Definition of “Waters of the United States”-Addition of an Applicability Date to 2015 Clean Water Rule, 55542-55547 [2017-25321]

Download as PDF 55542 Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 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 [EPA–HQ–OW–2017–0644; FRL–9970–57– OW] RIN 2040–AF80 Definition of ‘‘Waters of the United States’’—Addition of an Applicability Date to 2015 Clean Water Rule Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency and the Department of the Army (‘‘the agencies’’) are proposing to add an applicability date to the ‘‘Clean Water Rule: Definition of ‘Waters of the United States’’’ (the ‘‘2015 Rule’’) to two years from the date of final action on this proposal. On October 9, 2015, the Sixth Circuit stayed the 2015 Rule nationwide pending further action of the court, but the Supreme Court is currently reviewing the question of whether the court of appeals has original jurisdiction to review challenges to the 2015 Rule. On February 28, 2017, the President signed an Executive Order, ‘‘Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.’’ With this proposed rule, the agencies intend to maintain the status quo by proposing to add an applicability date to the 2015 Rule and thus provide continuity and regulatory certainty for regulated entities, the States and Tribes, agency staff, and the public while the agencies continue to work to consider possible revisions to the 2015 Rule. DATES: Comments must be received on or before December 13, 2017. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ– OW–2017–0644, at http:// www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The agencies may publish any comment received to the public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other ethrower on DSK3G9T082PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 17:48 Nov 21, 2017 Jkt 244001 information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The agencies will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing, Office of Water (4504– T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 566–2428; email address: CWAwotus@epa.gov; or Ms. Stacey Jensen, Regulatory Community of Practice (CECW–CO–R), U.S. Army Corps of Engineers, 441 G Street NW., Washington, DC 20314; telephone number: (202) 761–5903; email address: USACE_CWA_Rule@usace.army.mil. SUPPLEMENTARY INFORMATION: The Environmental Protection Agency and the Department of the Army (‘‘the agencies’’) are proposing to add an applicability date to the 2015 Clean Water Rule of two years from the date of final action on this proposal. The effective date of the 2015 Rule was August 28, 2015. On July 27, 2017, the agencies published a proposed rule to initiate the first step in a comprehensive, two-step process intended to review and revise, as appropriate and consistent with law, the definition of ‘‘waters of the United States’’ under with Executive Order 13778 signed on February 28, 2017, ‘‘Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.’’ The first step in the process (the ‘‘Step One rule’’) proposed to rescind the definition of ‘‘waters of the United States’’ promulgated by the agencies in 2015 in the Code of Federal Regulations and to re-codify the previous definition of ‘‘waters of the United States,’’ which defines the scope of the Clean Water Act. The previous definition is currently in effect pursuant to a decision issued by the U.S. Court of Appeals for the Sixth Circuit staying the 2015 definition of ‘‘waters of the United States.’’ In a second step (the ‘‘Step Two rule’’), the agencies intend to pursue a public notice-and-comment rulemaking in PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 which the agencies would conduct a substantive re-evaluation of the definition of ‘‘waters of the United States.’’ With this proposed rule to add an applicability date to the 2015 Rule, the agencies intend to provide, for an interim period, greater regulatory certainty about the definition of ‘‘waters of the United States’’ in effect while they continue to work on the two-step rulemaking process. The addition of the applicability date to the 2015 Rule to two years after the date of a final rule under this proposed rulemaking effort would ensure that the regulatory definition of ‘‘waters of the United States’’ that existed prior to promulgation of the rule in 2015 and that has been in effect nationwide since the 2015 Rule was stayed on October 9, 2015, would remain in effect during the ongoing actions undertaken in response to the Executive Order. This proposed rule to add an applicability date to the 2015 Rule would maintain the legal status quo and thus provide continuity and certainty for regulated entities, the States and Tribes, agency staff, and the public. The agencies would administer the regulations as they are currently being implemented, consistent with Supreme Court decisions and longstanding practice as informed by applicable agency guidance documents. State, tribal, and local governments have well-defined and longstanding relationships with the federal government in implementing CWA programs and these relationships are not altered by this proposed rule. This proposed rule would not establish any new regulatory requirements. Rather, this rule would simply add an applicability date to the 2015 Rule leaving in place the current legal status quo while the agencies continue to engage in substantive rulemaking to reconsider the definition of ‘‘waters of the United States.’’ I. Background and Discussion of Addition of Applicability Date A. What This Proposed Rule Does In 2015, the agencies published the ‘‘Clean Water Rule: Definition of ‘Waters of the United States’’’ (80 FR 37054, June 29, 2015), and on October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 Rule nationwide pending further action of the court. The 2015 Rule had an effective date of August 28, 2015. The agencies propose to add an applicability date of two years from the date of final action on this proposal. The effective date of the 2015 Rule was established by a document published by the agencies in the Federal Register (80 FR 37054, June 29, 2015). E:\FR\FM\22NOP1.SGM 22NOP1 Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules ethrower on DSK3G9T082PROD with PROPOSALS The Code of Federal Regulations text does not include an applicability date; therefore, the agencies are proposing to amend the text of the Code of Federal Regulations to add a new applicability date. Until the new applicability date, the agencies would continue to implement the prior regulatory definitions, informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice, as the agencies have been operating pursuant to the Sixth Circuit’s October 9, 2015, order. B. History and the Purpose of This Rulemaking Congress enacted the Federal Water Pollution Control Act Amendments of 1972, Public Law 92–500, 86 Stat. 816, as amended, Public Law 95–217, 91 Stat. 1566, 33 U.S.C. 1251 et seq. (‘‘Clean Water Act’’ or ‘‘CWA’’ or ‘‘Act’’) ‘‘to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.’’ Section 101(a). A primary tool in achieving that purpose is a prohibition on the discharge of any pollutants, including dredged or fill material, to ‘‘navigable waters’’ except in accordance with the Act. Section 301(a). The CWA provides that ‘‘[t]he term ‘navigable waters’ means the waters of the United States, including the territorial seas.’’ Section 502(7). The regulations defining the ‘‘waters of the United States’’ currently in effect were established in large part in 1977 (42 FR 37122, July 19, 1977). While EPA administers most provisions in the CWA, the U.S. Army Corps of Engineers (Corps) administers the permitting program under section 404. During the 1980s, both of these agencies adopted substantially similar definitions (51 FR 41206, Nov. 13, 1986, amending 33 CFR 328.3; 53 FR 20764, June 6, 1988, amending 40 CFR 232.2). In 2015, following public notice and comment on a proposed rule, the agencies published a final rule defining the ‘‘waters of the United States’’ (80 FR 37054). Thirty-one States and other parties sought judicial review in multiple actions in Federal district courts and Circuit Courts of Appeal, raising concerns about the scope and legal authority of the 2015 Rule. One district court issued an order granting a motion for preliminary injunction one day prior to the rule’s effective date that applies to the thirteen plaintiff States in that case, State of North Dakota et al. v. US EPA, No. 15–00059, slip op. at 1–2 (D.N.D. Aug. 27, 2015, as clarified by order issued on September 4, 2015), and several weeks later, the Sixth Circuit stayed the 2015 Rule nationwide to VerDate Sep<11>2014 17:48 Nov 21, 2017 Jkt 244001 restore the ‘‘pre-Rule regime, pending judicial review.’’ In re U.S. Dep’t. of Def. and U.S. Envtl. Protection Agency Final Rule: Clean Water Rule, No. 15–3751 (lead), slip op. at 6. Pursuant to the Sixth Circuit’s order, the agencies are applying the definition of ‘‘waters of the United States’’ that preceded the 2015 Rule nationwide. On January 13, 2017, the U.S. Supreme Court granted certiorari on the question of whether the court of appeals has original jurisdiction to review challenges to the 2015 Rule. The Sixth Circuit granted petitioners’ motion to hold in abeyance the briefing schedule in the litigation challenging the 2015 Rule pending a Supreme Court decision on the question of the court of appeals’ jurisdiction. On October 11, 2017, the Supreme Court held oral argument on the question of whether the court of appeals has original jurisdiction to review challenges to the 2015 Rule. The Supreme Court could issue a decision resolving the question at any time. On February 28, 2017, the President of the United States issued an Executive Order entitled ‘‘Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.’’ Section 1 of the Order states, ‘‘[i]t is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.’’ The Executive Order directed the EPA and the Army to review the 2015 Rule for consistency with the policy outlined in section 1 of the Order, and to issue a proposed rule rescinding or revising the 2015 Rule as appropriate and consistent with law. Section 2. The Executive Order also directed the agencies to consider interpreting the term ‘‘navigable waters’’ in a manner consistent with Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). Section 3. On July 27, 2017, the agencies proposed a rule to rescind the 2015 Rule and replace it with a recodification of the regulatory text that governed the legal regime prior to the 2015 Rule (82 FR 34899), and that the agencies are currently implementing under the court stay, informed by applicable guidance documents (e.g., 2003 and 2008 guidance documents, as well as relevant memoranda and regulatory guidance letters), and consistent with Supreme Court decisions and longstanding agency practice. The agencies received many comments on the Step One PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 55543 proposed recodification and it remains under active consideration. C. Today’s Proposed Rule In this proposed rule, the agencies would add an applicability date to the 2015 Rule such that it is not implemented until two years from the date of a final action on this proposal. During that time, the agencies will continue to implement nationwide the previous regulatory definition of ‘‘waters of the United States’’ as they are currently doing under the Sixth Circuit’s stay, informed by applicable guidance documents (e.g., 2003 and 2008 guidance documents, as well as relevant memoranda and regulatory guidance letters), and consistent with Supreme Court decisions and longstanding agency practice. The scope of CWA jurisdiction is an issue of great national importance and therefore the agencies will provide for robust deliberations to re-evaluate the definition of ‘‘waters of the United States.’’. While engaging in such deliberations, however, the agencies recognize the need to provide an interim step for regulatory continuity and clarity for the many stakeholders affected by the definition of ‘‘waters of the United States.’’ The pre-2015 Rule regulatory regime is in effect as a result of the Sixth Circuit’s stay of the 2015 Rule but that regime depends upon the pendency of the Sixth Circuit’s order and could be altered at any time by factors beyond the control of the agencies. The Supreme Court’s resolution of the question as to which courts have original jurisdiction over challenges to the 2015 Rule could impact the Sixth Circuit’s exercise of jurisdiction and its stay. If, for example, the Supreme Court were to decide that the Sixth Circuit lacks original jurisdiction over challenges to the 2015 Rule, the Sixth Circuit case would be dismissed and its nationwide stay would expire, leading to possible inconsistencies, uncertainty, and confusion as to the regulatory regime that could be in effect pending substantive rulemaking under the Executive Order. As noted previously, prior to the Sixth Circuit’s stay order, the District Court for North Dakota had preliminarily enjoined the rule in 13 States (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New Mexico). Therefore, if the Sixth Circuit’s nationwide stay were to expire, the 2015 Rule would be enjoined under the North Dakota order in States covering a large geographic area of the country, but the rule would be in effect in the rest of the E:\FR\FM\22NOP1.SGM 22NOP1 ethrower on DSK3G9T082PROD with PROPOSALS 55544 Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules country pending further judicial decision-making or substantive rulemaking under the Executive Order. Adding to the confusion that could be caused if the Sixth Circuit’s nationwide stay of the 2015 Rule were to expire, there are multiple other district court cases pending on the 2015 Rule, including several where challengers have filed motions for preliminary injunctions. These cases—and the pending preliminary injunction motions—could be reactivated if the Supreme Court were to determine that the Sixth Circuit lacks original jurisdiction over challenges to the 2015 Rule. In addition, if the Supreme Court were to decide that the courts of appeal do have original jurisdiction over challenges to the 2015 Rule, the litigation in the Sixth Circuit could resume and therefore control over which regulatory definition of ‘‘waters of the United States’’ is in effect while the agencies engage in deliberations on the ultimate regulation could remain outside of the agencies. The proposed interim rule would establish a clear regulatory framework that could avoid the possible inconsistencies, uncertainty and confusion that could result from a Supreme Court ruling while the agencies reconsider the 2015 Rule. It would ensure that, during this interim period, the scope of CWA jurisdiction will be administered exactly the way it is now, and as it has been for many years prior to the promulgation of the 2015 Rule. The agencies are proposing an applicability date two years after the date of publication of the final rule in order to ensure that there is sufficient time for the regulatory process for reconsidering the definition of ‘‘waters of the United States’’ to be fully completed. The agencies are undertaking an extensive outreach effort to gather information and recommendations from States and tribes, regulated entities, academia, and the public. The geographic scope of the Clean Water Act is of great national interest and there were more than 680,000 public comments on the Step One proposed rule. The agencies continue to work as expeditiously as possible to complete the two-step rulemaking process. However, in light of the great interest in this rulemaking, the agencies are proposing an applicability date for the 2015 Rule that is two years after the publication date of the final rule to ensure that there is sufficient time for a consideration of the results of the outreach process, robust discussion with other federal agencies, an appropriate public comment period, and VerDate Sep<11>2014 17:48 Nov 21, 2017 Jkt 244001 consideration of the resulting comments during the Step Two rulemaking. The agencies recognize that there may be some confusion because there is an existing proposal to rescind the 2015 Rule and replace it with the previous definition of ‘‘waters of the United States,’’ as well as ongoing pre-proposal stakeholder outreach and engagement about the scope of the Step Two rulemaking that would substantively reconsider the definition of ‘‘waters of the United States.’’ The comment period for the July Step One proposed rule is now closed and the agencies are considering those comments and developing the Step Two proposal. In light of the public interest in these rules and the length of time involved in these rulemakings, the agencies today are proposing this more narrowly targeted and focused interim rule to ensure the consistency of implementation of the definition of ‘‘waters of the United States’’ during this interim period. Because the request for comment is on such a narrow topic, and because a Supreme Court ruling could come at any time, the agencies believe that a short comment period is reasonable. II. General Information A. How can I get copies of this document and related information? 1. Docket. An official public docket for this action has been established under Docket ID No. EPA–HQ–OW– 2017–0644. The official public docket consists of the documents specifically referenced in this action, and other information related to this action. The official public docket is the collection of materials that is available for public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20004. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The OW Docket telephone number is 202–566– 2426. A reasonable fee will be charged for copies. 