that certain provisions of the rule were at odds with the Rapanos decision and that the distance limitations in the rule were not

substantiated by scientific support. Pursuant to the court’s order, the agencies have implemented the statute pursuant to the regulatory regime that

preceded the 2015 rule. On January 13, 2017, the U.S. Supreme Court granted certiorari on the question of whether the court of appeals has original

jurisdiction to review challenges to the 2015 rule. The Sixth Circuit granted petitioners’ motion to hold in abeyance the briefing schedule in the

litigation challenging the 2015 rule pending a Supreme Court decision on the question of the court of appeals’ jurisdiction.
On February 28, 2017, the President of the United States issued an Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth

by Reviewing the `Waters of the United States’ Rule.” Section 1 of the Order states, “[i]t is in the national interest to ensure that the Nation’s

navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due

regard for the roles of the Congress and the States under the Constitution.” It directs the EPA and the Army to review the 2015 rule for consistency

with the policy outlined in section 1, and to issue a proposed rule rescinding or revising the 2015 rule as appropriate and consistent with law.

Section 2. The Executive Order also directs the agencies to consider interpreting the term “navigable waters” in a manner consistent with Justice

Scalia’s plurality opinion in Rapanos. Section 3.
The agencies have the authority to revise the regulatory definition of “waters of the United States,” consistent with the guidance in the Executive

Order, so long as the revised definition is authorized under the law and based on a reasoned explanation. FCC v. Fox Television Stations, Inc., 556

U.S. 502, 515 (2009) (“Fox”). Importantly, such a revised decision need not be based upon a change of facts or circumstances. A revised rulemaking

based “on a re-evaluation of which policy would be better in light of the facts” is “well within an agency’s discretion,” and “[a] change in

administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency’s reappraisal” of its

regulations and programs. Nat’l Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1038 & 1043 (D.C. Cir. 2012) (citing Fox, 556 U.S. at 514-15 (Rehnquist,

J., concurring in part and dissenting in part)).
The Executive Order states that it is in the national interest to protect the nation’s waters from pollution as well as to allow for economic growth,

ensuring regulatory clarity, and providing due deference to States, as well as Congress. Executive Order section 1. These various priorities reflect,

in part the CWA itself, which includes both the objective to “restore and maintain” the integrity of the nation’s waters, as well as the policy to

“recognize, preserve, and protect the primary responsibilities and right of States to prevent, reduce, and eliminate pollution . . .” CWA sections 101

(a), 101(b). Re-evaluating the best means of balancing these statutory priorities, as called for in the Executive Order, is well within the scope of

authority that Congress has delegated to the agencies under the CWA.
In an earlier 2017 rulemaking (the “step one rule”), the agencies adopted a rule rescinding the 2015 “Clean Water Rule” and restoring the pre-existing

regulatory definition of “waters of the United States.”
This rulemaking is the second step in the two-step response to the Executive Order, intended to ensure certainty as to the scope of CWA jurisdiction

consistent with the interpretations of the Supreme Court.
C. This Proposed Rule
In this proposed rule, the agencies would adopt a definition of waters of the United States that turns on relative permanence of the surface water

connection between tributaries and waters that are navigable in fact. The proposal retains exclusions from the definition of “waters of the United

States” for prior converted cropland and waste treatment systems, both of which existed before the 2015 regulations were issued. Nothing in this

proposed rule restricts the ability of States to protect waters within their boundaries by defining the scope of waters regulated under State law more

broadly than the federal law definition.
D. Rationale for This Rulemaking
This rulemaking action is consistent with the February 28, 2017, Executive Order and the Clean Water Act.
In the 2015 rulemaking, the agencies described their task as “interpret[ing] the scope of the `waters of the United States’ for the CWA in light of the

goals, objectives, and policies of the statute, the Supreme Court case law, the relevant and available science, and the agencies’ technical expertise

and experience.” 80 FR 37054, 37060 (June 29, 2015). In so doing, the agencies properly acknowledged that a regulation defining “waters of the United

States” in this area is not driven by any one type or piece of information, but rather must be the product of the evaluation and balancing of a variety

of different types of information. That information includes scientific data as well as the policies articulated by Congress when it passed the Act.

