EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act, 24479-24480 [2011-10565]

Download as PDF Federal Register / Vol. 76, No. 84 / Monday, May 2, 2011 / Notices Estimated Total Annual Cost: $1,356,320, includes $20 in annualized capital or O&M costs. Changes in the Estimates: There is a decrease of 1,667 hours in the total estimated burden currently identified in the OMB Inventory of Approved ICR Burdens. This decrease reflects EPA’s updating of burden estimates. The decrease is due to an increase in computer-generated product transfer documents. Dated: April 25, 2011. John Moses, Director, Collection Strategies Division. [FR Doc. 2011–10425 Filed 4–29–11; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY [FRL–9300–9] In the Matter of the Taylor Lumber and Treating Superfund Site, Sheridan, Oregon, Amendment to Agreement and Covenant Not To Sue, Pacific Wood Preserving of Oregon Environmental Protection Agency (EPA). ACTION: Notice; request for public comment. AGENCY: This Amendment to Agreement and Covenant Not to Sue (‘‘Amendment’’) amends the 2002 Agreement and Covenant Not To Sue, Docket CERCLA–10–2002–0034 (‘‘Original Agreement’’), entered into by and between the United States on behalf of the U.S. Environmental Protection Agency (‘‘EPA’’) and Pacific Wood Preserving of Oregon (‘‘PWPO’’). In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601 et seq. (‘‘CERCLA’’), notice is hereby given of the proposed Agreement between the EPA and PWPO, subject to the final review and approval of the EPA and the U.S. Department of Justice. The 2002 Original Agreement with PWPO provided a covenant not to sue for response costs at the Taylor Lumber and Treating Site, which PWPO was acquiring, in exchange for several obligations related to site operation and a commitment not to use certain hazardous products, including pentachlorophenol, at the Site. This Amendment removes the restriction on pentachlorophenol use and extends PWPO’s commitment to collect and treat groundwater and maintain the asphalt cap until January 31, 2022, or for as long as PWPO owns or operates on the mstockstill on DSKH9S0YB1PROD with NOTICES6 SUMMARY: VerDate Mar<15>2010 17:48 Apr 29, 2011 Jkt 223001 Property, whichever is later. This Amendment includes additional commitments including submittal of annual environmental audit reports; implementation of institutional controls; payment of EPA future oversight costs; and, a revised Statement of Work for future work to be performed by PWPO. DATES: Comments must be received on or before May 16, 2011. ADDRESSES: The proposed settlement is available for public inspection at the U.S. EPA Region 10 office, located at 1200 Sixth Avenue, Seattle, Washington 98101. A copy of the proposed settlement may be obtained from Sharon Eng, Paralegal, U.S. EPA Region 10, Mail Stop ORC–158, 1200 Sixth Avenue, Suite 900, Seattle, Washington 98101; 206–553–0705. Comments should reference the Taylor Lumber and Treating Superfund Site in Sheridan, Oregon, EPA Docket No. CERCLA–10– 2002–0034 and should be addressed to Jennifer Byrne, Assistant Regional Counsel, U.S. EPA Region 10, Mail Stop ORC–158, 1200 Sixth Avenue, Suite 900, Seattle, Washington 98101. FOR FURTHER INFORMATION CONTACT: Jennifer Byrne, Office of Regional Counsel, Mail Stop: ORC–158, Environmental Protection Agency, 1200 Sixth Avenue, Suite 900, Seattle, WA, 98101; telephone number: 206–553– 0050; fax number: 206–553–0163; email address: byrne.jennifer@epa.gov. Dated: April 25, 2011. Daniel D. Opalski, Director, Office of Environmental Cleanup. [FR Doc. 2011–10567 Filed 4–29–11; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY DEPARTMENT OF DEFENSE Deaprtment of the Army, Corps of Engineers [EPA–HQ–OW–2011–0409; FRL–9300–6] EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act Environmental Protection Agency (EPA); and U.S. Army Corps of Engineers, Department of the Army, Department of Defense. ACTION: Notice of availability and request for comments. AGENCY: The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) are publishing SUMMARY: PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 24479 for public comment proposed guidance that describes how the agencies will identify waters protected by the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act or CWA or Act) and implement the Supreme Court’s decisions on this topic (i.e., Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) (531 U.S. 159 (2001)) and Rapanos v. United States (547 U.S. 715 (2006)) (Rapanos)). The agencies believe that under this proposed guidance the number of waters identified as protected by the Clean Water Act will increase compared to current practice and this improvement will aid in protecting the Nation’s public health and aquatic resources. The proposed guidance is consistent with the principles established by the Supreme Court cases and is supported by the agencies’ scientific understanding of how waterbodies and watersheds function. In addition, the agencies believe that when the revised guidance is finalized and goes into effect, it will improve CWA program predictability and clarity regarding the scope of ‘‘waters of the United States’’ protected under the Act and that this improvement will have benefits for both the government and regulated parties. When finalized, this guidance would supersede previously issued guidance on this matter. This guidance will apply to all CWA programs, including section 303 water quality standards, section 311 oil spill prevention and response, section 401 water quality certification, section 402 National Pollutant Discharge Elimination System permits, and section 404 permits for discharges of dredged or fill material. The agencies seek public comment on all aspects of the proposed guidance, including interpretations and scientific underpinnings. In addition to this guidance, the agencies expect to propose revisions of existing regulations to further clarify which waters are subject to CWA jurisdiction, consistent with the Supreme Court’s decisions. Public comment on any such revisions will be requested at the time