2. Electronic Access. You may access this Federal Register document electronically under the ‘‘Federal Register’’ listings at http:// www.regulations.gov. An electronic version of the public docket is available through EPA’s electronic public docket and comment system, EPA Dockets. You may access EPA Dockets at http:// www.regulations.gov to view public comments as they are submitted and posted, access the index listing of the contents of the official public docket, and access those documents in the public docket that are available electronically. For additional PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 information about EPA’s public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/ dockets.htm. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the Docket Facility. B. What is the agencies’ authority for taking this action? The authority for this action is the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., including sections 301, 304, 311, 401, 402, 404 and 501. C. What are the economic impacts of this action? The agencies have determined that there are no economic costs or benefits associated with this action. In light of the ongoing, complex litigation over the 2015 Rule, the agencies believe it is reasonable and appropriate for purposes of considering economic impacts for this proposal to presume that the legal status quo is likely to remain the same. This proposal, if finalized, would have the effect of providing the public with regulatory certainty while the agencies pursue a substantive rulemaking process. This proposal would eliminate one source of uncertainty for the regulated community as they consider investments. While the agencies recognize that there could be benefits associated with greater regulatory certainty, we are unable to quantify those benefits. The agencies have prepared a memorandum to the record to provide the public with information about this conclusion with respect to the potential economic impacts associated with this action. A copy of the memorandum is available in the docket for this action. III. Public Comments The agencies solicit comment as to whether it is desirable and appropriate to add an applicability date to the 2015 Rule. The agencies are proposing to establish an applicability date of two years after a final rule and seek comment on whether the time period should be shorter or longer, and whether adding the applicability date contributes to regulatory certainty. The agencies have prepared a memorandum to the record to provide the public with information about the activities envisioned in support of a comprehensive rulemaking process. A copy of the memorandum is available in the docket for this action. Because the agencies propose to simply add the applicability date and ensure continuance of the legal status quo and because it is a temporary, E:\FR\FM\22NOP1.SGM 22NOP1 Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules interim measure pending substantive rulemaking, the agencies believe that a short comment period is reasonable. In addition, please note that this proposed rulemaking does not undertake any substantive reconsideration of the pre2015 ‘‘waters of the United States’’ definition nor are the agencies soliciting comment on the specific content of those longstanding regulations. See P&V Enterprises v. Corps of Engineers, 516 F.3d 1021,1023–24 (D.C. Cir. 2008). For the same reason, the agencies are not at this time soliciting comment on the scope of the definition of ‘‘waters of the United States’’ that the agencies should ultimately adopt in the Step Two rule in this process, as the agencies will address those issues as appropriate, including those related to the 2015 Rule, in the notice and comment rulemaking to consider adopting a revised definition of ‘‘waters of the United States’’ in light of the February 28, 2017, Executive Order. The agencies do not intend to engage in substantive re-evaluation of the definition of ‘‘waters of the United States’’ until the Step Two rulemaking. See P&V, 516 F.3d at 1025–26. IV. Statutory and Executive Order Reviews ethrower on DSK3G9T082PROD with PROPOSALS A. Executive Order 12866: Regulatory Planning and Review; and Executive Order 13563: Improving Regulation and Regulatory Review This action is a significant regulatory action because policy issues with respect to the definition of ‘‘waters of the United States’’ are novel for purposes of Executive Order 12866 and it was submitted to the Office of Management and Budget (OMB) for review. It is not an economically significant action. Any changes made in response to OMB recommendations have been documented in the docket. In addition, the agencies prepared a memorandum to the record regarding analysis of the potential economic impacts associated with this action. The agencies have determined that there are no costs or benefits associated with this action. This action would simply add an applicability date to the 2015 Rule which is stayed nationwide and the legal status quo continues to remain in place. A copy of the memorandum is available in the docket for this action. B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs This action is not expected to be subject to Executive Order 13771 because this proposed rule is expected to result in no additional costs. VerDate Sep<11>2014 17:48 Nov 21, 2017 Jkt 244001 C. Paperwork Reduction Act (PRA) This proposed rule does not involve any information collection activities subject to the PRA, 44 U.S.C. 3501 et seq. D. Regulatory Flexibility Act (RFA) We certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action would simply add an applicability date to the 2015 Rule which is stayed nationwide and the legal status quo continues to remain in place. We have therefore concluded that this action will not have a significant impact on small entities. This analysis is contained in a memorandum to the record, which is available in the docket for this action. E. Unfunded Mandates Reform Act (UMRA) This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. The definition of ‘‘waters of the United States’’ applies broadly to all CWA programs. F. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have Tribal implications, as specified in Executive Order 13175. This action would simply add an applicability date to the 2015 Rule which is stayed nationwide and the legal status quo continues to remain in place. Thus, Executive Order 13175 does not apply to this action. PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 55545 H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks The agencies interpret Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the agencies have reason to believe may disproportionately affect children, per the definition of ‘‘covered regulatory action’’ in section 2–202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not a ‘‘significant energy action’’ because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This action would simply add an applicability date to the 2015 Rule which is stayed nationwide and the legal status quo continues to remain in place. J. National Technology Transfer and Advancement Act (NTTAA) This rulemaking does not involve technical standards. K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations The agencies believe that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This is a proposal to add an applicability date to the 2015 Rule. The agencies believe it is more appropriate to consider the impact on minority and low-income populations in the context of possible substantive changes as part of any reconsideration of the 2015 Rule. List of Subjects 33 CFR Part 328 Environmental protection, Administrative practice and procedure, Intergovernmental relations, Navigation, Water pollution control, Waterways. 40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401 Environmental protection, Water pollution control. E:\FR\FM\22NOP1.SGM 22NOP1 55546 Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules Dated: November 16, 2017. E. Scott Pruitt, Administrator, Environmental Protection Agency. Dated: November 16, 2017. Ryan A. Fisher, Acting Assistant Secretary of the Army (Civil Works). Title 33—Navigation and Navigable Waters For the reasons set out in the preamble, title 33, chapter II of the Code of Federal Regulations is proposed to be amended as follows: PART 328—DEFINITION OF WATERS OF THE UNITED STATES 6. Section 112.2 is amended by adding paragraph (4) to the definition of ‘‘Navigable waters’’ to read as follows: ■ § 112.2 * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 116—DESIGNATION OF HAZARDOUS SUBSTANCES 7. The authority citation for part 116 continues to read as follows: ■ Authority: 33 U.S.C. 1251 et seq. 1. The authority citation for part 328 continues to read as follows: 2. Section 328.3 is amended by adding paragraph (e) to read as follows: ■ * * * * * (e) Applicability date. Paragraphs (a) through (c) of this section are applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. Title 40—Protection of Environment For reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 110—DISCHARGE OF OIL 3. The authority citation for part 110 continues to read as follows: Authority: 33 U.S.C. 1251 et seq., 33 U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O. 11735, 38 FR 21243, 3 CFR parts 1971–1975 Comp., p. 793. 