­
1­
Redline/
strikeout
of
final
rule
prepared
for
purposes
of
E.
O.
12866
§
6(
a)(
E)(
ii)
and
(
iii).
Compares
the
version
of
the
final
rule
as
signed
by
Army/
EPA
vs.
the
final
rule
draft
as
sent
to
OIRA
for
review
prior
to
signature.
(
6)(
a)(
E)(
ii).
Changes
made
at
the
suggestion
or
recommendation
of
OIRA,
(
6(
a)(
E)(
iii),
are
.

DEPARTMENT
OF
DEFENSE
Department
of
the
Army
Corps
of
Engineers
33
CFR
Part
328
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts110Parts
110,
112,
116,
117,
122,
230,
232,
300,
and
401
FRL
_______

RIN
2040­
AB74
Advance
Notice
of
Proposed
Rulemaking
on
the
Clean
Water
Act
Regulatory
Definition
of
"
Waters
of
the
United
States"

AGENCIES:
U.
S.
Army
Corps
of
Engineers,
Department
of
the
Army,
DOD;
and
Environmental
Protection
Agency
­
2­
ACTION:
Advance
Notice
of
Proposed
Rulemaking
SUMMARY:
The
U.
S.
Army
Corps
of
Engineers
(
Corps)
and
the
Environmental
Protection
Agency
(
EPA)
are
today
issuing
an
advance
notice
of
proposed
rulemaking
(
ANPRM)
in
order
to
obtain
early
comment
on
issues
associated
with
the
scope
of
waters
that
are
subject
to
the
Clean
Water
Act
(
CWA),
in
light
of
the
U.
S.
Supreme
Court
decision
in
Solid
Waste
Agency
of
Northern
Cook
County
v.
U.
S.
Army
Corps
of
Engineers,
531
U.
S.
159
(
2001)
(
SWANCC).

Today's
ANPRM
requests
public
input
on
issues
associated
with
the
definition
of
"
waters
of
the
United
States"
and
also
solicits
information
or
data
from
the
general
public,
the
scientific
community,
and
Federal
and
State
resource
agencies
on
the
implications
of
the
SWANCC
decision
for
jurisdictional
decisions
under
the
CWA.
The
goal
of
the
agencies
is
to
develop
proposed
regulations
that
will
further
the
public
interest
by
clearly
delineatingclarifying
what
waters
are
subject
to
CWA
jurisdiction
and
affording
full
protection
to
these
waters
through
an
appropriate
focus
of
fFederal
and
sState
resources
consistent
with
the
CWA.
The
input
received
from
the
public
in
response
to
today's
ANPRM
will
be
used
by
the
agencies
to
determine
the
issues
to
be
addressed
and
the
substantive
approach
for
a
future
proposed
rulemaking
addressing
the
scope
of
CWA
jurisdiction.

Pending
this
rulemaking,
should
questions
arise,
the
regulated
community
should
seek
assistance
from
the
Corps
and
EPA,
in
accordance
with
the
joint
memorandum
attached
as
Appendix
A.

DATES:
In
order
to
be
considered,
comments
or
information
in
response
to
this
ANPRM
must
­
3­
be
postmarked
or
e­
mailed
on
or
before
[
Insert
date
45
days
after
the
date
of
publication
in
the
FEDERAL
REGISTER].

ADDRESSES:
Comments
may
be
submitted
electronically,
by
mail,
or
through
hand
delivery/
courier.
Mail
comments
to:
Water
Docket,
Environmental
Protection
Agency,
Mailcode
4101T,
1200
Pennsylvania
Ave.,
NW,
Washington,
DC
20460,
Attention
Docket
ID
No.
OW­

2002­
0050.

FOR
FURTHER
INFORMATION
CONTACT:
For
information
on
this
ANPRM,
contact
either
Donna
Downing,
U.
S.
Environmental
Protection
Agency,
Office
of
Wetlands,
Oceans
and
Watersheds
(
4502T),
1200
Pennsylvania
Avenue
N.
W.,
Washington,
DC
20460,
phone:
(
202)

566­
1366,
e­
mail:
cwawaters@
epaCWAwaters@
epa.
gov,
or
Ted
Rugiel,
U.
S.
Army
Corps
of
Engineers,
ATTN
CECW­
OR,
441
G
Street
N.
W.,
Washington,
DC
20314­
1000,
phone:
(
202)

761­
4595,
e­
mail:
Thaddeus.
J.
Rugiel@
HQ02.
USACE.
ARMY.
MIL.

SUPPLEMENTARY
INFORMATION:

I.
General
Information
A.
Potentially
Regulated
Entities
Persons
or
entities
that
discharge
pollutants
(
including
dredged
or
fill
material)
to
"
waters
of
the
U.
S."
could
be
regulated
by
a
rulemaking
based
on
this
ANPRM.
The
CWA
generally
prohibits
the
discharge
of
pollutants
into
"
waters
of
the
U.
S."
without
a
permit
issued
by
EPA
or
a
State
or
Tribe
approved
by
EPA
under
§
section
402
of
the
Act,
or,
in
the
case
of
dredged
or
fill
­
4­
material,
by
the
Corps
or
an
approved
State
or
Tribe
under
§
section
404
of
the
Act.
In
addition,

under
the
CWA,
States
or
approved
Tribes
establish
water
quality
standards
for
"
waters
of
the
U.
S.",
and
also
may
assume
responsibility
for
issuance
of
CWA
permits
for
discharges
into
waters
and
wetlands
subject
to
the
Act.
Today's
ANPRM
seeks
public
input
on
what,
if
any,

revisions
in
light
of
SWANCC
might
be
appropriate
to
the
regulations
that
define
"
waters
of
the
U.
S.",
and
today's
ANPRM
thus
would
be
of
interest
to
all
entities
discharging
to,
or
regulating,

such
waters.
In
addition,
because
the
Oil
Pollution
Act
(
OPA)
is
applicable
to
waters
and
wetlands
subject
to
the
CWA,
today's
ANPRM
may
have
implications
for
persons
or
entities
subject
to
the
OPA.
Examples
of
entities
potentially
regulated
include:

EXAMPLES
OF
POTENTIALLY
CATEGORY
REGULATED
ENTITIES
State/
Tribal
governments
or
instrumentalities
State/
Tribal
agencies
or
instrumentalities
that
discharge
or
spill
pollutants
into
waters
of
the
U.
S.

Local
governments
or
instrumentalities
Local
governments
or
instrumentalities
that
discharge
or
spill
pollutants
into
waters
of
the
U.
S.

Federal
government
agencies
or
instrumentalities
Federal
government
agencies
or
instrumentalities
that
discharge
or
spill
pollutants
into
waters
of
the
U.
S.

Industrial,
commercial,
or
agricultural
entities
Industrial,
commercial,
or
agricultural
entities
that
discharge
or
spill
pollutants
into
waters
of
the
U.
S.
­
5­
Land
developers
and
landowners
Land
developers
and
landowners
that
discharge
or
spill
pollutants
into
waters
of
the
U.
S.

This
table
is
not
intended
to
be
exhaustive,
but
rather
provides
a
guide
for
readers
regarding
entities
that
are
likely
to
be
regulated
by
a
rulemaking
based
on
this
ANPRM.
This
table
lists
the
types
of
entities
that
we
are
now
aware
of
that
could
potentially
be
regulated.
Other
types
of
entities
not
listed
in
the
table
could
also
be
regulated.
To
determine
whether
your
organization
or
its
activities
regulated,
you
should
carefully
examine
the
discussion
in
this
ANPRM.
If
you
have
questions
regarding
the
applicability
of
this
action
to
a
particular
entity,

consult
one
of
the
persons
listed
in
the
preceding
FOR
FURTHER
INFORMATION
CONTACT
section.

B.
How
Can
I
Get
Copies
of
This
Document
and
Other
Related
Information?

1.
Docket.
established
an
official
public
docket
for
this
action
under
Docket
ID
No.
OW­
2002­
0050.
The
official
public
docket
consists
of
the
documents
specifically
referenced
in
this
ANPRM,
any
public
comments
received,
and
other
information
related
to
this
ANPRM.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
The
official
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
Water
Docket
in
the
EPA
Docket
Center,
(
EPA/
DC)
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW,
Washington,
DC.
The
EPA
Docket
Center
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
­
6­
number
for
the
Public
Reading
Room
is
(
202)
566­
1744,
and
the
telephone
number
for
the
Water
Docket
is
(
202)
566­
2426).
You
may
have
to
pay
a
reasonable
fee
for
copying.

b
2.
Electronic
Access.
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
Federal
Register
listings
at
http://
www.
epa.
gov/
fedrgstr/.

An
electronic
version
of
the
public
docket
is
available
through
EPA's
electronic
public
docket
and
comment
system,
EPA
Dockets.
You
may
use
EPA
Dockets
at
http://
www.
epa.
gov/
edocket/
to
submit
or
view
public
comments,
access
the
index
listing
of
the
contents
of
the
official
public
docket,
and
to
access
those
documents
in
the
public
docket
that
are
available
electronically.
Once
in
the
system,
select
search,
then
key
in
the
appropriate
docket
identification
number.

