Intention To Review and Rescind or Revise the Clean Water Rule, 12532 [2017-04312]
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12532
Federal Register / Vol. 82, No. 42 / Monday, March 6, 2017 / Proposed Rules
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 110, 112, 116, 117, 122,
230, 232, 300, 302, and 401
[FRL–9959–93–OW]
Intention To Review and Rescind or
Revise the Clean Water Rule
U.S. Army Corps of Engineers
(Corps), Department of the Army,
Department of Defense; Environmental
Protection Agency (EPA).
ACTION: Notice of intent.
AGENCY:
In accordance with a
Presidential directive, the U.S.
Environmental Protection Agency (EPA)
and the Department of the Army (Army)
announces its intention to review and
rescind or revise the Clean Water Rule.
DATES: March 6, 2017.
FOR FURTHER INFORMATION, CONTACT: Ms.
Donna Downing, Office of Water (4502–
T), Environmental Protection Agency,
1200 Pennsylvania Avenue NW.,
Washington, DC 20460; telephone
number 202–566–2428; email
CWAwaters@epa.gov, and Mr. Gib
Owen, Office of the Assistant Secretary
of the Army for Civil Works,
Department of the Army, 104 Army
Pentagon, Washington, DC 20310–0104;
telephone number 703–695–4641; email
gib.a.owen.civ@mail.mil.
SUPPLEMENTARY INFORMATION: The
Federal Water Pollution Control Act,
originally enacted in 1948, most
comprehensively amended in 1972, and
known as the Clean Water Act (CWA),
seeks ‘‘to restore and maintain the
chemical, physical, and biological
integrity of the Nation’s waters.’’ 33
U.S.C. 1251 et seq. Among other
provisions, the CWA regulates the
discharge of pollutants into ‘‘navigable
waters,’’ defined in the CWA as ‘‘the
waters of the United States.’’ The
question of what is a ‘‘water of the
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
16:39 Mar 03, 2017
Jkt 241001
United States’’ is one that has generated
substantial interest and uncertainty,
especially among states, small
businesses, the agricultural
communities, and environmental
organizations, because it relates to the
extent of jurisdiction for federal and
relevant state regulations.
The EPA and the Department of the
Army (collectively, the agencies) have
promulgated a series of regulations
defining ‘‘waters of the United States.’’
The scope of ‘‘waters of the United
States’’ as defined by the prior
regulations has been subject to litigation
in several U.S. Supreme Court cases,
most recently in Rapanos v. United
States, 547 U.S. 715 (2006) (‘‘Rapanos’’).
In response to that decision, the
agencies issued guidance regarding
CWA jurisdiction in 2007, and revised
it in 2008.
In response to that 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. At the conclusion of that
rulemaking process, the agencies issued
the ‘‘Clean Water Rule: Definition of
‘Waters of the United States.’ ’’ 80 FR
37054 (‘‘2015 Rule’’) (found at 40 CFR
110, 112, 116, 117, 122, 230, 232, 300,
302 and 401, and 33 CFR 328).
Due to concerns about the potential
for continued regulatory uncertainty, as
well as the scope and legal authority of
the 2015 Rule, 31 states and a number
of other parties sought judicial review in
multiple actions. Seven states plus the
District of Columbia, and an additional
number of parties, then intervened in
those cases. 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.
On February 28, 2017, the President
of the United States issued an Executive
Order directing the EPA and the Army
to review and rescind or revise the 2015
Rule. Today, the EPA and the Army
announce their intention to review that
rule, and provide advanced notice of a
forthcoming proposed rulemaking
consistent with the Executive Order. In
doing so, the agencies will consider
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Fmt 4702
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interpreting the term ‘‘navigable
waters,’’ as defined in the CWA in a
manner consistent with the opinion of
Justice Scalia in Rapanos. It is
important that stakeholders and the
public at large have certainty as to how
the CWA applies to their activities.
Agencies have inherent authority to
reconsider past decisions and to revise,
replace or repeal a decision to the extent
permitted by law and supported by a
reasoned explanation. FCC v. Fox
Television Stations, Inc., 556 U.S. 502,
515 (2009) (‘‘Fox’’); Motor Vehicle
Manufacturers Ass’n of the United
States, Inc., et al, v. State Farm Mutual
Automobile Insurance Co., et al. 463
U.S. 29, 42 (1983) (‘‘State Farm’’).
Importantly, such a revised decision
need not be based upon a change of
facts or circumstances. A revised
rulemaking based ‘‘on a reevaluation 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 the costs and
benefits of its programs and
regulations.’’ National 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; quoting State Farm, 463
U.S. at 59 (Rehnquist, J., concurring in
part and dissenting in part)).
Through new rulemaking, the EPA
and the Army seek to provide greater
clarity and regulatory certainty
concerning the definition of ‘‘waters of
the United States,’’ consistent with the
principles outlined in the Executive
Order and the agencies’ legal authority.
Dated: February 28, 2017.
E. Scott Pruitt,
Administrator, Environmental Protection
Agency.