4. Section 110.1 is amended by adding paragraph (4) to the definition of ‘‘Navigable waters’’ to read as follows: ■ Definitions. ethrower on DSK3G9T082PROD with PROPOSALS * * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 112—OIL POLLUTION PREVENTION 5. The authority citation for part 112 continues to read as follows: ■ Authority: 33 U.S.C. 1251 et seq. Jkt 244001 * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 117—DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS SUBSTANCES 9. The authority citation for part 117 continues to read as follows: ■ Authority: 33 U.S.C. 1251 et seq., and Executive Order 11735, superseded by Executive Order 12777, 56 FR 54757. ■ 17:48 Nov 21, 2017 Definitions. * Definitions. VerDate Sep<11>2014 8. Section 116.3 is amended by adding paragraph (4) to the definition of ‘‘Navigable waters’’ to read as follows: § 116.3 Definitions. * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 230—SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF DISPOSAL SITES FOR DREDGED OR FILL MATERIAL 13. The authority citation for part 230 continues to read as follows: ■ Authority: 33 U.S.C. 1251 et seq. ■ Authority: 33 U.S.C. 1251 et seq. § 110.1 § 122.2 * * ■ § 328.3 Definitions. ‘‘Waters of the United States’’ read as follows: 14. Section 230.3 is amended by adding paragraph (o)(4) to read as follows: ■ § 230.3 Definitions. * * * * * (o) * * * (4) Applicability date. This paragraph (o) is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. PART 232—404 PROGRAM DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING 404 PERMITS 15. The authority citation for part 232 continues to read as follows: ■ Authority: 33 U.S.C. 1251 et seq. 16. Section 232.2 is amended by adding paragraph (4) to the definition of ‘‘Waters of the United States’’ to read as follows: ■ 10. Section 117.1 is amended by adding paragraph (i)(4) to read as follows: § 232.2 § 117.1 * ■ Definitions. * * * * * (i) * * * (4) Applicability date. This paragraph (i) is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM 11. The authority citation for part 122 continues to read as follows: ■ Authority: The Clean Water Act, 33 U.S.C. 1251 et seq. 12. Section 122.2 is amended by adding paragraph (4) to the definition of ■ PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 Definitions. * * * * Waters of the United States * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. PART 300—NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN 17. The authority citation for part 300 continues to read as follows: ■ Authority: 33 U.S.C. 1321(d); 42 U.S.C. 9601–9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193. 18. Section 300.5 is amended by adding paragraph (4) to the definition of ‘‘Navigable waters’’ to read as follows: ■ E:\FR\FM\22NOP1.SGM 22NOP1 Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules § 300.5 Definitions. * * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * ■ 19. In appendix E to part 300, section 1.5 Definitions is amended by adding paragraph (4) to the definition of ‘‘Navigable waters’’ to read as follows: Appendix E to Part 300—Oil Spill Response * * * * * 1.5 * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 302—DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION 20. The authority citation for part 302 continues to read as follows: ■ Authority: 33 U.S.C. 1251 et seq. 21. Section 302.3 is amended by adding paragraph (4) to the definition of ‘‘Navigable waters’’ to read as follows: ■ § 302.3 Definitions. * * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 401—GENERAL PROVISIONS 22. The authority citation for part 401 continues to read as follows: ■ Authority: 33 U.S.C. 1251 et seq. 23. Section 401.11 is amended by adding paragraph (1)(4) to read as follows: ■ § 401.11 General definitions. ethrower on DSK3G9T082PROD with PROPOSALS * * * * * (l) * * * (4) Applicability date. This paragraph (l) is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * [FR Doc. 2017–25321 Filed 11–21–17; 8:45 am] BILLING CODE 6560–50–P VerDate Sep<11>2014 17:48 Nov 21, 2017 Jkt 244001 DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900–AP20 Third Party Billing for Medical Care Provided Under Special Treatment Authorities Department of Veterans Affairs. Proposed rule. AGENCY: ACTION: The Department of Veterans Affairs (VA) proposes to amend its medical regulations to clarify that VA will not bill third party payers for care and services provided by VA under certain statutory provisions, which we refer to as ‘‘special treatment authorities.’’ These special treatment authorities direct VA to provide care and services to veterans based upon discrete exposures or experiences that occurred during active military, naval, or air service. VA is authorized, but not required by law, to recover or collect charges for care and services provided to veterans for non-service connected disabilities. This proposed rule would establish that VA would not exercise its authority to recover or collect reasonable charges from third party payers for care and services provided under the special treatment authorities. DATES: Comments must be received by VA on or before January 22, 2018. ADDRESSES: Written comments may be submitted by email through http:// www.regulations.gov; by mail or handdelivery to Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1063B, Washington, DC 20420; or by fax to (202) 273–9026 (this is not a toll-free number). Comments should indicate that they are submitted in response to ‘‘RIN 2900–AP20, Third Party Billing for Medical Care Provided under Special Treatment Authorities.’’ Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m. Monday through Friday (except holidays). Please call (202) 461–4902 for an appointment (this is not a toll-free number). In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Joseph Duran, Director, Policy and Planning VHA Office of Community Care (10D1A1), Veterans Health Administration, Department of Veterans SUMMARY: PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 55547 Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (303–370–1637). (This is not a toll-free number.) SUPPLEMENTARY INFORMATION: Many veterans enrolled in VA’s health care system also have private insurance. VA is authorized by law under 38 U.S.C. 1729 to recover or collect reasonable charges from third parties under certain situations for care and services provided for non-service-connected disabilities. For example, VA may recover or collect such charges when a veteran requires medical care following a motor vehicle accident or an injury at work. 38 U.S.C. 1729(a)(2)(A)–(B). These provisions are reflected in regulation at 38 CFR 17.101. VA does not have authority to recover or collect charges from third parties for care or services provided for serviceconnected disabilities. Under the statutes referred to as the special treatment authorities, which are codified at 38 U.S.C. 1710(a)(2)(F) and (e), 1720D, and 1720E, VA provides care and services to veterans for conditions and disabilities that are related to certain exposures or experiences during active military, naval, or air service, regardless of whether such condition or disability is formally adjudicated by the Veterans Benefits Administration (VBA) to be service-connected. Specifically, these statutory provisions do not expressly refer to the conditions or disabilities resulting from such exposures or experiences as serviceconnected. Therefore, if veterans meet the eligibility criteria of these discrete categories in law, they receive the health care benefits enumerated in the special treatment authorities. A brief description of each of the special treatment authorities follows. Subject to the availability of appropriations, under 38 U.S.C. 1710(a)(2)(F), VA provides hospital care and medical services, and may furnish nursing home care, to veterans who were exposed to a toxic substance, radiation, or other conditions identified in 38 U.S.C. 1710(e) for the treatment of the disabilities described in subsection (e). More specifically, subject to the requirements in 38 U.S.C. 1710(e)(2)-(4), such care and services are available under 38 U.S.C. 1710(a)(2)(F) and 1710(e) (at no cost to the veteran) as follows: • For the treatment of any disability of a Vietnam-era, herbicide-exposed veteran, notwithstanding that there is insufficient medical evidence to conclude that such disability may be associated with such exposure; • For the treatment of any disease specified by 38 U.S.C. 1112(c)(2) or for which the Secretary, based on the E:\FR\FM\22NOP1.SGM 22NOP1