For example, the agencies recognized this construct in the preamble to the 2015 Rule by explaining that what constitutes a “significant nexus” to

navigable waters “is not a purely scientific determination” and that “science does not provide bright line boundaries with respect to where `water

ends’ for purposes of the CWA.” 80 FR at 37060.
The objectives, goals, and policies of the statute are detailed in sections 101(a)-(g) of the statute, and guide the agencies’ interpretation and

application of the Clean Water Act. Section 101(a) of the Act states that the “objective of this chapter is to restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters,” and identifies several goals and national policies Congress believed would help the Act

achieve that objective. 33 U.S.C. 1251(a). When referring to the Act’s objective, the 2015 rule referred specifically to Section 101(a). 80 FR at

37056.
In addition to the objective of the Act and the goals and policies identified to help achieve that objective in section 101(a), in section 101(b)

Congress articulated that it is “the policy of the Congress” to recognize, preserve, and protect the primary responsibilities and rights of States to

prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water

resources, and to consult with the Administrator in the exercise of his or her authority. Section 101(b) also states that it is the policy of Congress

that the States manage the construction grant program under this chapter and implement the permit programs under sections 402 and 404 of the Act. 33

U.S.C. 1251(b).
II. General Information
A. How can I get copies of this document and related information?
1. Docket. An official public docket for this action has been established under Docket Id. No. EPA-HQ-OW-2017-0203. The official public docket consists

of the documents specifically referenced in this action, and other information related to this action. The official public docket is the collection of

materials that is available for public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20004. This Docket

Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The OW Docket telephone number is 202-566-2426. A

reasonable fee will be charged for copies.
2. Electronic Access. You may access this Federal Register document electronically under the Federal Register listings at http://www.regulations.gov.

An electronic version of the public docket is available through EPA’s electronic public docket and comment system, EPA Dockets. You may access EPA

Dockets at http://www.regulations.gov to view public comments as they are submitted and posted, access the index listing of the contents of the

official public docket, and access those documents in the public docket that are available electronically. For additional information about EPA’s

public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although not all docket materials may be available

electronically, you may still access any of the publicly available docket materials through the Docket Facility.
B. What is the agencies’ authority for taking this action?
The authority for this action is the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., including sections 301, 304, 401, 402, 404 and 501.
C. What are the economic impacts of this action?
The proposed rule is a definitional rule that affects the scope of “waters of the United States.” This rule does not establish any regulatory

requirements or directly mandate actions on its own. However, by changing the definition of “waters of the United States,” the proposed rule would

change the waters where other regulatory requirements that affect regulated entities come into play, for example, the locations where regulated

entities would be required to obtain certain types of permits. The consequence of a water being deemed non-jurisdictional is simply that CWA provisions

no longer apply to that water. There are no avoided costs or forgone benefits if similar state regulations exist and continue to apply to that water.
III. Public Comments
The agencies solicit comment about the appropriateness of the proposed clarifying amendments to the definition of “waters of the United States,”

including their consistency with the Clean Water Act and the accomplishment of the goals of the Clean Water Act, and the effect of the proposed

amendments on state and tribal programs to maintain and improve water quality.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response

to OMB recommendations have been documented in the docket.
In addition, the agencies prepared an analysis of the potential avoided costs and forgone benefits associated with this action. This analysis is

contained in the Economic Analysis for the Proposed Definition of “Waters of the United States”—Recodification of Pre-existing Rules. A copy of the

analysis is available in the docket for this action.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities

contained in the existing regulations and has assigned OMB control numbers 2050-0021 and 2050-0135 for the CWA section 311 program and 2040-0004 for

the 402 program.
For the CWA section 404 regulatory program, the current OMB approval number for information requirements is maintained by the Corps (OMB approval

number 0710-0003). However, there are no new approval or application processes required as a result of this rulemaking that necessitate a new

Information Collection Request (ICR).
C. Regulatory Flexibility Act
We certify that this action will not have a significant economic impact on a substantial number of small entities. Because this action would simply

clarify the legal status quo, or result in reduced regulatory requirements, we have concluded that this action will not have a significant impact on

small entities. This analysis is contained in the Economic Analysis for the Proposed Definition of “Waters of the United States”—Recodification of

Pre-existing Rules. A copy of the analysis is available in the docket for this action.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small

governments. The definition of “waters of the United States” applies broadly to CWA programs. The action imposes no enforceable duty on any state,

local, or tribal governments, or the private sector, and does not contain regulatory requirements that might significantly or uniquely affect small

governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national

government and the States, or on the distribution of power and responsibilities among the various levels of government. Consistent with the agencies’

policy to promote communications with state and local governments, the agencies have informed states and local governments about this proposed