they are proposed. Comments must be received on or before July 1, 2011. DATES: Submit your comments, identified by Docket ID No. EPA–HQ– OW–2011–0409 by one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. ADDRESSES: E:\FR\FM\02MYN1.SGM 02MYN1 mstockstill on DSKH9S0YB1PROD with NOTICES6 24480 Federal Register / Vol. 76, No. 84 / Monday, May 2, 2011 / Notices • E-mail: owdocket@epa.gov. Include EPA–HQ–OW–2011–0409 in the subject line of the message. • Mail: Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention: Docket ID No. EPA–HQ–OW–2011– 0409. • Hand Delivery/Courier: Deliver your comments to EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20460, Attention Docket ID No. EPA–HQ–OW–2011–0409. Such deliveries are accepted only during the Docket’s normal hours of operation, which are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. Special arrangements should be made for deliveries of boxed information. The telephone number for the Water Docket is 202–566–2426. Instructions: Direct your comments to Docket ID No. EPA–HQ–OW–2011– 0409. EPA’s policy is that all comments received will be included in the public docket without change and may be made available on-line at https:// www.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through https:// www.regulations.gov or e-mail. The https://www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail directly to EPA without going through https:// www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA might not be able to consider your comment. Avoid the use of special characters and any form of encryption, and ensure that electronic files are free of any defects or viruses. For additional information about EPA’s public docket, visit the EPA Docket Center homepage at https:// www.epa.gov/epahome/dockets.htm. VerDate Mar<15>2010 17:48 Apr 29, 2011 Jkt 223001 Docket: All documents in the docket are listed in the https:// www.regulations.gov index. Some information, however, is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is publicly available only in hard copy. Publicly available docket materials are available electronically at https:// www.regulations.gov or in hard copy at the Water Docket, EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is 202–566–1744, and the telephone number for the Water Docket is 202–566–2426. FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing, Office of Water (4502–T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington DC 20460; telephone number 202–566–1783; e-mail address: CWAwaters@epa.gov. Mr. David Olson, Regulatory Community of Practice (CECW–CO–R), U.S. Army Corps of Engineers, 441 G Street, NW., Washington, DC 20314; telephone number 202–761–4922; email address: david.b.olson@usace.army.mil. SUPPLEMENTARY INFORMATION: EPA and the Corps are seeking public comment on proposed joint agency guidance regarding identification of waters protected by the Clean Water Act. The agencies intention is that the final joint guidance will supersede the ‘‘Joint Memorandum’’ providing clarifying guidance on SWANCC, dated Jan. 15, 2003 (68 FR 1991, 1995), and ‘‘Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States,’’ dated December 2, 2008, and available at https://water.epa.gov/ lawsregs/guidance/wetlands/ CWAwaters.cfm. Until that final guidance is issued, both the 2003 and 2008 CWA jurisdiction guidance remain in effect. Congress enacted the Clean Water Act (CWA) ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters’’ (33 U.S.C. 1251(a)). One of the mechanisms adopted by Congress to achieve that purpose is a prohibition on the discharge of any pollutants into ‘‘navigable waters’’ except in compliance with other specified sections of the CWA (33 U.S.C. 1311(a) and 1362(12)(A)). In most cases, this means compliance with a permit issued PO 00000 Frm 00024 Fmt 4703 Sfmt 9990 pursuant to CWA section 402 (33 U.S.C. 1342) or section 404 (33 U.S.C. 1344). The CWA provides that ‘‘[t]he term ‘navigable waters’ means the waters of the United States, including the territorial seas’’ (33 U.S.C. 1362(7)). EPA and the Corps have further defined the term ‘‘waters of the United States’’ in regulations (40 CFR 230.3(s) and 33 CFR 328.3(a); 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). The U.S. Supreme Court has addressed the scope of waters of the United States protected by the CWA in three cases, two of which are specifically addressed by the draft guidance. In SWANCC, the Court addressed the question of CWA jurisdiction over isolated ponds, and concluded that CWA jurisdiction could not be based solely on the presence of migratory birds. In Rapanos, the Court addressed CWA protections for wetlands adjacent to tributaries, and issued five opinions with no single opinion commanding a majority of the Court. Neither SWANCC nor the opinions in Rapanos invalidated any of the regulatory provisions defining ‘‘waters of the United States.’’ The Court also addressed the question of CWA jurisdiction in an earlier case, Riverside Bayview Homes. While not specifically addressed in the current guidance, this case informed the Court’s decisions in the latter two cases. The agencies believe it is advisable to replace existing guidance documents interpreting SWANCC and Rapanos in order to implement the CWA in a manner that is consistent with those opinions, reflects the best available science, and recognizes recent field implementation experience. By reflecting such developments, the proposed guidance made available today for public comment is expected, once it is finalized after considering all comments received, to provide clearer direction to field staff in implementing the Court decisions and reduce uncertainty in the regulated community. EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act Dated: April 25, 2011. Nancy K. Stoner, Acting Assistant Administrator for Water Environmental Protection Agency. Dated: April 26, 2011. Jo Ellen Darcy, Assistant Secretary of the Army (Civil Works), Department of the Army. [FR Doc. 2011–10565 Filed 4–29–11; 8:45 am] BILLING CODE 6560–50–P E:\FR\FM\02MYN1.SGM 02MYN1