Agencies

[Federal Register Volume 82, Number 224 (Wednesday, November 22, 2017)]
[Proposed Rules]
[Pages 55542-55547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25321]



[[Page 55542]]

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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

[EPA-HQ-OW-2017-0644; FRL-9970-57-OW]
RIN 2040-AF80


Definition of ``Waters of the United States''--Addition of an 
Applicability Date to 2015 Clean Water Rule

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

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency and the Department of the 
Army (``the agencies'') are proposing to add an applicability date to 
the ``Clean Water Rule: Definition of `Waters of the United States''' 
(the ``2015 Rule'') to two years from the date of final action on this 
proposal. On October 9, 2015, the Sixth Circuit stayed the 2015 Rule 
nationwide pending further action of the court, but the Supreme Court 
is currently reviewing the question of whether the court of appeals has 
original jurisdiction to review challenges to the 2015 Rule. On 
February 28, 2017, the President signed an Executive Order, ``Restoring 
the Rule of Law, Federalism, and Economic Growth by Reviewing the 
`Waters of the United States' Rule.'' With this proposed rule, the 
agencies intend to maintain the status quo by proposing to add an 
applicability date to the 2015 Rule and thus provide continuity and 
regulatory certainty for regulated entities, the States and Tribes, 
agency staff, and the public while the agencies continue to work to 
consider possible revisions to the 2015 Rule.

DATES: Comments must be received on or before December 13, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2017-0644, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The agencies may publish any 
comment received to the public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The 
agencies will generally not consider comments or comment contents 
located outside of the primary submission (i.e. on the web, cloud, or 
other file sharing system). For additional submission methods, the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing, Office of Water 
(4504-T), Environmental Protection Agency, 1200 Pennsylvania Avenue 
NW., Washington, DC 20460; telephone number: (202) 566-2428; email 
address: CWAwotus@epa.gov; or Ms. Stacey Jensen, Regulatory Community 
of Practice (CECW-CO-R), U.S. Army Corps of Engineers, 441 G Street 
NW., Washington, DC 20314; telephone number: (202) 761-5903; email 
address: USACE_CWA_Rule@usace.army.mil.

SUPPLEMENTARY INFORMATION: The Environmental Protection Agency and the 
Department of the Army (``the agencies'') are proposing to add an 
applicability date to the 2015 Clean Water Rule of two years from the 
date of final action on this proposal. The effective date of the 2015 
Rule was August 28, 2015. On July 27, 2017, the agencies published a 
proposed rule to initiate the first step in a comprehensive, two-step 
process intended to review and revise, as appropriate and consistent 
with law, the definition of ``waters of the United States'' under with 
Executive Order 13778 signed on February 28, 2017, ``Restoring the Rule 
of Law, Federalism, and Economic Growth by Reviewing the `Waters of the 
United States' Rule.'' The first step in the process (the ``Step One 
rule'') proposed to rescind the definition of ``waters of the United 
States'' promulgated by the agencies in 2015 in the Code of Federal 
Regulations and to re-codify the previous definition of ``waters of the 
United States,'' which defines the scope of the Clean Water Act. The 
previous definition is currently in effect pursuant to a decision 
issued by the U.S. Court of Appeals for the Sixth Circuit staying the 
2015 definition of ``waters of the United States.'' In a second step 
(the ``Step Two rule''), the agencies intend to pursue a public notice-
and-comment rulemaking in which the agencies would conduct a 
substantive re-evaluation of the definition of ``waters of the United 
States.'' With this proposed rule to add an applicability date to the 
2015 Rule, the agencies intend to provide, for an interim period, 
greater regulatory certainty about the definition of ``waters of the 
United States'' in effect while they continue to work on the two-step 
rulemaking process.
    The addition of the applicability date to the 2015 Rule to two 
years after the date of a final rule under this proposed rulemaking 
effort would ensure that the regulatory definition of ``waters of the 
United States'' that existed prior to promulgation of the rule in 2015 
and that has been in effect nationwide since the 2015 Rule was stayed 
on October 9, 2015, would remain in effect during the ongoing actions 
undertaken in response to the Executive Order. This proposed rule to 
add an applicability date to the 2015 Rule would maintain the legal 
status quo and thus provide continuity and certainty for regulated 
entities, the States and Tribes, agency staff, and the public. The 
agencies would administer the regulations as they are currently being 
implemented, consistent with Supreme Court decisions and longstanding 
practice as informed by applicable agency guidance documents.
    State, tribal, and local governments have well-defined and 
longstanding relationships with the federal government in implementing 
CWA programs and these relationships are not altered by this proposed 
rule. This proposed rule would not establish any new regulatory 
requirements. Rather, this rule would simply add an applicability date 
to the 2015 Rule leaving in place the current legal status quo while 
the agencies continue to engage in substantive rulemaking to reconsider 
the definition of ``waters of the United States.''

I. Background and Discussion of Addition of Applicability Date

A. What This Proposed Rule Does

    In 2015, the agencies published the ``Clean Water Rule: Definition 
of `Waters of the United States''' (80 FR 37054, June 29, 2015), and on 
October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed 
the 2015 Rule nationwide pending further action of the court. The 2015 
Rule had an effective date of August 28, 2015. The agencies propose to 
add an applicability date of two years from the date of final action on 
this proposal. The effective date of the 2015 Rule was established by a 
document published by the agencies in the Federal Register (80 FR 
37054, June 29, 2015).

[[Page 55543]]

The Code of Federal Regulations text does not include an applicability 
date; therefore, the agencies are proposing to amend the text of the 
Code of Federal Regulations to add a new applicability date. Until the 
new applicability date, the agencies would continue to implement the 
prior regulatory definitions, informed by applicable agency guidance 
documents and consistent with Supreme Court decisions and longstanding 
agency practice, as the agencies have been operating pursuant to the 
Sixth Circuit's October 9, 2015, order.