rulemaking.
F. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs
Pursuant to Executive Order 13771 (82 FR 9339, February 3, 2017) this proposed rule is expected to be an E.O. 13771 deregulatory action.
List of Subjects
33 CFR Part 328
• Environmental protection
• Administrative practice and procedure
• Intergovernmental relations
• Navigation
• Water pollution control
• Waterways
40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401
• Environmental protection
• Water pollution control
Dated: September 11, 2017.
Scott Pruneit,
Administrator, Environmental Protection Agency.
Dated: September 11, 2017.
Douglas W. Lamort,
Deputy Assistant Secretary of the Army (Project Planning and Review), performing the duties of the Assistant Secretary of the Army for Civil Works.
Title 33—Navigation and Navigable Waters
For the reasons set out in the preamble, title 33, chapter II of the Code of Federal Regulations is proposed to be amended as follows:
PART 328—DEFINITION OF WATERS OF THE UNITED STATES
Section 328.3 is amended to read as follows (new text indicated in bold, deleted text indicated in strikethrough):
§ 328.3
Definitions.
* * * * *
(a) The term waters of the United States means
(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters

which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie

potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce

including any such waters:
(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purpose by industries in interstate commerce;
(4) (3) All impoundments of waters otherwise defined as waters of the United States under the definition;
(5) (4) All relatively permanent, standing, or continuously flowing tributaries of waters identified in paragraphs (a)(1) through (4) (3) of this

section;
(6) (5) The territorial seas;
(7) (6) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1) through (6) (5) of this section ,

where adjacent means having a continuous surface connection to such waters.
(8) (7) Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted

cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with

EPA.
(8) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40

CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
(b) The term wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support,

and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally

include swamps, marshes, bogs, and similar areas.
(c) The term adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or

barriers, natural river berms, beach dunes and the like are “adjacent wetlands.”
(c) Tributary. The term tributary means a relatively permanent, standing, or continuously flowing body of water that contributes flow, either directly

or through another water (including an impoundment identified in paragraph (a)(3) of this section), to a water identified in paragraphs (a)(1), (a)(2),

or (a)(5) of this section. A tributary can be a natural, man-altered, or man-made water and the term includes waters such as rivers, streams, canals,

and ditches not excluded under paragraph (b) of this section. A water that otherwise so qualifies as a tributary under this definition does not lose

its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culvers, pipes, or dams), or one or more

natural breaks (such as wetlands along the run of the stream, debris piles, boulder fields, or a stream that flows underground) so long as the

tributary can be identified upstream of the break. A water that otherwise qualifies as a tributary under this definition does not lose its status as a

tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through a non-jurisdictional

water to a water identified in paragraphs (a)(1), (a)(2), or (a)(5) of this section.
(d) The term high tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The

high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of

fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that

delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency

but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a

coast by strong winds such as those accompanying a hurricane or other intense storm.
(e) The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics

such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of

litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
(f) The term tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the

moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to

masking by hydrologic, wind, or other effects.

* * * *
Title 40—Protection of Environment
For reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:
PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
12. Section 122.2 is amended by revising the definition of “Waters of the United States” to read as follows (new text indicated in bold, deleted text

indicated in strikethrough):
§ 122.2
Definitions.
* * * * *
(a) The term waters of the United States means
(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters

which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie

potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce

including any such waters:
(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purpose by industries in interstate commerce;
(4) (3) All impoundments of waters otherwise defined as waters of the United States under the definition;
(5) (4) All relatively permanent, standing, or continuously flowing tributaries of waters identified in paragraphs (a)(1) through (4) (3) of this

section;
(6) (5) The territorial seas;
(7) (6) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1) through (6) (5) of this section ,

where adjacent means having a continuous surface connection to such waters.
(8) (7) Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted

cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with

EPA.
(8) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40

CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
(b) The term wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support,

and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally

include swamps, marshes, bogs, and similar areas.
(c) The term adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or

barriers, natural river berms, beach dunes and the like are “adjacent wetlands.”
(c) Tributary. The term tributary means a relatively permanent, standing, or continuously flowing body of water that contributes flow, either directly

or through another water (including an impoundment identified in paragraph (a)(3) of this section), to a water identified in paragraphs (a)(1), (a)(2),

or (a)(5) of this section. A tributary can be a natural, man-altered, or man-made water and the term includes waters such as rivers, streams, canals,

and ditches not excluded under paragraph (b) of this section. A water that otherwise so qualifies as a tributary under this definition does not lose

its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culvers, pipes, or dams), or one or more

natural breaks (such as wetlands along the run of the stream, debris piles, boulder fields, or a stream that flows underground) so long as the

tributary can be identified upstream of the break. A water that otherwise qualifies as a tributary under this definition does not lose its status as a

tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through a non-jurisdictional

water to a water identified in paragraphs (a)(1), (a)(2), or (a)(5) of this section.
(d) The term high tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The

high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of

fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that

delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency

but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a

coast by strong winds such as those accompanying a hurricane or other intense storm.
(e) The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics

such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of

litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
(f) The term tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the

moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to

masking by hydrologic, wind, or other effects.

 

 

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