Certain
types
of
information
will
not
be
placed
in
the
EPA
Dockets.
Information
claimed
as
CBI
and
other
information
whose
disclosure
is
restricted
by
statute,
which
is
not
included
in
the
official
public
docket,
will
not
be
available
for
public
viewing
in
EPA's
electronic
public
docket.
EPA's
policy
is
that
copyrighted
material
will
not
be
placed
in
EPA's
electronic
public
docket
but
will
be
available
only
in
printed,
paper
form
in
the
official
public
docket.
Although
not
all
docket
materials
may
be
available
electronically,
you
may
still
access
any
of
the
publicly
available
docket
materials
through
the
docket
facility
identified
abovein
I.
B.
1.

For
those
who
submit
public
comments,
it
is
important
to
note
that
EPA's
policy
is
that
public
comments,
whether
submitted
electronically
or
in
paper,
will
be
made
available
for
public
viewing
in
EPA's
electronic
public
docket
as
EPA
receives
them
and
without
change,
unless
the
comment
contains
copyrighted
material,
CBI,
or
other
information
whose
disclosure
is
restricted
­
7­
by
statute.
When
EPA
identifies
a
comment
containing
copyrighted
material,
EPA
will
provide
a
reference
to
that
material
in
the
version
of
the
comment
that
is
placed
in
EPA's
electronic
public
docket.
The
entire
printed
comment,
including
the
copyrighted
material,
will
be
available
in
the
public
docket.

Public
comments
submitted
on
computer
disks
that
are
mailed
or
delivered
to
the
docket
will
be
transferred
to
EPA's
electronic
public
docket.
Public
comments
that
are
mailed
or
delivered
to
the
Docket
will
be
scanned
and
placed
in
EPA's
electronic
public
docket.
Where
practical,
physical
objects
will
be
photographed,
and
the
photograph
will
be
placed
in
EPA's
electronic
public
docket
along
with
a
brief
description
written
by
the
docket
staff.

C..
How
and
To
Whom
Do
I
Submit
Comments?

You
may
submit
comments
electronically,
by
mail,
or
through
hand
delivery/
courier.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
(
OW­
2002­

0050)
in
the
subject
line
on
the
first
page
of
your
comment.
Please
ensure
that
your
comments
are
submitted
within
the
specified
comment
period.
Comments
received
after
the
close
of
the
comment
period
will
be
marked
late.
not
required
to
consider
these
late
comments.

a
1.
Electronically.
If
you
submit
an
electronic
comment
as
prescribed
below,
EPA
recommends
that
you
include
your
name,
mailing
address,
and
an
e­
mail
address
or
other
contact
information
in
the
body
of
your
comment.
Also
include
this
contact
information
on
the
outside
of
any
disk
or
CD
ROM
you
submit,
and
in
any
cover
letter
accompanying
the
disk
or
CD
ROM.

This
ensures
that
you
can
be
identified
as
the
submitter
of
the
comment
and
allows
EPA
to
­
8­
contact
you
in
case
EPA
cannot
read
your
comment
due
to
technical
difficulties
or
needs
further
information
on
the
substance
of
your
comment.
EPA's
policy
is
that
EPA
will
not
edit
your
comment,
and
any
identifying
or
contact
information
provided
in
the
body
of
a
comment
will
be
included
as
part
of
the
comment
that
is
placed
in
the
official
public
docket,
and
made
available
in
EPA's
electronic
public
docket.
If
EPA
cannot
read
your
comment
due
to
technical
difficulties
and
cannot
contact
you
for
clarification,
may
not
be
able
to
consider
your
comment.

i.
EPA
Dockets.
Your
use
of
EPA's
electronic
public
docket
to
submit
comments
to
EPA
electronically
is
EPA's
preferred
method
for
receiving
comments.
Go
directly
to
EPA
Dockets
at
http://
www.
epa.
gov/
edocket,
and
follow
the
online
instructions
for
submitting
comments.
Once
in
the
system,
select
search,
and
then
key
in
Docket
ID
No.
OW­
2002­
0050.
The
system
is
an
anonymous
access
system,
which
means
EPA
will
not
know
your
identity,
e­
mail
address,
or
other
contact
information
unless
you
provide
it
in
the
body
of
your
comment.

ii.
E­
mail.
Comments
may
be
sent
by
electronic
mail
(
e­
mail)
to
cwajurisdictionruleCWAwaters@
epa.
gov,
Attention
Docket
ID
No.
OW­
2002­
0050.
In
contrast
to
EPA's
electronic
public
docket,
EPA's
e­
mail
system
is
not
an
anonymous
access
system.
If
you
send
an
e­
mail
comment
directly
to
the
Docket
without
going
through
EPA's
electronic
public
docket,
EPA's
e­
mail
system
automatically
captures
your
e­
mail
address.
E­
mail
addresses
that
are
automatically
captured
by
EPA's
e­
mail
system
are
included
as
part
of
the
comment
that
is
placed
in
the
official
public
docket,
and
made
available
in
EPA's
electronic
public
docket.

iii.
Disk
or
CD
ROM.
You
may
submit
comments
on
a
disk
or
CD
ROM
that
you
mail
to
the
mailing
address
identified
abovein
I.
C.
2.
These
electronic
submissions
will
be
accepted
in
­
9­
WordPerfect
or
ASCII
file
format.
Avoid
the
use
of
special
characters
and
any
form
of
encryption.

b
2.
By
Mail.
Send
four
copies
of
your
comments
to:
Water
Docket,
Environmental
Protection
Agency,
Mailcode
4101T,
1200
Pennsylvania
Ave.,
NW,
Washington,
DC
20460,

Attention
Docket
ID
No.
OW­
2002­
0050.

c
3.
By
Hand
Delivery
or
Courier.
Deliver
your
comments
to:
Water
Docket,
EPA
Docket
Center,
EPA
West,
Room
B102,
13001
Constitution
Avenue,
NW,
Washington,
DC
20004,

Attention
Docket
ID
No.
OW­
2002­
0050.
Such
deliveries
are
only
accepted
during
the
Docket's
normal
hours
of
operation
as
identified
abovein
I.
B.
1.

4
D.
What
Should
I
Consider
as
I
Prepare
My
Comments
You
may
find
the
following
suggestions
helpful
for
preparing
your
comments:

a.
Explain
your
views
as
clearly
as
possible.

b.
Describe
any
assumptions
that
you
used.

c.
Provide
any
technical
information
and/
or
data
on
which
you
based
your
views.

d.
If
you
estimate
potential
burden
or
costs,
explain
how
you
arrived
at
your
estimate.

e.
Provide
specific
examples
to
illustrate
your
concerns.

f.
Offer
alternatives.

g.
Make
sure
to
submit
your
comments
by
the
comment
period
deadline
identified.

h.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
response.
It
would
also
be
helpful
if
you
provided
the
­
10­
name,
date,
and
Federal
Register
citation
related
to
your
comments.

II.
The
Importance
of
a
Comprehensive
Review
ofUpdating
the
Regulations
The
agencies
have
not
engaged
in
a
review
of
the
regulations
with
the
public
concerning
CWA
jurisdiction
for
some
time.
This
ANPRM
will
help
ensure
that
the
regulations
are
consistent
with
the
CWA
and
the
public
understands
what
waters
are
subject
to
CWA
jurisdiction.

The
goal
of
the
agencies
is
to
develop
proposed
regulations
that
will
further
the
public
interest
by
clearly
delineatingclarifying
what
waters
are
subject
to
CWA
jurisdiction
and
affording
full
protection
to
these
waters
through
an
appropriate
focus
of
fFederal
and
sState
resources
consistent
with
the
CWA.
The
agencies
believe
it
is
appropriate
to
undertake
such
a
rulemaking
at
this
time
for
several
reasons.

It
is
appropriate
to
review
the
regulations
to
ensure
that
they
are
consistent
with
the
SWANCC
decision.
SWANCC
eliminates
CWA
jurisdiction
over
isolated
waters
that
are
intrastate
and
nonnavigable
where
the
sole
basis
for
asserting
CWA
jurisdiction
is
the
actual
or
potential
use
of
the
waters
as
habitat
for
migratory
birds
that
cross
sState
lines
in
their
migrations.
SWANCC
also
calls
into
question
whether
CWA
jurisdiction
over
isolated,
intrastate,
non­
navigable
waters
could
now
be
predicated
on
the
other
factors
listed
in
the
m"
Migratory
bBird
rRule"
or
the
other
rationales
of
33
CFR
§
328.3(
a)(
3)(
i)­(
iii).

Because
SWANCC
limited
use
of
§
328.3(
a)(
3)
as
a
basis
of
jurisdiction
over
certain
isolated
waters,
it
has
focused
greater
attention
on
CWA
jurisdiction
generally,
and
specifically
over
tributaries
to
jurisdictional
waters
and
over
wetlands
that
are
"
adjacent
wetlands"
for
CWA
purposes.