B. History and the Purpose of This Rulemaking

    Congress enacted the Federal Water Pollution Control Act Amendments 
of 1972, Public Law 92-500, 86 Stat. 816, as amended, Public Law 95-
217, 91 Stat. 1566, 33 U.S.C. 1251 et seq. (``Clean Water Act'' or 
``CWA'' or ``Act'') ``to restore and maintain the chemical, physical 
and biological integrity of the Nation's waters.'' Section 101(a). A 
primary tool in achieving that purpose is a prohibition on the 
discharge of any pollutants, including dredged or fill material, to 
``navigable waters'' except in accordance with the Act. Section 301(a). 
The CWA provides that ``[t]he term `navigable waters' means the waters 
of the United States, including the territorial seas.'' Section 502(7).
    The regulations defining the ``waters of the United States'' 
currently in effect were established in large part in 1977 (42 FR 
37122, July 19, 1977). While EPA administers most provisions in the 
CWA, the U.S. Army Corps of Engineers (Corps) administers the 
permitting program under section 404. During the 1980s, both of these 
agencies adopted substantially similar definitions (51 FR 41206, Nov. 
13, 1986, amending 33 CFR 328.3; 53 FR 20764, June 6, 1988, amending 40 
CFR 232.2).
    In 2015, following public notice and comment on a proposed rule, 
the agencies published a final rule defining the ``waters of the United 
States'' (80 FR 37054). Thirty-one States and other parties sought 
judicial review in multiple actions in Federal district courts and 
Circuit Courts of Appeal, raising concerns about the scope and legal 
authority of the 2015 Rule. One district court issued an order granting 
a motion for preliminary injunction one day prior to the rule's 
effective date that applies to the thirteen plaintiff States in that 
case, State of North Dakota et al. v. US EPA, No. 15-00059, slip op. at 
1-2 (D.N.D. Aug. 27, 2015, as clarified by order issued on September 4, 
2015), and several weeks later, the Sixth Circuit stayed the 2015 Rule 
nationwide to restore the ``pre-Rule regime, pending judicial review.'' 
In re U.S. Dep't. of Def. and U.S. Envtl. Protection Agency Final Rule: 
Clean Water Rule, No. 15-3751 (lead), slip op. at 6. Pursuant to the 
Sixth Circuit's order, the agencies are applying the definition of 
``waters of the United States'' that preceded the 2015 Rule nationwide. 
On January 13, 2017, the U.S. Supreme Court granted certiorari on the 
question of whether the court of appeals has original jurisdiction to 
review challenges to the 2015 Rule. The Sixth Circuit granted 
petitioners' motion to hold in abeyance the briefing schedule in the 
litigation challenging the 2015 Rule pending a Supreme Court decision 
on the question of the court of appeals' jurisdiction. On October 11, 
2017, the Supreme Court held oral argument on the question of whether 
the court of appeals has original jurisdiction to review challenges to 
the 2015 Rule. The Supreme Court could issue a decision resolving the 
question at any time.
    On February 28, 2017, the President of the United States issued an 
Executive Order entitled ``Restoring the Rule of Law, Federalism, and 
Economic Growth by Reviewing the `Waters of the United States' Rule.'' 
Section 1 of the Order states, ``[i]t is in the national interest to 
ensure that the Nation's navigable waters are kept free from pollution, 
while at the same time promoting economic growth, minimizing regulatory 
uncertainty, and showing due regard for the roles of the Congress and 
the States under the Constitution.'' The Executive Order directed the 
EPA and the Army to review the 2015 Rule for consistency with the 
policy outlined in section 1 of the Order, and to issue a proposed rule 
rescinding or revising the 2015 Rule as appropriate and consistent with 
law. Section 2. The Executive Order also directed the agencies to 
consider interpreting the term ``navigable waters'' in a manner 
consistent with Justice Scalia's plurality opinion in Rapanos v. United 
States, 547 U.S. 715 (2006). Section 3.
    On July 27, 2017, the agencies proposed a rule to rescind the 2015 
Rule and replace it with a recodification of the regulatory text that 
governed the legal regime prior to the 2015 Rule (82 FR 34899), and 
that the agencies are currently implementing under the court stay, 
informed by applicable guidance documents (e.g., 2003 and 2008 guidance 
documents, as well as relevant memoranda and regulatory guidance 
letters), and consistent with Supreme Court decisions and longstanding 
agency practice. The agencies received many comments on the Step One 
proposed recodification and it remains under active consideration.

C. Today's Proposed Rule

    In this proposed rule, the agencies would add an applicability date 
to the 2015 Rule such that it is not implemented until two years from 
the date of a final action on this proposal. During that time, the 
agencies will continue to implement nationwide the previous regulatory 
definition of ``waters of the United States'' as they are currently 
doing under the Sixth Circuit's stay, informed by applicable guidance 
documents (e.g., 2003 and 2008 guidance documents, as well as relevant 
memoranda and regulatory guidance letters), and consistent with Supreme 
Court decisions and longstanding agency practice.
    The scope of CWA jurisdiction is an issue of great national 
importance and therefore the agencies will provide for robust 
deliberations to re-evaluate the definition of ``waters of the United 
States.''. While engaging in such deliberations, however, the agencies 
recognize the need to provide an interim step for regulatory continuity 
and clarity for the many stakeholders affected by the definition of 
``waters of the United States.'' The pre-2015 Rule regulatory regime is 
in effect as a result of the Sixth Circuit's stay of the 2015 Rule but 
that regime depends upon the pendency of the Sixth Circuit's order and 
could be altered at any time by factors beyond the control of the 
agencies. The Supreme Court's resolution of the question as to which 
courts have original jurisdiction over challenges to the 2015 Rule 
could impact the Sixth Circuit's exercise of jurisdiction and its stay. 
If, for example, the Supreme Court were to decide that the Sixth 
Circuit lacks original jurisdiction over challenges to the 2015 Rule, 
the Sixth Circuit case would be dismissed and its nationwide stay would 
expire, leading to possible inconsistencies, uncertainty, and confusion 
as to the regulatory regime that could be in effect pending substantive 
rulemaking under the Executive Order.
    As noted previously, prior to the Sixth Circuit's stay order, the 
District Court for North Dakota had preliminarily enjoined the rule in 
13 States (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, 
Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New 
Mexico). Therefore, if the Sixth Circuit's nationwide stay were to 
expire, the 2015 Rule would be enjoined under the North Dakota order in 
States covering a large geographic area of the country, but the rule 
would be in effect in the rest of the