Dated: February 28, 2017.
Douglas W. Lamont,
Senior Offical Performing the Duties of the
Assistant Secretary of the Army for Civil
Works, Department of the Army.
[FR Doc. 2017–04312 Filed 3–3–17; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\06MRP1.SGM
06MRP1
Agencies
[Federal Register Volume 82, Number 42 (Monday, March 6, 2017)]
[Proposed Rules]
[Page 12532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-04312]
[[Page 12532]]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401
[FRL-9959-93-OW]
Intention To Review and Rescind or Revise the Clean Water Rule
AGENCY: U.S. Army Corps of Engineers (Corps), Department of the Army,
Department of Defense; Environmental Protection Agency (EPA).
ACTION: Notice of intent.
-----------------------------------------------------------------------
SUMMARY: In accordance with a Presidential directive, the U.S.
Environmental Protection Agency (EPA) and the Department of the Army
(Army) announces its intention to review and rescind or revise the
Clean Water Rule.
DATES: March 6, 2017.
FOR FURTHER INFORMATION, CONTACT: Ms. Donna Downing, Office of Water
(4502-T), Environmental Protection Agency, 1200 Pennsylvania Avenue
NW., Washington, DC 20460; telephone number 202-566-2428; email
CWAwaters@epa.gov, and Mr. Gib Owen, Office of the Assistant Secretary
of the Army for Civil Works, Department of the Army, 104 Army Pentagon,
Washington, DC 20310-0104; telephone number 703-695-4641; email
gib.a.owen.civ@mail.mil.
SUPPLEMENTARY INFORMATION: The Federal Water Pollution Control Act,
originally enacted in 1948, most comprehensively amended in 1972, and
known as the Clean Water Act (CWA), seeks ``to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters.''
33 U.S.C. 1251 et seq. Among other provisions, the CWA regulates the
discharge of pollutants into ``navigable waters,'' defined in the CWA
as ``the waters of the United States.'' The question of what is a
``water of the United States'' is one that has generated substantial
interest and uncertainty, especially among states, small businesses,
the agricultural communities, and environmental organizations, because
it relates to the extent of jurisdiction for federal and relevant state
regulations.
The EPA and the Department of the Army (collectively, the agencies)
have promulgated a series of regulations defining ``waters of the
United States.'' The scope of ``waters of the United States'' as
defined by the prior regulations has been subject to litigation in
several U.S. Supreme Court cases, most recently in Rapanos v. United
States, 547 U.S. 715 (2006) (``Rapanos''). In response to that
decision, the agencies issued guidance regarding CWA jurisdiction in
2007, and revised it in 2008.
In response to that 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. At the conclusion of that rulemaking process, the
agencies issued the ``Clean Water Rule: Definition of `Waters of the
United States.' '' 80 FR 37054 (``2015 Rule'') (found at 40 CFR 110,
112, 116, 117, 122, 230, 232, 300, 302 and 401, and 33 CFR 328).
Due to concerns about the potential for continued regulatory
uncertainty, as well as the scope and legal authority of the 2015 Rule,
31 states and a number of other parties sought judicial review in
multiple actions. Seven states plus the District of Columbia, and an
additional number of parties, then intervened in those cases. 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.
On February 28, 2017, the President of the United States issued an
Executive Order directing the EPA and the Army to review and rescind or
revise the 2015 Rule. Today, the EPA and the Army announce their
intention to review that rule, and provide advanced notice of a
forthcoming proposed rulemaking consistent with the Executive Order. In
doing so, the agencies will consider interpreting the term ``navigable
waters,'' as defined in the CWA in a manner consistent with the opinion
of Justice Scalia in Rapanos. It is important that stakeholders and the
public at large have certainty as to how the CWA applies to their
activities.
Agencies have inherent authority to reconsider past decisions and
to revise, replace or repeal a decision to the extent permitted by law
and supported by a reasoned explanation. FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009) (``Fox''); Motor Vehicle
Manufacturers Ass'n of the United States, Inc., et al, v. State Farm
Mutual Automobile Insurance Co., et al. 463 U.S. 29, 42 (1983) (``State
Farm''). Importantly, such a revised decision need not be based upon a
change of facts or circumstances. A revised rulemaking based ``on a
reevaluation 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 the
costs and benefits of its programs and regulations.'' National 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; quoting State Farm, 463 U.S. at 59
(Rehnquist, J., concurring in part and dissenting in part)).
Through new rulemaking, the EPA and the Army seek to provide
greater clarity and regulatory certainty concerning the definition of
``waters of the United States,'' consistent with the principles
outlined in the Executive Order and the agencies' legal authority.
Dated: February 28, 2017.
E. Scott Pruitt,
Administrator, Environmental Protection Agency.
Dated: February 28, 2017.
Douglas W. Lamont,
Senior Offical Performing the Duties of the Assistant Secretary of the
Army for Civil Works, Department of the Army.
[FR Doc. 2017-04312 Filed 3-3-17; 8:45 am]
BILLING CODE 6560-50-P