The
regulations
governing
jurisdiction
over
waters
of
the
United
States
have
not
been
revised
in
a
long
time.
In
light
of
important
jurisdictional
questions
and
varying
legal
analyses
in
cases
that
­
11­
have
developed
over
the
years,
the
agencies
believe
it
is
necessary
to
review
existing
regulations
to
determine
whether
further
clarification
of
the
regulations
will
ensure
consistent
interpretation
by
all
Corps
districts
and
EPA
Regions.

Although
the
SWANCC
case
itself
specifically
involves
Ssection
404
of
the
CWA,
the
Court's
decision
may
also
affect
the
scope
of
regulatory
jurisdiction
under
other
provisions
of
the
CWA,
including
programs
under
sections
303,
311,
401,
and
402.
Under
each
of
these
sections,

the
relevant
agencies
have
jurisdiction
over
"
waters
of
the
United
States."
The
agencies
will
consider
the
potential
implications
of
the
rulemaking
for
these
other
sections.

·

§
Section
404
dredged
and
fill
material
permit
program.
This
program
establishes
a
permitting
system
to
regulate
discharges
of
dredged
or
fill
material
into
waters
of
the
United
States.

·

§
Section
303
water
quality
standards
program.
Under
this
program,
States
and
authorized
Indian
Tribes
establish
water
quality
standards
for
navigable
waters
to
"
protect
the
public
health
or
welfare"
and
"
enhance
the
quality
of
water",
"
taking
into
consideration
their
use
and
value
for
public
water
supplies,
propagation
of
fish
and
wildlife,
recreational
purposes,
and
agriculture,
industrial,
and
other
purposes,

and
also
taking
into
consideration
their
use
and
value
for
navigation."

·

CWA
§
Section
311
spill
program
and
the
Oil
Pollution
Act
(
OPA).
Section
311
­
12­
of
the
CWA
addresses
pollution
from
both
oil
and
hazardous
substance
releases.

Together
with
the
Oil
Pollution
Act,
it
provides
EPA
and
the
U.
S.
Coast
Guard
with
the
authority
to
establish
a
program
for
preventing,
preparing
for,
and
responding
to
spills
that
occur
in
navigable
waters
of
the
United
States.

·

§
Section
401
State
water­
quality
certification
program.
Section
401
provides
that
no
Federal
permit
or
license
for
activities
that
might
result
in
a
discharge
to
navigable
waters
may
be
issued
unless
a
§
section
401
water­
quality
certification
is
obtained
from
or
waived
by
States
or
authorized
Tribes.

·

§
Section
402
National
Pollutant
Discharge
Elimination
System
(
NPDES)

permitting
program.
This
program
establishes
a
permitting
system
to
regulate
point
source
discharges
of
pollutants
(
other
than
dredged
or
fill
material)
into
waters
of
the
United
States.

III.
Legislative
and
Regulatory
Context
The
Federal
Water
Pollution
Control
Act
Amendments,
now
known
as
the
Clean
Water
Act
(
CWA),
was
enacted
in
1972.
In
the
years
since
its
enactment,
the
scope
of
waters
regulated
under
the
CWA
has
been
discussed
in
regulations,
legislation,
and
judicial
decisions.

The
CWA
was
intended
to
"
restore
and
maintain
the
chemical,
physical,
and
biological
­
13­
integrity
of
the
Nation's
waters."
33
U.
S.
C.
§
section
1251(
a).
Its
specific
provisions
were
designed
to
improve
upon
the
protection
of
the
Nation's
waters
provided
under
earlier
statutory
schemes
such
as
the
Rivers
and
Harbors
Act
of
1899
("
RHA")
(
33
U.
S.
C.
§
§
sections
403,
407,

411)
and
the
Federal
Water
Pollution
Control
Act
of
1948
(
62
Stat.
1155)
and
its
subsequent
amendments
through
1970.
In
doing
so,
Congress
recognized
"
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
.
.
.
."
33
U.
S.
C.
§
section
1251(
b).

The
jurisdictional
scope
of
the
CWA
is
"
navigable
waters,"
defined
in
the
statute
as
"
waters
of
the
United
States,
including
the
territorial
seas."
CWA
§
section
502(
7),
33
U.
S.
C.

§
section
1362(
7).
The
existing
CWA
§
section
404
regulations
define
"
waters
of
the
United
States"
as
follows:

(
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
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
­
14­
(
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
purposes
by
industries
in
interstate
commerce.

(
4)
All
impoundments
of
waters
otherwise
defined
as
waters
of
the
United
States
under
the
definition;

(
5)
Tributaries
of
waters
identified
in
paragraphs
(
a)(
1)­(
4)
of
this
section;

(
6)
The
territorial
seas;

(
7)
Wetlands
adjacent
to
waters
(
other
than
waters
that
are
themselves
wetlands)
identified
in
paragraphs
(
a)(
1)­(
6)
of
this
section.

(
8)
Waters
of
the
United
States
do
not
include
prior
converted
cropland
...

Waste
treatment
systems,
including
treatment
ponds
or
lagoons
designed
to
meet
the
requirements
of
CWA
(
other
than
cooling
ponds
...)
are
not
waters
of
the
United
States.

40
CFR.
F.
R
230.3(
s);
33
CFR
§
328.3(
a).

Counterpart
and
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
(
hereafter
referred
to
as
"
the
counterpart
definitions").

In
regulatory
preambles,
both
the
Corps
and
EPA
provided
examples
of
additional
types
of
links
to
interstate
commerce
which
might
serve
as
a
basis
under
and
33
CFR
328.3(
a)(
3)
for
establishing
CWA
jurisdiction
over
intrastate
waters
which
were
not
part
of
the
tributary
system
or
their
adjacent
wetlands.
These
included
use
of
waters
(
1)
as
habitat
by
birds
protected
by
Migratory
Bird
Treaties
or
which
cross
State
lines,
(
2)
as
habitat
for
­
15­
endangered
species,
or
(
3)
to
irrigate
crops
sold
in
commerce.
51
FR
41217
(
November
13,

1986),
53
FR
20765
(
June
6,
1988).
These
examples
became
known
as
the
"
Migratory
Bird
Rule,"
even
though
the
examples
were
neither
a
rule
nor
entirely
about
birds.
The
Migratory
Bird
Rule
later
became
the
focus
of
the
SWANCC
case.

Since
enactment
of
the
CWA,
numerous
courts
have
addressed
the
definition
of
"
waters
of
the
United
States"
protected
under
the
CWA.
The
Supreme
Court
has
recognized
that
the
definition
of
navigable
waters
in
CWA
§
502(
7)
clearly
includes
those
waters
that
are
considered
traditional
navigable
waters.
Traditional
navigable
waters
are
waters
that
are
subject
to
the
ebb
and
flow
of
the
tide,
or
waters
that
are
presently
used,
or
have
been
used
in
the
past,
or
may
be
susceptible
for
use
to
transport
interstate
or
foreign
commerce.
In
addition,
the
Court
reiterated
in
SWANCC,

531
U.
S.
at
167,
that
"
Congress
evidenced
its
intent
to
`
regulate
at
least
some
waters
that
would
not
be
deemed
'
navigable'
under
the
classical
understanding
of
that
term.'"
Id.
(
quoting
United
States
v.
Riverside
Bayview
Homes,
Inc.,
474
U.
S.
121,
133
(
1985)).

The
Supreme
Court
did
not
disturb
its
earlier
holding
in
Riverside
when
it
rendered
its
decision
in
SWANCC.
The
Court
in
SWANCC
restated
its
Riverside
finding
that
"
Congress'
concern
for
the
protection
of
water
quality
and
aquatic
ecosystems
indicated
its
intent
to
regulate
wetlands
`
inseparably
bound
up
with
the
`
waters'
of
the
United
States.'"
531
U.
S.
at
167
(
quoting
Riverside,
474
U.
S.
at
134).
The
Court
also
noted
that
its
holding
in
Riverside
"
was
based
in
large
measure
upon
Congress'
unequivocal
acquiescence
to,
and
approval
of,
the
Corps'

regulations
interpreting
the
CWA
to
cover
wetlands
adjacent
to
navigable
waters."
SWANCC,

531
U.
S.
at
167.

Several
federal
district
and
appellate
courts
have
addressed
the
effect
of
SWANCC
on
CWA
jurisdiction,
and
the
case
law
on
the
precise
scope
of
federal
CWA
jurisdiction
in
light
of
SWANCC
is
still
developing.
While
a
majority
of
the
cases
hold
that
SWANCC
applies
only
to
waters
that
are
isolated,
intrastate,
and
non­
navigable,
several
courts
have
interpreted
­
16­
SWANCC's
reasoning
to
apply
to
waters
other
than
the
isolated
waters
at
issue
in
that
case.
For
a
further
discussion
of
the
case
law,
please
see
Appendix
A.