[[Page 55544]]

country pending further judicial decision-making or substantive 
rulemaking under the Executive Order. Adding to the confusion that 
could be caused if the Sixth Circuit's nationwide stay of the 2015 Rule 
were to expire, there are multiple other district court cases pending 
on the 2015 Rule, including several where challengers have filed 
motions for preliminary injunctions. These cases--and the pending 
preliminary injunction motions--could be reactivated if the Supreme 
Court were to determine that the Sixth Circuit lacks original 
jurisdiction over challenges to the 2015 Rule.
    In addition, if the Supreme Court were to decide that the courts of 
appeal do have original jurisdiction over challenges to the 2015 Rule, 
the litigation in the Sixth Circuit could resume and therefore control 
over which regulatory definition of ``waters of the United States'' is 
in effect while the agencies engage in deliberations on the ultimate 
regulation could remain outside of the agencies. The proposed interim 
rule would establish a clear regulatory framework that could avoid the 
possible inconsistencies, uncertainty and confusion that could result 
from a Supreme Court ruling while the agencies reconsider the 2015 
Rule. It would ensure that, during this interim period, the scope of 
CWA jurisdiction will be administered exactly the way it is now, and as 
it has been for many years prior to the promulgation of the 2015 Rule.
    The agencies are proposing an applicability date two years after 
the date of publication of the final rule in order to ensure that there 
is sufficient time for the regulatory process for reconsidering the 
definition of ``waters of the United States'' to be fully completed. 
The agencies are undertaking an extensive outreach effort to gather 
information and recommendations from States and tribes, regulated 
entities, academia, and the public. The geographic scope of the Clean 
Water Act is of great national interest and there were more than 
680,000 public comments on the Step One proposed rule. The agencies 
continue to work as expeditiously as possible to complete the two-step 
rulemaking process. However, in light of the great interest in this 
rulemaking, the agencies are proposing an applicability date for the 
2015 Rule that is two years after the publication date of the final 
rule to ensure that there is sufficient time for a consideration of the 
results of the outreach process, robust discussion with other federal 
agencies, an appropriate public comment period, and consideration of 
the resulting comments during the Step Two rulemaking.
    The agencies recognize that there may be some confusion because 
there is an existing proposal to rescind the 2015 Rule and replace it 
with the previous definition of ``waters of the United States,'' as 
well as ongoing pre-proposal stakeholder outreach and engagement about 
the scope of the Step Two rulemaking that would substantively 
reconsider the definition of ``waters of the United States.'' The 
comment period for the July Step One proposed rule is now closed and 
the agencies are considering those comments and developing the Step Two 
proposal. In light of the public interest in these rules and the length 
of time involved in these rulemakings, the agencies today are proposing 
this more narrowly targeted and focused interim rule to ensure the 
consistency of implementation of the definition of ``waters of the 
United States'' during this interim period. Because the request for 
comment is on such a narrow topic, and because a Supreme Court ruling 
could come at any time, the agencies believe that a short comment 
period is reasonable.

II. General Information

A. How can I get copies of this document and related information?

    1. Docket. An official public docket for this action has been 
established under Docket ID No. EPA-HQ-OW-2017-0644. The official 
public docket consists of the documents specifically referenced in this 
action, and other information related to this action. The official 
public docket is the collection of materials that is available for 
public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution 
Ave. NW., Washington, DC 20004. This Docket Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
OW Docket telephone number is 202-566-2426. A reasonable fee will be 
charged for copies.
    2. Electronic Access. You may access this Federal Register document 
electronically under the ``Federal Register'' listings at http://www.regulations.gov. An electronic version of the public docket is 
available through EPA's electronic public docket and comment system, 
EPA Dockets. You may access EPA Dockets at http://www.regulations.gov 
to view public comments as they are submitted and posted, access the 
index listing of the contents of the official public docket, and access 
those documents in the public docket that are available electronically. 
For additional information about EPA's public docket, visit the EPA 
Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the Docket Facility.

B. What is the agencies' authority for taking this action?

    The authority for this action is the Federal Water Pollution 
Control Act, 33 U.S.C. 1251, et seq., including sections 301, 304, 311, 
401, 402, 404 and 501.

C. What are the economic impacts of this action?

    The agencies have determined that there are no economic costs or 
benefits associated with this action. In light of the ongoing, complex 
litigation over the 2015 Rule, the agencies believe it is reasonable 
and appropriate for purposes of considering economic impacts for this 
proposal to presume that the legal status quo is likely to remain the 
same. This proposal, if finalized, would have the effect of providing 
the public with regulatory certainty while the agencies pursue a 
substantive rulemaking process. This proposal would eliminate one 
source of uncertainty for the regulated community as they consider 
investments. While the agencies recognize that there could be benefits 
associated with greater regulatory certainty, we are unable to quantify 
those benefits. The agencies have prepared a memorandum to the record 
to provide the public with information about this conclusion with 
respect to the potential economic impacts associated with this action. 
A copy of the memorandum is available in the docket for this action.

III. Public Comments

    The agencies solicit comment as to whether it is desirable and 
appropriate to add an applicability date to the 2015 Rule. The agencies 
are proposing to establish an applicability date of two years after a 
final rule and seek comment on whether the time period should be 
shorter or longer, and whether adding the applicability date 
contributes to regulatory certainty. The agencies have prepared a 
memorandum to the record to provide the public with information about 
the activities envisioned in support of a comprehensive rulemaking 
process. A copy of the memorandum is available in the docket for this 
action.
    Because the agencies propose to simply add the applicability date 
and ensure continuance of the legal status quo and because it is a 
temporary,

[[Page 55545]]

interim measure pending substantive rulemaking, the agencies believe 
that a short comment period is reasonable. In addition, please note 
that this proposed rulemaking does not undertake any substantive 
reconsideration of the pre-2015 ``waters of the United States'' 
definition nor are the agencies soliciting comment on the specific 
content of those longstanding regulations. See P&V Enterprises v. Corps 
of Engineers, 516 F.3d 1021,1023-24 (D.C. Cir. 2008). For the same 
reason, the agencies are not at this time soliciting comment on the 
scope of the definition of ``waters of the United States'' that the 
agencies should ultimately adopt in the Step Two rule in this process, 
as the agencies will address those issues as appropriate, including 
those related to the 2015 Rule, in the notice and comment rulemaking to 
consider adopting a revised definition of ``waters of the United 
States'' in light of the February 28, 2017, Executive Order. The 
agencies do not intend to engage in substantive re-evaluation of the 
definition of ``waters of the United States'' until the Step Two 
rulemaking. See P&V, 516 F.3d at 1025-26.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review; and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action because policy 
issues with respect to the definition of ``waters of the United 
States'' are novel for purposes of Executive Order 12866 and it was 
submitted to the Office of Management and Budget (OMB) for review. It 
is not an economically significant action. Any changes made in response 
to OMB recommendations have been documented in the docket.
    In addition, the agencies prepared a memorandum to the record 
regarding analysis of the potential economic impacts associated with 
this action. The agencies have determined that there are no costs or 
benefits associated with this action. This action would simply add an 
applicability date to the 2015 Rule which is stayed nationwide and the 
legal status quo continues to remain in place. A copy of the memorandum 
is available in the docket for this action.

B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    This action is not expected to be subject to Executive Order 13771 
because this proposed rule is expected to result in no additional 
costs.

C. Paperwork Reduction Act (PRA)

    This proposed rule does not involve any information collection 
activities subject to the PRA, 44 U.S.C. 3501 et seq.