Agencies

[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Notices]
[Pages 24479-24480]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10565]


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ENVIRONMENTAL PROTECTION AGENCY

DEPARTMENT OF DEFENSE

Deaprtment of the Army, Corps of Engineers

[EPA-HQ-OW-2011-0409; FRL-9300-6]


EPA and Army Corps of Engineers Guidance Regarding Identification 
of Waters Protected by the Clean Water Act

AGENCY: Environmental Protection Agency (EPA); and U.S. Army Corps of 
Engineers, Department of the Army, Department of Defense.

ACTION: Notice of availability and request for comments.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) and the U.S. Army 
Corps of Engineers (the Corps) are publishing for public comment 
proposed guidance that describes how the agencies will identify waters 
protected by the Federal Water Pollution Control Act Amendments of 1972 
(Clean Water Act or CWA or Act) and implement the Supreme Court's 
decisions on this topic (i.e., Solid Waste Agency of Northern Cook 
County v. U.S. Army Corps of Engineers (SWANCC) (531 U.S. 159 (2001)) 
and Rapanos v. United States (547 U.S. 715 (2006)) (Rapanos)). The 
agencies believe that under this proposed guidance the number of waters 
identified as protected by the Clean Water Act will increase compared 
to current practice and this improvement will aid in protecting the 
Nation's public health and aquatic resources.
    The proposed guidance is consistent with the principles established 
by the Supreme Court cases and is supported by the agencies' scientific 
understanding of how waterbodies and watersheds function.
    In addition, the agencies believe that when the revised guidance is 
finalized and goes into effect, it will improve CWA program 
predictability and clarity regarding the scope of ``waters of the 
United States'' protected under the Act and that this improvement will 
have benefits for both the government and regulated parties. When 
finalized, this guidance would supersede previously issued guidance on 
this matter. This guidance will apply to all CWA programs, including 
section 303 water quality standards, section 311 oil spill prevention 
and response, section 401 water quality certification, section 402 
National Pollutant Discharge Elimination System permits, and section 
404 permits for discharges of dredged or fill material. The agencies 
seek public comment on all aspects of the proposed guidance, including 
interpretations and scientific underpinnings.
    In addition to this guidance, the agencies expect to propose 
revisions of existing regulations to further clarify which waters are 
subject to CWA jurisdiction, consistent with the Supreme Court's 
decisions. Public comment on any such revisions will be requested at 
the time they are proposed.

DATES: Comments must be received on or before July 1, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2011-0409 by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.