A
number
of
court
decisions
have
held
that
SWANCC
does
not
change
the
principle
that
CWA
jurisdiction
extends
to
tributaries
of
navigable
waters.
However,
some
courts
have
interpreted
the
reasoning
in
SWANCC
to
potentially
circumscribe
jurisdiction
over
tributaries
by
finding
CWA
jurisdiction
attaches
only
where
navigable
waters
and
waters
immediately
adjacent
to
navigable
waters
are
involved.

CWA
jurisdiction
also
extends
to
wetlands
that
are
adjacent
to
traditional
navigable
waters.
The
reasoning
in
Riverside,
as
followed
by
a
number
of
post­
SWANCC
courts,
has
been
interpreted
to
support
jurisdiction
over
wetlands
adjacent
to
non­
navigable
waters
that
are
tributaries
to
navigable
waters.
Since
SWANCC,
some
courts
have
expressed
the
view
that
SWANCC
raised
questions
about
adjacency
jurisdiction,
so
that
wetlands
are
jurisdictional
only
if
they
are
adjacent
to
navigable
waters.

IV.
Potential
Natural
Resource
Implications
To
date,
some
quantitative
studies
and
anecdotal
data
provide
early
estimates
of
potential
resource
implications
of
the
SWANCC
decision.
One
of
the
purposes
of
the
ANPRM
is
to
solicit
additional
information,
data,
or
studies
addressing
the
extent
of
resource
impacts
to
waters
that
may
be
affected
by
the
issues
discussed
in
this
ANPRM
including
isolated,
intrastate,

nonnavigable
waters.

Non­
navigable
intrastate
isolated
waters
occur
throughout
the
country.
Their
extent
depends
on
a
variety
of
factors
including
topography,
climate,
and
hydrologic
forces.
A
peerreviewed
report
by
the
U.
S.
Fish
and
Wildlife
Service
concludes
that
wetlands
completely
­
17­
surrounded
by
upland
appear
most
extensive
in
arid
and
semi­
arid
areas,
and
in
areas
with
karst
topography.
See
Tiner,
R.
W.,
H.
C.
Bergquist,
G.
P.
DeAlessio,
and
M.
J.
Starr,
"
Geographically
Isolated
Wetlands:
A
Preliminary
Assessment
of
their
Characteristics
and
Status
in
Selected
Areas
of
the
United
States"
(
June
2002)(
U.
S.
Dept.
of
Interior,
Fish
and
Wildlife
Service,
available
at
http://
www.
wetlands.
fws.
gov/
Pubs_
Reports/).
Preliminary
assessments
of
potential
resource
impacts
vary
widely
depending
on
the
scenarios
considered.
See,
e.
g.,
Ducks
Unlimited,
"
The
SWANCC
Decision:
Implications
for
Wetlands
and
Waterfowl"
(
September
2001)
(
available
at
http://
www.
ducks.
org/
conservation/
404_
report.
asp);
ASWM,
"
SWANCC
Decision
and
the
State
Regulation
of
Wetlands,"
(
June
2001)
(
available
at
http://
www.
aswm.
org).

There
is
an
extensive
body
of
knowledge
about
the
functions
and
values
of
wetlands,

which
include
flood
risk
reduction,
water
quality
improvement,
fish
and
wildlife
habitat,
and
maintenance
of
the
hydrologic
integrity
of
aquatic
ecosystems.
The
ANPRM
seeks
information
regarding
the
functions
and
values
of
wetlands
and
other
waters
that
may
be
affected
by
the
issues
discussed
in
this
ANPRM.

V.
Solicitation
of
Comments
The
agencies
are
seeking
comment
on
issues
related
to
the
jurisdictional
status
of
isolated
waters,
tributaries,
and
adjacent
wetlands
under
the
CWA
which
the
public
wishes
to
call
to
our
attention.
To
assist
the
public
in
considering
these
issues,
the
following
discussion
and
specific
questions
are
presented.
The
agencies
will
carefully
consider
the
responses
received
to
this
ANPRM
in
determining
what
regulatory
changes
may
be
appropriate
and
the
issues
to
be
addressed
in
a
proposed
rulemaking
to
clarify
CWA
jurisdiction.
­
18­
33
CFR
§
328.3(
a)(
3)
factors
The
SWANCC
holding
eliminates
CWA
jurisdiction
over
isolated,
intrastate,

nonnavigable
waters
where
the
sole
basis
for
asserting
CWA
jurisdiction
is
the
actual
or
potential
use
of
the
waters
as
habitat
for
migratory
birds
that
cross
State
lines
in
their
migrations.
531
U.
S.
at
174
("
We
hold
that
33
CFR
§
328.3(
a)(
3)
(
1999),
as
clarified
and
applied
to
petitioner's
balefill
site
pursuant
to
the
`
Migratory
Bird
Rule,'
51
Fed.
Reg.
41217
(
1986),
exceeds
the
authority
granted
to
respondents
under
§
404(
a)
of
the
CWA.").
In
view
of
this
holding
and
the
Court's
underlying
rationale,
the
agencies
seek
comment
on
the
continued
validity
of
the
other
factors
listed
in
the
Migratory
Bird
Rule
(
51
FR
41217;
53
FR
20765).
The
agencies
also
seek
comment
on
the
use
of
the
factors
in
the
33
CFR
§
328.3(
a)(
3)(
i)­(
iii)
or
the
counterpart
regulations
in
determining
CWA
jurisdiction
over
isolated,
intrastate,
non­
navigable
waters.

The
agencies
solicit
comment
from
the
public
on
the
following
issues
related
to
isolated
non­
navigable
intrastate
waters:

1)
Whether,
and
if
so,
under
what
circumstances,
the
other
factors
in
the
Migratory
Bird
Rule
not
specifically
at
issue
in
SWANCC
(
i.
e.,
use
of
the
water
as
habitat
for
federally
protected
endangered
or
threatened
species,
or
use
of
the
water
to
irrigate
crops
sold
in
interstate
commerce),
should
be
considered
in
determining
CWA
jurisdiction
over
isolated,
intrastate,

nonnavigable
waters?

2)
1)
Whether,
and,
if
so,
under
what
circumstances,
the
factors
listed
in
33
CFR
328.3(
a)(
3)(
i)­(
iii)
(
i.
e.,
use
of
the
water
by
interstate
or
foreign
travelers
for
recreational
or
other
purposes,
the
presence
of
fish
or
shellfish
that
could
be
taken
and
sold
in
interstate
commerce,
the
use
of
the
water
for
industrial
purposes
by
industries
in
interstate
commerce)
or
any
other
­
19­
factors
should
be
theprovide
a
basis
for
determining
CWA
jurisdiction
over
isolated,
intrastate,
non­
navigable
waters?

3)
If
2)
Whether
the
regulations
are
revised
toshould
define
"
isolated
waters,"
and
if
so,
what
factors
should
be
considered
in
determining
whether
a
water
is
or
is
not
isolated
for
jurisdictional
purposes
(
e.
g,
hydrologic
connections
such
as
storm
events,
presence
on
floodplain,
sheetflow,
groundwater
connections;
ecological
connections
such
as
breeding
habitat
for
aquatic
species
in
jurisdictional
waters)?

Tributaries
The
existing
regulations
assert
CWA
jurisdiction
over
tributaries
to
jurisdictional
waters.
33
CFR
328.3(
a)(
5);
40
CFR
230.3(
s)(
5)
and
counterpart
regulations.
These
regulations,
however,
do
not
define
the
term
"
tributary."
Corps
(
but
not
EPA)
regulations
provide
that,
in
the
absence
of
adjacent
wetlands,
the
lateral
limits
of
non­
tidal
waters
extend
to
the
Ordinary
High
Water
Mark
(
OHWM),
and
also
define
that
term.
33
CFR
328.3(
e);
328.4(
c)(
1)).
Neither
Corps
nor
EPA
regulations,
however,
specify
an
upstream
limit
for
CWA
jurisdiction
over
tributaries.

While
the
holding
in
SWANCC
did
not
directly
address
the
jurisdictional
status
of
tributaries,
the
SWANCC
decision
has
focused
greater
scrutiny
on
the
other
aspects
of
the
regulatory
definition
of
waters
of
the
U.
S.,
including
tributaries.
In
addition,
some
post
­
SWANCC
cases,
have
considered
whether
it
affects
jurisdiction
over
tributaries.
For
example,
in
Headwaters,
Inc.
v.

Talent
Irrigation
Dist.,
243
F.
3d
526
(
9th
Cir.
2001),
the
Ninth
Circuit
found
that
it
did
not,
while
the
Fifth
Circuit
in
Rice
v.
Harken,
250
F.
3d
264
(
5th
Cir.
2001)
suggested
that
CWA
tributary
jurisdiction
is
limited
to
waters
that
are
actually
navigable
or
adjacent
to
an
open
body
of
navigable
water.
­
20­
The
agencies
solicit
comment
from
the
public
on
the
following
issues
related
to
tributaries:

4)
If
the
regulations
are
revised
to
define
the
term
"
tributary"
for
purposes
of
CWA
jurisdiction,
what
factors,
characteristics,
or
attributes
of
a
water
should
or
should
not
be
considered
in
determining
whether
the
water
is
a
tributary
for
jurisdictional
purposes?
For
example,
should
consideration
be
given
to
the
frequency
and
duration
of
flow
(
i.
e.,
intermittent
or
ephemeral
nature)
in
defining
"
tributary"?