D. Regulatory Flexibility Act (RFA)

    We certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This action would simply add an 
applicability date to the 2015 Rule which is stayed nationwide and the 
legal status quo continues to remain in place. We have therefore 
concluded that this action will not have a significant impact on small 
entities. This analysis is contained in a memorandum to the record, 
which is available in the docket for this action.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector. The definition of ``waters of the United States'' 
applies broadly to all CWA programs.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have Tribal implications, as specified in 
Executive Order 13175. This action would simply add an applicability 
date to the 2015 Rule which is stayed nationwide and the legal status 
quo continues to remain in place. Thus, Executive Order 13175 does not 
apply to this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The agencies interpret Executive Order 13045 as applying only to 
those regulatory actions that concern environmental health or safety 
risks that the agencies have reason to believe may disproportionately 
affect children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. This action would simply add an 
applicability date to the 2015 Rule which is stayed nationwide and the 
legal status quo continues to remain in place.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The agencies believe that this action is not subject to Executive 
Order 12898 (59 FR 7629, February 16, 1994) because it does not 
establish an environmental health or safety standard. This is a 
proposal to add an applicability date to the 2015 Rule. The agencies 
believe it is more appropriate to consider the impact on minority and 
low-income populations in the context of possible substantive changes 
as part of any reconsideration of the 2015 Rule.

List of Subjects

33 CFR Part 328

    Environmental protection, Administrative practice and procedure, 
Intergovernmental relations, Navigation, Water pollution control, 
Waterways.

40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401

    Environmental protection, Water pollution control.


[[Page 55546]]


    Dated: November 16, 2017.
E. Scott Pruitt,
Administrator, Environmental Protection Agency.
    Dated: November 16, 2017.
Ryan A. Fisher,
Acting Assistant Secretary of the Army (Civil Works).

Title 33--Navigation and Navigable Waters

    For the reasons set out in the preamble, title 33, chapter II of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 328--DEFINITION OF WATERS OF THE UNITED STATES

0
1. The authority citation for part 328 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
2. Section 328.3 is amended by adding paragraph (e) to read as follows:


Sec.  328.3  Definitions.

* * * * *
    (e) Applicability date. Paragraphs (a) through (c) of this section 
are applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION 
OF FINAL RULE IN THE Federal Register].

Title 40--Protection of Environment

    For reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 110--DISCHARGE OF OIL

0
3. The authority citation for part 110 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq., 33 U.S.C. 1321(b)(3) and 
(b)(4) and 1361(a); E.O. 11735, 38 FR 21243, 3 CFR parts 1971-1975 
Comp., p. 793.

0
4. Section 110.1 is amended by adding paragraph (4) to the definition 
of ``Navigable waters'' to read as follows:


Sec.  110.1  Definitions.

* * * * *
    Navigable waters * * *
    (4) Applicability date. This definition is applicable beginning on 
[DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal 
Register].
* * * * *

PART 112--OIL POLLUTION PREVENTION

0
5. The authority citation for part 112 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

0
6. Section 112.2 is amended by adding paragraph (4) to the definition 
of ``Navigable waters'' to read as follows:


Sec.  112.2  Definitions.

* * * * *
    Navigable waters * * *
    (4) Applicability date. This definition is applicable beginning on 
[DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal 
Register].
* * * * *

PART 116--DESIGNATION OF HAZARDOUS SUBSTANCES

0
7. The authority citation for part 116 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
8. Section 116.3 is amended by adding paragraph (4) to the definition 
of ``Navigable waters'' to read as follows:


Sec.  116.3  Definitions.

* * * * *
    Navigable waters * * *
    (4) Applicability date. This definition is applicable beginning on 
[DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal 
Register].
* * * * *

PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS 
SUBSTANCES

0
9. The authority citation for part 117 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq., and Executive Order 11735, 
superseded by Executive Order 12777, 56 FR 54757.

0
10. Section 117.1 is amended by adding paragraph (i)(4) to read as 
follows:


Sec.  117.1  Definitions.

* * * * *
    (i) * * *
    (4) Applicability date. This paragraph (i) is applicable beginning 
on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE 
Federal Register].
* * * * *

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

0
11. The authority citation for part 122 continues to read as follows:

    Authority:  The Clean Water Act, 33 U.S.C. 1251 et seq.

0
12. Section 122.2 is amended by adding paragraph (4) to the definition 
of ``Waters of the United States'' read as follows:


Sec.  122.2  Definitions.

* * * * *
    Navigable waters * * *
    (4) Applicability date. This definition is applicable beginning on 
[DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal 
Register].
* * * * *

PART 230--SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF 
DISPOSAL SITES FOR DREDGED OR FILL MATERIAL

0
13. The authority citation for part 230 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

0
14. Section 230.3 is amended by adding paragraph (o)(4) to read as 
follows:


Sec.  230.3  Definitions.

* * * * *
    (o) * * *
    (4) Applicability date. This paragraph (o) is applicable beginning 
on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE 
Federal Register].

PART 232--404 PROGRAM DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING 
404 PERMITS

0
15. The authority citation for part 232 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

0
16. Section 232.2 is amended by adding paragraph (4) to the definition 
of ``Waters of the United States'' to read as follows:


Sec.  232.2  Definitions.

* * * * *
    Waters of the United States * * *
    (4) Applicability date. This definition is applicable beginning on 
[DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal 
Register].

PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION 
CONTINGENCY PLAN

0
17. The authority citation for part 300 continues to read as follows:

    Authority:  33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 
77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 
CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., 
p. 193.

0
18. Section 300.5 is amended by adding paragraph (4) to the definition 
of ``Navigable waters'' to read as follows:

[[Page 55547]]

Sec.  300.5  Definitions.

* * * * *
    Navigable waters * * *
    (4) Applicability date. This definition is applicable beginning on 
[DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal 
Register].
* * * * *
0
19. In appendix E to part 300, section 1.5 Definitions is amended by 
adding paragraph (4) to the definition of ``Navigable waters'' to read 
as follows:

Appendix E to Part 300--Oil Spill Response

* * * * *
    1.5 * * *
    Navigable waters * * *
    (4) Applicability date. This definition is applicable beginning 
on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE 
Federal Register].
* * * * *

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

0
20. The authority citation for part 302 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

0
21. Section 302.3 is amended by adding paragraph (4) to the definition 
of ``Navigable waters'' to read as follows:


Sec.  302.3  Definitions.

* * * * *
    Navigable waters * * *
    (4) Applicability date. This definition is applicable beginning on 
[DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal 
Register].
* * * * *

PART 401--GENERAL PROVISIONS

0
22. The authority citation for part 401 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
23. Section 401.11 is amended by adding paragraph (1)(4) to read as 
follows:


Sec.  401.11  General definitions.

* * * * *
    (l) * * *
    (4) Applicability date. This paragraph (l) is applicable beginning 
on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE 
Federal Register].
* * * * *
[FR Doc. 2017-25321 Filed 11-21-17; 8:45 am]
 BILLING CODE 6560-50-P