[[Page 24480]]

     E-mail: owdocket@epa.gov. Include EPA-HQ-OW-2011-0409 in 
the subject line of the message.
     Mail: Send the original and three copies of your comments 
to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention: Docket 
ID No. EPA-HQ-OW-2011-0409.
     Hand Delivery/Courier: Deliver your comments to EPA Docket 
Center, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, 
DC 20460, Attention Docket ID No. EPA-HQ-OW-2011-0409. Such deliveries 
are accepted only during the Docket's normal hours of operation, which 
are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. Special arrangements should be made for deliveries of boxed 
information. The telephone number for the Water Docket is 202-566-2426.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2011-
0409. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available on-line at 
https://www.regulations.gov,including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI, or otherwise protected, through https://www.regulations.gov or 
e-mail. The https://www.regulations.gov Web site is an ``anonymous 
access'' system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail directly to EPA without going through https://www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA might not be able to 
consider your comment. Avoid the use of special characters and any form 
of encryption, and ensure that electronic files are free of any defects 
or viruses. For additional information about EPA's public docket, visit 
the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Some information, however, is not publicly 
available, e.g., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is publicly available only in hard copy. Publicly available 
docket materials are available electronically at https://www.regulations.gov or in hard copy at the Water Docket, EPA Docket 
Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is 202-566-1744, and the telephone number for the 
Water Docket is 202-566-2426.

FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing, Office of Water 
(4502-T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington DC 20460; telephone number 202-566-1783; e-mail address: 
CWAwaters@epa.gov. Mr. David Olson, Regulatory Community of Practice 
(CECW-CO-R), U.S. Army Corps of Engineers, 441 G Street, NW., 
Washington, DC 20314; telephone number 202-761-4922; email address: 
david.b.olson@usace.army.mil.

SUPPLEMENTARY INFORMATION: EPA and the Corps are seeking public comment 
on proposed joint agency guidance regarding identification of waters 
protected by the Clean Water Act. The agencies intention is that the 
final joint guidance will supersede the ``Joint Memorandum'' providing 
clarifying guidance on SWANCC, dated Jan. 15, 2003 (68 FR 1991, 1995), 
and ``Clean Water Act Jurisdiction Following the U.S. Supreme Court's 
Decision in Rapanos v. United States & Carabell v. United States,'' 
dated December 2, 2008, and available at https://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm. Until that final guidance is issued, 
both the 2003 and 2008 CWA jurisdiction guidance remain in effect.
    Congress enacted the Clean Water Act (CWA) ``to restore and 
maintain the chemical, physical, and biological integrity of the 
Nation's waters'' (33 U.S.C. 1251(a)). One of the mechanisms adopted by 
Congress to achieve that purpose is a prohibition on the discharge of 
any pollutants into ``navigable waters'' except in compliance with 
other specified sections of the CWA (33 U.S.C. 1311(a) and 
1362(12)(A)). In most cases, this means compliance with a permit issued 
pursuant to CWA section 402 (33 U.S.C. 1342) or section 404 (33 U.S.C. 
1344). The CWA provides that ``[t]he term `navigable waters' means the 
waters of the United States, including the territorial seas'' (33 
U.S.C. 1362(7)). EPA and the Corps have further defined the term 
``waters of the United States'' in regulations (40 CFR 230.3(s) and 33 
CFR 328.3(a); 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).
    The U.S. Supreme Court has addressed the scope of waters of the 
United States protected by the CWA in three cases, two of which are 
specifically addressed by the draft guidance. In SWANCC, the Court 
addressed the question of CWA jurisdiction over isolated ponds, and 
concluded that CWA jurisdiction could not be based solely on the 
presence of migratory birds. In Rapanos, the Court addressed CWA 
protections for wetlands adjacent to tributaries, and issued five 
opinions with no single opinion commanding a majority of the Court. 
Neither SWANCC nor the opinions in Rapanos invalidated any of the 
regulatory provisions defining ``waters of the United States.'' The 
Court also addressed the question of CWA jurisdiction in an earlier 
case, Riverside Bayview Homes. While not specifically addressed in the 
current guidance, this case informed the Court's decisions in the 
latter two cases.
    The agencies believe it is advisable to replace existing guidance 
documents interpreting SWANCC and Rapanos in order to implement the CWA 
in a manner that is consistent with those opinions, reflects the best 
available science, and recognizes recent field implementation 
experience. By reflecting such developments, the proposed guidance made 
available today for public comment is expected, once it is finalized 
after considering all comments received, to provide clearer direction 
to field staff in implementing the Court decisions and reduce 
uncertainty in the regulated community.
    EPA and Army Corps of Engineers Guidance Regarding Identification 
of Waters Protected by the Clean Water Act

    Dated: April 25, 2011.
Nancy K. Stoner,
Acting Assistant Administrator for Water Environmental Protection 
Agency.
    Dated: April 26, 2011.
Jo Ellen Darcy,
Assistant Secretary of the Army (Civil Works), Department of the Army.
[FR Doc. 2011-10565 Filed 4-29-11; 8:45 am]
BILLING CODE 6560-50-P
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