5)
If
the
regulations
are
revised
to
specify
how
to
determine
upstream
and
lateral
boundaries
of
tributaries
for
purposes
of
CWA
jurisdiction,
what
factors
should
or
should
not
be
considered
in
making
these
determinations?

6)
If
the
regulations
are
revised
to
address
the
presence
of
man­
made
features
(
e.
g.,
ditches,

pipes,
etc.)
or
similar
alterations
to
the
course
or
flow
of
a
natural
waterbody,
under
what
circumstances
and
to
what
extent
should
alterations
affect
or
not
affect
whether
the
water
is
a
tributary
for
jurisdictional
purposes?

Adjacent
Wetlands
The
existing
regulations
assert
CWA
jurisdiction
over
wetlands
adjacent
to
jurisdictional
waters.

33
CFR
328.3(
a)(
7);
40
CFR
230.3(
s)(
7)
and
counterpart
regulations.
In
addition,
Corps
and
EPA
regulations
have
defined
"
adjacent"
as:

"
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.'"

33
CFR
328.3(
b);
40
CFR
230.3(
b).

These
regulations
do
not
directly
specify
whether
the
basis
for
adjacency
is
geographic
proximity,
­
21­
hydrology,
and/
or
a
combination
of
these
or
other
factors.

The
agencies
solicit
comment
from
the
public
on
the
following
adjacency
issues:

7)
Should
the
regulatory
definition
of
"
adjacent"
be
revised?
If
so,
what
geographic,

hydrological,
ecological
or
other
factors
should
or
should
not
be
considered
in
determining
adjacency
for
CWA
jurisdictional
purposes?

8)
In
the
context
of
adjacency,
existing
regulations
mention
only
adjacent
wetlands.
Should
the
concept
of
adjacency
also
be
explicitly
applied
to
non­
navigable,
intrastate
lakes
and
ponds?

9)
Should
the
agencies
consider
or
not
consider
the
type
of
water
body
to
which
a
nonnavigable
intrastate
water
and/
or
wetland
is
adjacent
when
determining
its
jurisdictional
status
(
e.
g.,
adjacent
to
any
jurisdictional
water,
adjacent
to
traditional
navigable
waters)?

?

Solicitation
of
information
In
answering
the
nine
questions
set
forth
above,
please
provide,
as
appropriate,
any
information
(
e.
g.,
scientific
and
technical
studies
and
data,
analysis
of
environmental
impacts,

effects
on
interstate
Ccommerce,
other
impacts,
etc.)
supporting
your
views,
and
specific
recommendations
on
how
to
implement
such
views.
Additionally,
we
invite
your
views
as
to
whether
any
other
clarifications
are
needed
to
the
existing
regulations
bearing
on
CWA
geographicwhich
waters
are
jurisdiction
are
neededal
under
the
CWA.
As
noted
elsewhere
in
theis
document,
the
agencies
are
also
soliciting
data
and
information
on
the
availability
and
effectiveness
of
other
fFederal
or
sState
programs
for
the
protection
of
aquatic
resources,
and
on
the
functions
and
values
of
wetlands
and
other
waters
that
may
be
affected
by
the
issues
discussed
in
this
ANPRM.
­
22­
VI.
Related
Federal
and
State
Authorities
The
SWANCC
decision
addresses
CWA
jurisdiction,
and
other
Federal
or
State
laws
and
programs
may
still
protect
a
water
and
related
ecosystem
even
if
that
water
is
no
longer
jurisdictional
under
the
CWA
following
SWANCC.
The
fFederal
government
remains
committed
to
wetlands
protection
through
the
Food
Security
Act's
Swampbuster
requirements
and
Federal
agricultural
program
benefits
and
restoration
through
such
Federal
programs
as
the
Wetlands
Reserve
Program
(
administered
by
the
U.
S.
Department
of
Agriculture),
grant
making
programs
such
as
Partners
in
Wildlife
(
administered
by
the
Fish
and
Wildlife
Service),
the
Coastal
Wetlands
Restoration
Program
(
administered
by
the
National
Marine
Fisheries
Service),
the
State
Grant,

Five
Star
Restoration,
and
National
Estuary
Programs
(
administered
by
EPA),
and
the
Migratory
Bird
Conservation
Commission
(
composed
of
the
Secretaries
of
Interior
and
Agriculture,
the
Administrator
of
EPA
and
Members
of
Congress).

The
SWANCC
decision
also
highlights
the
role
of
States
in
protecting
waters
not
addressed
by
Federal
law.
Prior
to
SWANCC,
fifteen
States
had
programs
that
addressed
isolated
wetlands.
Since
SWANCC,
additional
States
have
considered,
and
two
have
adopted,
legislation
to
protect
isolated
waters.
The
Federal
agencies
have
a
number
of
initiatives
to
assist
States
in
these
efforts
to
protect
wetlands.
For
example,
EPA's
Wetland
Program
Development
Grants
are
available
to
assist
States,
Tribes,
and
local
governments
for
building
their
wetland
program
capacities.
In
addition,
the
U.
S.
Department
of
Justice
and
other
Federal
agencies
are
cosponsored
a
national
wetlands
conference
with
the
National
Governors
Association
Center
for
Best
Practices,
National
Conference
of
State
Legislatures,
the
Association
of
State
Wetlands
Managers,
and
the
National
Association
of
Attorneys
General.
This
conference
and
the
dialogue
that
has
ensued
will
promote
close
collaboration
between
Federal
agencies
and
States
in
­
23­
developing,
implementing,
and
enforcing
wetlands
protection
programs.
EPA
also
is
providing
funding
to
the
National
Governors
Association
Center
for
Best
Practices
to
assist
sStates
in
developing
appropriate
policies
and
actions
to
protect
intrastate
isolated
waters.

In
light
of
this,
the
agencies
solicit
information
and
data
from
the
general
public,
the
scientific
community,
and
Federal
and
State
resource
agencies
on
the
availability
and
effectiveness
of
other
Federal
or
State
programs
for
the
protection
of
aquatic
resources
The
agencies
are
also
interested
in
data
and
comments
from
State
and
local
agencies
on
the
effect
of
no
longer
asserting
jurisdiction
over
some
of
the
waters
(
and
discharges
to
those
waters)
in
a
watershed
on
the
implementation
of
Total
Maximum
Daily
Loads
(
TMDLs)
and
attainment
of
water
quality
standards.

VII.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866
Under
Executive
Order
12866
(
58
FR
51735,
October
4,
1993),
EPA
and
the
Corps
must
determine
whether
the
regulatory
action
is
"
significant"
and
therefore
subject
to
review
by
the
Office
of
Management
and
Budget
(
OMB)
and
the
requirements
of
the
Executive
Order.
The
Order
defines
"
significant
regulatory
action"
as
one
that
is
likely
to
result
in
a
rule
that
may:

(
1)
Have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,
public
health
or
safety,
or
State,
local,
or
Tribal
governments
or
communities;

(
2)
Create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
­
24­
by
another
agency;

(
3)
Materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
Raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.

Pursuant
to
the
terms
of
Executive
Order
12866,
it
has
been
determined
that
this
Advanced
Notice
of
Proposed
Rulemaking
is
a
"
significant
regulatory
action"
in
light
of
the
provisions
of
paragraph
(
4)
above
as
it
raises
novel
legal
or
policy
issues.
As
such,
this
action
was
submitted
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
will
be
documented
in
the
public
record.

B.
National
Environmental
Policy
Act
As
required
by
the
National
Environmental
Policy
Act
(
NEPA),
the
Corps
prepares
appropriate
environmental
documentation
for
its
activities
affecting
the
quality
of
the
human
environment.
The
Corps
has
determined
that
today's
Advance
Notice
of
Proposed
Rulemaking
merely
solicits
early
comment
on
issues
associated
with
the
scope
of
waters
that
are
properly
subject
to
the
CWA,
and
information
or
data
from
the
general
public,
the
scientific
community,

and
Federal
and
State
resource
agencies
on
the
implications
of
the
SWANCC
decision
for
the
­
25­
ANPRM
on
the
Clean
Water
Act
Regulatory
Definition
of
"
Waters
of
the
United
States"

(
Page
20
of
32)

protection
of
aquatic
resources.
In
light
of
this,
the
Corps
has
determined
that
today's
ANPRM
does
not
constitute
a
major
Federal
action
significantly
affecting
the
quality
of
the
human
environment,
and
thus
does
not
require
the
preparation
of
an
Environmental
Impact
Statement
(
EIS).

Dated:
Dated:

D
R
A
F
T
D
R
A
F
T
Dated:
Dated:

_________________________
__________________________

Christine
Todd
Whitman,
George
SR.
L.
DunlopBrownlee,

Administrator,
DeputyActing
Assistant
Secretary
of
the
Army
Environmental
Protection
Agency
(
Policy
and
LegislationCivil
Works)

Department
of
the
Army
APPENDIX
A
The
following
guidance
document
will
not
appear
in
the
Code
of
Federal
Regulations.
­
26­
JOINT
MEMORANDUM
INTRODUCTION
This
document
provides
clarifying
guidance
regarding
the
Supreme
Court's
decision
in
Solid
Waste
Agency
of
Northern
Cook
County
v.
United
States
Army
Corps
of
Engineers,
531
U.
S.
159
(
2001)
("
SWANCC")
and
addresses
several
legal
issues
concerning
Clean
Water
Act
("
CWA")
jurisdiction
that
have
arisen
since
SWANCC
in
various
factual
scenarios
involving
federal
regulation
of
"
navigable
waters."
Because
the
case
law
interpreting
SWANCC
has
developed
over
the
last
two
years,
the
Agencies
are
issuing
this
updated
guidance,
which
supersedes
prior
guidance
on
this
issue.
The
Corps
and
EPA
are
also
initiating
a
rulemaking
process
to
collect
information
and
to
consider
jurisdictional
issues
as
set
forth
in
the
attached
ANPRM.
Jurisdictional
decisions
will
be
based
on
Supreme
Court
cases
including
United
States
v.
Riverside
Bayview
Homes,
474
U.
S.
121
(
1985)
and
SWANCC,
regulations,
and
applicable
case
law
in
each
jurisdiction.

BACKGROUND
In
SWANCC,
the
Supreme
Court
held
that
the
Army
Corps
of
Engineers
had
exceeded
its
authority
in
asserting
CWA
jurisdiction
pursuant
to
§
404(
a)
over
isolated,
intrastate,

nonnavigable
waters
under
33
C.
F.
R.
§
328.3(
a)(
3),
based
on
their
use
as
habitat
for
migratory
birds
pursuant
to
preamble
language
commonly
referred
to
as
the
"
Migratory
Bird
Rule,"
51
Fed.
Reg.

41217
(
1986).
"
Navigable
waters"
are
defined
in
§
502
of
the
CWA
to
mean
"
waters
of
the
United
States,
including
the
territorial
seas."
In
SWANCC,
the
Court
determined
that
the
term
­
27­
"
navigable"
had
significance
in
indicating
the
authority
Congress
intended
to
exercise
in
asserting
CWA
jurisdiction.
531
U.
S.
at
172.
After
reviewing
the
jurisdictional
scope
of
the
statutory
definition
of
"
navigable
waters"
in
§
502,
the
Court
concluded
that
neither
the
text
of
the
statute
nor
its
legislative
history
supported
the
Corps'
assertion
of
jurisdiction
over
the
waters
involved
in
SWANCC.
Id.
at
170­
171.

In
SWANCC,
the
Supreme
Court
recognized
that
"
Congress
passed
the
CWA
for
the
stated
purpose
of
`
restoring
and
maintaining
the
chemical,
physical,
and
biological
integrity
of
the
Nation's
waters'"
and
also
noted
that
"
Congress
chose
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.'"
Id.
at
166­
67
(
citing
33
U.
S.
C.
§
1251(
a)
and
(
b)).
However,
expressing
"
serious
constitutional
and
federalism
questions"
raised
by
the
Corps'
interpretation
of
the
CWA,
the
Court
stated
that
"
where
an
administrative
interpretation
of
a
statute
invokes
the
outer
limits
of
Congress'
power,
we
expect
a
clear
indication
that
Congress
intended
that
result."
Id.
at
174,

172.
Finding
"
nothing
approaching
a
clear
statement
from
Congress
that
it
intended
§
404(
a)
to
reach
an
abandoned
sand
and
gravel
pit"
(
id.
at
174),
the
Court
held
that
the
Migratory
Bird
Rule,

as
applied
to
petitioners'
property,
exceeded
the
agencies'
authority
under
§
404(
a).
Id.
at
174.

THE
SCOPE
OF
CWA
JURISDICTION
AFTER
SWANCC
Because
SWANCC
limited
use
of
33
C.
F.
R.
§
328.3(
a)(
3)
as
a
basis
of
jurisdiction
over
certain
isolated
waters,
it
has
focused
greater
attention
on
CWA
jurisdiction
generally,
and
specifically
over
tributaries
to
jurisdictional
waters
and
over
wetlands
that
are
"
adjacent
wetlands"

for
CWA
purposes.
­
28­
As
indicated,
§
502
of
the
CWA
defines
the
term
navigable
waters
to
mean
"
waters
of
the
United
States,
including
the
territorial
seas."
The
Supreme
Court
has
recognized
that
this
definition
clearly
includes
those
waters
that
are
considered
traditional
navigable
waters.
In
SWANCC,
the
Court
noted
that
while
"
the
word
`
navigable'
in
the
statute
was
of
`
limited
import'"
(
quoting
Riverside,
474
U.
S.
121
(
1985)),
"
the
term
`
navigable'
has
at
least
the
import
of
showing
us
what
Congress
had
in
mind
as
its
authority
for
enacting
the
CWA:
its
traditional
jurisdiction
over
waters
that
were
or
had
been
navigable
in
fact
or
which
could
reasonably
be
so
made."
531
U.
S.
at
172.
In
addition,
the
Court
reiterated
in
SWANCC
that
Congress
evidenced
its
intent
to
regulate
"
at
least
some
waters
that
would
not
be
deemed
'
navigable'
under
the
classical
understanding
of
that
term."
SWANCC
at
171
(
quoting
Riverside,
474
U.
S.
at
133).

Relying
on
that
intent,
for
many
years,
EPA
and
the
Corps
have
interpreted
their
regulations
to
assert
CWA
jurisdiction
over
non­
navigable
tributaries
of
navigable
waters
and
their
adjacent
wetlands.
Courts
have
upheld
the
view
that
traditional
navigable
waters
and,
generally
speaking,

their
tributary
systems
(
and
their
adjacent
wetlands)
remain
subject
to
CWA
jurisdiction.

Several
federal
district
and
appellate
courts
have
addressed
the
effect
of
SWANCC
on
CWA
jurisdiction,
and
the
case
law
on
the
precise
scope
of
federal
CWA
jurisdiction
in
light
of
SWANCC
is
still
developing.
While
a
majority
of
cases
hold
that
SWANCC
applies
only
to
waters
that
are
isolated,
intrastate
and
non­
navigable,
several
courts
have
interpreted
SWANCC's
reasoning
to
apply
to
waters
other
than
the
isolated
waters
at
issue
in
that
case.
This
memorandum
attempts
to
add
greater
clarity
concerning
federal
CWA
jurisdiction
following
SWANCC
by
identifying
specific
categories
of
waters,
explaining
which
categories
of
waters
are
jurisdictional
or
non­
jurisdictional,
and
pointing
out
where
more
refined
factual
and
legal
analysis
will
be
required
to
make
a
jurisdictional
determination.
1
The
CWA
provisions
and
regulations
described
in
this
document
contain
legally
binding
requirements.
This
document
does
not
substitute
for
those
provisions
or
regulations,
nor
is
it
a
regulation
itself.
It
does
not
impose
legally
binding
requirements
on
EPA,
the
Corps,
or
the
regulated
community,
and
may
not
apply
to
a
particular
situation
depending
on
the
circumstances.

Any
decisions
regarding
a
particular
water
will
be
based
on
the
applicable
statutes,
regulations,

and
case
law.
Therefore,
interested
persons
are
free
to
raise
questions
and
objections
about
the
appropriateness
of
the
application
of
this
guidance
to
a
particular
situation,
and
EPA
and/
or
the
Corps
will
consider
whether
or
not
the
recommendations
or
interpretations
of
this
guidance
are
appropriate
in
that
situation
based
on
the
law
and
regulations.

­
29­
Although
the
SWANCC
case
itself
specifically
involved
Section
404
of
the
CWA,
the
Court's
decision
may
affect
the
scope
of
regulatory
jurisdiction
under
other
provisions
of
the
CWA
as
well,
including
the
Section
402
NPDES
program,
the
Section
311
oil
spill
program,

water
quality
standards
under
Section
303,
and
Section
401
water
quality
certification.
Under
each
of
these
sections,
the
relevant
agencies
have
jurisdiction
over
"
waters
of
the
United
States."

CWA
§
502(
7).

This
memorandum
does
not
discuss
the
exact
factual
predicates
that
are
necessary
to
establish
jurisdiction
in
individual
cases.
We
recognize
that
the
field
staff
and
the
public
could
benefit
from
additional
guidance
on
how
to
apply
the
applicable
legal
principles
to
individual
cases.
1
Should
questions
arise
concerning
CWA
jurisdiction,
the
regulated
community
should
seek
assistance
from
the
Corps
and
EPA.

A.
Isolated,
Intrastate
Waters
that
are
Non­
navigable
­
30­
SWANCC
squarely
eliminates
CWA
jurisdiction
over
isolated
waters
that
are
intrastate
and
non­
navigable,
where
the
sole
basis
for
asserting
CWA
jurisdiction
is
the
actual
or
potential
use
of
the
waters
as
habitat
for
migratory
birds
that
cross
state
lines
in
their
migrations.
531
U.
S.

at
174
("
We
hold
that
33
C.
F.
R.
§
328.3(
a)(
3)
(
1999),
as
clarified
and
applied
to
petitioner's
balefill
site
pursuant
to
the
`
Migratory
Bird
Rule,'
51
Fed.
Reg.
41217
(
1986),
exceeds
the
authority
granted
to
respondents
under
§
404(
a)
of
the
CWA.").
The
EPA
and
the
Corps
are
now
precluded
from
asserting
CWA
jurisdiction
in
such
situations,
including
over
waters
such
as
isolated,
non­
navigable,
intrastate
vernal
pools,
playa
lakes
and
pocosins.
SWANCC
also
calls
into
question
whether
CWA
jurisdiction
over
isolated,
intrastate,
non­
navigable
waters
could
now
be
predicated
on
the
other
factors
listed
in
the
Migratory
Bird
Rule,
51
Fed.
Reg.
41217
(
i.
e.,
use
of
the
water
as
habitat
for
birds
protected
by
Migratory
Bird
Treaties;
use
of
the
water
as
habitat
for
Federally
protected
endangered
or
threatened
species;
or
use
of
the
water
to
irrigate
crops
sold
in
interstate
commerce).

By
the
same
token,
in
light
of
SWANCC,
it
is
uncertain
whether
there
remains
any
basis
for
jurisdiction
under
the
other
rationales
of
§
328.3(
a)(
3)(
i)­(
iii)
over
isolated,
non­
navigable,

intrastate
waters
(
i.
e.,
use
of
the
water
by
interstate
or
foreign
travelers
for
recreational
or
other
purposes;
the
presence
of
fish
or
shellfish
that
could
be
taken
and
sold
in
interstate
commerce;
use
of
the
water
for
industrial
purposes
by
industries
in
interstate
commerce).
Furthermore,
within
the
states
comprising
the
Fourth
Circuit,
CWA
jurisdiction
under
33
C.
F.
R.
§
328.3(
a)(
3)
in
its
entirety
has
been
precluded
since
1997
by
the
Fourth
Circuit's
ruling
in
United
States
v.
Wilson,

133
F.
3d
251,
257
(
4th
Cir.
1997)
(
invalidating
33
C.
F.
R.
§
328.3(
a)(
3)).

In
view
of
SWANCC,
neither
agency
will
assert
CWA
jurisdiction
over
isolated
waters
that
are
both
intrastate
and
non­
navigable,
where
the
sole
basis
available
for
asserting
CWA
2
These
traditional
navigable
waters
are
not
limited
to
those
regulated
under
Section
10
of
the
Rivers
and
Harbors
Act
of
1899;
traditional
navigable
waters
include
waters
which,
although
used,
susceptible
to
use,
or
historically
used,
to
transport
goods
or
people
in
commerce,
do
not
form
part
of
a
continuous
waterborne
highway.

­
31­
jurisdiction
rests
on
any
of
the
factors
listed
in
the
"
Migratory
Bird
Rule."
In
addition,
in
view
of
the
uncertainties
after
SWANCC
concerning
jurisdiction
over
isolated
waters
that
are
both
intrastate
and
non­
navigable
based
on
other
grounds
listed
in
33
C.
F.
R.
§
328.3(
a)(
3)(
i)­(
iii),
field
staff
should
seek
formal
project­
specific
Headquarters
approval
prior
to
asserting
jurisdiction
over
such
waters,
including
permitting
and
enforcement
actions.

B.
Traditional
Navigable
Waters
As
noted,
traditional
navigable
waters
are
jurisdictional.
Traditional
navigable
waters
are
waters
that
are
subject
to
the
ebb
and
flow
of
the
tide,
or
waters
that
are
presently
used,
or
have
been
used
in
the
past,
or
may
be
susceptible
for
use
to
transport
interstate
or
foreign
commerce.

33
C.
F.
R.
§
328.3(
a)(
1);
United
States
v.
Appalachian
Elec.
Power
Co.,
311
U.
S.
377,
407­
408
(
1940)
(
water
considered
navigable,
although
not
navigable
at
present
but
could
be
made
navigable
with
reasonable
improvements);
Economy
Light
&
Power
Co.
v.
United
States,
256
U.
S.
113
(
1911)
(
dams
and
other
structures
do
not
eliminate
navigability);
SWANCC,
531
U.
S.
at
172
(
referring
to
traditional
jurisdiction
over
waters
that
were
or
had
been
navigable
in
fact
or
which
could
reasonably
be
so
made).
2
In
accord
with
the
analysis
in
SWANCC,
waters
that
fall
within
the
definition
of
traditional
navigable
waters
remain
jurisdictional
under
the
CWA.
Thus,
isolated,
intrastate
waters
that
are
­
32­
capable
of
supporting
navigation
by
watercraft
remain
subject
to
CWA
jurisdiction
after
SWANCC
if
they
are
traditional
navigable
waters,
i.
e.,
if
they
meet
any
of
the
tests
for
being
navigable­
in­
fact.
See,
e.
g.,
Colvin
v.
United
States
181
F.
Supp.
2d
1050
(
C.
D.
Cal.
2001)

(
isolated
man­
made
water
body
capable
of
boating
found
to
be
"
water
of
the
United
States").

C.
Adjacent
Wetlands
(
1)
Wetlands
Adjacent
to
Traditional
Navigable
Waters
CWA
jurisdiction
also
extends
to
wetlands
that
are
adjacent
to
traditional
navigable
waters.
The
Supreme
Court
did
not
disturb
its
earlier
holding
in
Riverside
when
it
rendered
its
decision
in
SWANCC.
Riverside
dealt
with
a
wetland
adjacent
to
Black
Creek,
a
traditional
navigable
water.
474
U.
S.
121
(
1985);
see
also
SWANCC,
531
U.
S.
at
167
("[
i]
n
Riverside,
we
held
that
the
Corps
had
§
404(
a)
jurisdiction
over
wetlands
that
actually
abutted
on
a
navigable
waterway").
The
Court
in
Riverside
found
that
"
Congress'
concern
for
the
protection
of
water
quality
and
aquatic
ecosystems
indicated
its
intent
to
regulate
wetlands
`
inseparably
bound
up
with'"
jurisdictional
waters.
474
U.
S.
at
134.
Thus,
wetlands
adjacent
to
traditional
navigable
waters
clearly
remain
jurisdictional
after
SWANCC.
The
Corps
and
EPA
currently
define
"
adjacent"
as
"
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.'"
33
C.
F.
R.
§
328.3(
b);
40
C.
F.
R.
§
230.3(
b).
The
Supreme
Court
has
not
itself
defined
the
term
"
adjacent,"
nor
stated
whether
the
basis
for
adjacency
is
geographic
proximity
or
hydrology.

(
2)
Wetlands
Adjacent
to
Non­
Navigable
Waters
­
33­
The
reasoning
in
Riverside,
as
followed
by
a
number
of
post­
SWANCC
courts,
supports
jurisdiction
over
wetlands
adjacent
to
non­
navigable
waters
that
are
tributaries
to
navigable
waters.
Since
SWANCC,
some
courts
have
expressed
the
view
that
SWANCC
raised
questions
about
adjacency
jurisdiction,
so
that
wetlands
are
jurisdictional
only
if
they
are
adjacent
to
navigable
waters.
See,
e.
g.,
Rice
v.
Harken,
discussed
infra.

D.
Tributaries
A
number
of
court
decisions
have
held
that
SWANCC
does
not
change
the
principle
that
CWA
jurisdiction
extends
to
tributaries
of
navigable
waters.
See,
e.
g.,
Headwaters
v.
Talent
Irrigation
Dist.,
243
F.
3d
526,
534
(
9th
Cir.
2001)
("
Even
tributaries
that
flow
intermittently
are
`
waters
of
the
United
States'");
United
States
v.
Interstate
Gen.
Co,
No.
01­
4513,
slip
op.
at
7,

2002
WL
1421411
(
4th
Cir.
July
2,
2002),
aff'ing
152
F.
Supp.
2d
843
(
D.
Md.
2001)
(
refusing
to
grant
writ
of
coram
nobis;
rejecting
argument
that
SWANCC
eliminated
jurisdiction
over
wetlands
adjacent
to
non­
navigable
tributaries);
United
States
v.
Krilich,
393F.
3d
784
(
7th
Cir.

2002)
(
rejecting
motion
to
vacate
consent
decree,
finding
that
SWANCC
did
not
alter
regulations
interpreting
"
waters
of
the
U.
S."
other
than
33
C.
F.
R.
§
328.3(
a)(
3));
Community
Ass.
for
Restoration
of
the
Env't
v.
Henry
Bosma
Dairy,
305
F.
3d
953
(
9th
Cir.
2002)
(
drain
that
flowed
into
a
canal
that
flows
into
a
river
is
jurisdictional);
Idaho
Rural
Council
v.
Bosma,
143
F.
Supp.

2d
1169,
1178
(
D.
Idaho
200l)
("
waters
of
the
United
States
include
waters
that
are
tributary
to
navigable
waters");
Aiello
v.
Town
of
Brookhaven,
136
F.
Supp.
2d
81,
118
(
E.
D.
N.
Y.
2001)

(
non­
navigable
pond
and
creek
determined
to
be
tributaries
of
navigable
waters,
and
therefore
"
waters
of
the
United
States
under
the
CWA").
Jurisdiction
has
been
recognized
even
when
the
tributaries
in
question
flow
for
a
significant
distance
before
reaching
a
navigable
water
or
are
­
34­
several
times
removed
from
the
navigable
waters
(
i.
e.,
"
tributaries
of
tributaries").
See,
e.
g.,

United
States
v.
Lamplight
Equestrian
Ctr.,
No.
00
C
6486,
2002
WL
360652,
at
*
8
(
ND.
Ill.

Mar.
8,
2002)
("
Even
where
the
distance
from
the
tributary
to
the
navigable
water
is
significant,

the
quality
of
the
tributary
is
still
vital
to
the
quality
of
navigable
waters");
United
States
v.

Buday,
138
F.
Supp.
2d
1282,
1291­
92
(
D.
Mont.
2001)
("
water
quality
of
tributaries.
.
.
distant
though
the
tributaries
may
be
from
navigable
streams,
is
vital
to
the
quality
of
navigable
waters");

United
States
v.
Rueth
Dev.
Co.,
No.
2:
96CV540,
2001
WL
17580078
(
N.
D.
Ind.
Sept.
26,

2001)
(
refusing
to
reopen
a
consent
decree
in
a
CWA
case
and
determining
that
jurisdiction
remained
over
wetlands
adjacent
to
a
non­
navigable
(
man­
made)
waterway
that
flows
into
a
navigable
water).

Some
courts
have
interpreted
the
reasoning
in
SWANCC
to
potentially
circumscribe
CWA
jurisdiction
over
tributaries
by
finding
CWA
jurisdiction
attaches
only
where
navigable
waters
and
waters
immediately
adjacent
to
navigable
waters
are
involved.
Rice
v.
Harken
is
the
leading
case
taking
the
narrowest
view
of
CWA
jurisdiction
after
SWANCC.
250
F.
3d
264
(
5th
Cir.
2001)
(
rehearing
denied).
Harken
interpreted
the
scope
of
"
navigable
waters"
under
the
Oil
Pollution
Act
(
OPA).
The
Fifth
Circuit
relied
on
SWANCC
to
conclude
"
it
appears
that
a
body
of
water
is
subject
to
regulation
under
the
CWA
if
the
body
of
water
is
actually
navigable
or
is
adjacent
to
an
open
body
of
navigable
water."
250
F.
3d
at
269.
The
analysis
in
Harken
implies
that
the
Fifth
Circuit
might
limit
CWA
jurisdiction
to
only
those
tributaries
that
are
traditionally
navigable
or
immediately
adjacent
to
a
navigable
water.

A
few
post­
SWANCC
district
court
opinions
have
relied
on
Harken
or
reasoning
similar
to
that
employed
by
the
Harken
court
to
limit
jurisdiction.
See,
e.
g.,
United
States
v.
Rapanos,

190
F.
Supp.
2d
1011(
E.
D.
Mich.
2002)
(
government
appeal
pending)
("
the
Court
finds
as
a
­
35­
matter
of
law
that
the
wetlands
on
Defendant's
property
were
not
directly
adjacent
to
navigable
waters,
and
therefore,
the
government
cannot
regulate
Defendant's
property.");
United
States
v.

Needham,
No.
6:
01­
CV­
01897,
2002
WL
1162790
(
W.
D.
La.
Jan.
23,
2002)
(
government
appeal
pending)
(
district
court
affirmed
finding
of
no
liability
by
bankruptcy
court
for
debtors
under
OPA
for
discharge
of
oil
since
drainage
ditch
into
which
oil
was
discharged
was
found
to
be
neither
a
navigable
water
nor
adjacent
to
an
open
body
of
navigable
water).
See
also
United
States
v.
Newdunn,
195
F.
Supp.
2d
751
(
E.
D.
Va.
2002)
(
government
appeal
pending)

(
wetlands
and
tributaries
not
contiguous
or
adjacent
to
navigable
waters
are
outside
CWA
jurisdiction);
United
States
v.
RGM
Corp.,
222
F.
Supp.
2d
780
(
E.
D.
Va.
2002)
(
government
appeal
pending)
(
wetlands
on
property
not
contiguous
to
navigable
river
and,
thus,
jurisdiction
not
established
based
upon
adjacency
to
navigable
water).

Another
question
that
has
arisen
is
whether
CWA
jurisdiction
is
affected
when
a
surface
tributary
to
jurisdictional
waters
flows
for
some
of
its
length
through
ditches,
culverts,
pipes,

storm
sewers,
or
similar
manmade
conveyances.
A
number
of
courts
have
held
that
waters
with
manmade
features
are
jurisdictional.
For
example,
in
Headwaters
Inc.
v.
Talent
Irrigation
District,

the
Ninth
Circuit
held
that
manmade
irrigation
canals
that
diverted
water
from
one
set
of
natural
streams
and
lakes
to
other
streams
and
creeks
were
connected
as
tributaries
to
waters
of
the
United
States,
and
consequently
fell
within
the
purview
of
CWA
jurisdiction.
243
F.
3d
at
533­
34.

However,
some
courts
have
taken
a
different
view
of
the
circumstances
under
which
man­
made
conveyances
satisfy
the
requirements
for
CWA
jurisdiction.
See,
e.
g.,
Newdunn,
195
F.
Supp.
2d
at
765
(
government
appeal
pending)
(
court
determined
that
Corps
had
failed
to
carry
its
burden
of
establishing
CWA
jurisdiction
over
wetlands
from
which
surface
water
had
to
pass
through
a
spur
ditch,
a
series
of
man­
made
ditches
and
culverts
as
well
as
non­
navigable
portions
of
a
creek
before
finally
reaching
navigable
waters).
­
36­
A
number
of
courts
have
held
that
waters
connected
to
traditional
navigable
waters
only
intermittently
or
ephemerally
are
subject
to
CWA
jurisdiction.
The
language
and
reasoning
in
the
Ninth
Circuit's
decision
in
Headwaters
Inc.
v.
Talent
Irrigation
District
indicates
that
the
intermittent
flow
of
waters
does
not
affect
CWA
jurisdiction.
243
F.
3d
at
534
("
Even
tributaries
that
flow
intermittently
are
`
waters
of
the
United
States.'").
Other
cases,
however,
have
suggested
that
SWANCC
eliminated
from
CWA
jurisdiction
some
waters
that
flow
only
intermittently.
See,
e.
g.,
Newdunn,
195
F.
Supp.
2d
at
764,
767­
68
(
government
appeal
pending)

(
ditches
and
culverts
with
intermittent
flow
not
jurisdictional).

A
factor
in
determining
jurisdiction
over
waters
with
intermittent
flows
is
the
presence
or
absence
of
an
ordinary
high
water
mark
(
OHWM).
Corps
regulations
provide
that,
in
the
absence
of
adjacent
wetlands,
the
lateral
limits
of
non­
tidal
waters
extend
to
the
OHWM
(
33
C.
F.
R.
§
328.4(
c)(
1)).
One
court
has
interpreted
this
regulation
to
require
the
presence
of
a
continuous
OHWM.
United
States
v.
RGM,
222
F.
Supp.
2d
780
(
E.
D.
Va.
2002)
(
government
appeal
pending).

CONCLUSION
In
light
of
SWANCC,
field
staff
should
not
assert
CWA
jurisdiction
over
isolated
waters
that
are
both
intrastate
and
non­
navigable,
where
the
sole
basis
available
for
asserting
CWA
jurisdiction
rests
on
any
of
the
factors
listed
in
the
"
Migratory
Bird
Rule."
In
addition,
field
staff
should
seek
formal
project­
specific
HQ
approval
prior
to
asserting
jurisdiction
over
waters
based
on
other
factors
listed
in
33
C.
F.
R.
§
328.3(
a)(
3)(
i)­(
iii).

Field
staff
should
continue
to
assert
jurisdiction
over
traditional
navigable
waters
(
and
­
37­
adjacent
wetlands)
and,
generally
speaking,
their
tributary
systems
(
and
adjacent
wetlands).
Field
staff
should
make
jurisdictional
and
permitting
decisions
on
a
case­
by­
case
basis
considering
this
guidance,
applicable
regulations,
and
any
additional
relevant
court
decisions.
Where
questions
remain,
the
regulated
community
should
seek
assistance
from
the
agencies
on
questions
of
jurisdiction.

_____________________________
_____________________________

Robert
E.
Fabricant
Steven
J.
Morello
General
Counsel,
General
Counsel,

Environmental
Protection
Agency
Department
of
the
Army
