[Federal Register Volume 76, Number 210 (Monday, October 31, 2011)]
[Notices]
[Page 67197]
[FR Doc No: 2011-28051]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2011-D-0739]

Small Entity Compliance Guide: Required Warnings for Cigarette
Packages and Advertisements; Availability; Correction

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice; correction.

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

SUMMARY: The Food and Drug Administration (FDA) is correcting a notice
that appeared in the Federal Register of October 25, 2011 (76 FR
66074). The document announced the availability of a guidance for
industry entitled ``Required Warnings for Cigarette Packages and
Advertisements--Small Entity Compliance Guide'' for a final rule that
published in the Federal Register of June 22, 2011 (76 FR 36628). The
notice published with an incorrect docket number. This document
corrects that error.

FOR FURTHER INFORMATION CONTACT: Joyce Strong, Office of Policy, Food
and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, rm. 3208,
Silver Spring, MD 20993-0002,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: In FR Doc. 2011-27530, appearing on page
66074, in the Federal Register of Tuesday, October 25, 2011, the
following correction is made:
    1. On page 66074, in the third column, in the Docket No. heading,
``[Docket No. FDA-2011-N-0568]'' is corrected to read ``[Docket No.
FDA-2011-D-0739]''.

    Dated: October 25, 2011.
Leslie Kux,
Acting Assistant Commissioner for Policy.
[FR Doc. 2011-28051 Filed 10-28-11; 8:45 am]
BILLING CODE 4160-01-P


[Federal Register Volume 88, Number 131 (Tuesday, July 11, 2023)]
[Rules and Regulations]
[Pages 44032-44033]
[FR Doc No: 2023-14576]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No.: FAA-2019-0218; Amdt. No. 25-151]
RIN 2120-AL15

High Elevation Airport Operations; Correction

AGENCY: Federal Aviation Administration (FAA), U.S. Department of
Transportation (DOT).

ACTION: Final rule; correction.

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

SUMMARY: On June 15, 2023, the FAA published a final rule titled ``High
Elevation Airport Operations''. That document made amendments to
certain airworthiness regulations applicable to cabin pressurization
systems and oxygen dispensing equipment on transport category
airplanes, to facilitate certification of those airplanes, systems, and
equipment for operation at high elevation airports, and inadvertently
identified the Amendment No. as 25-148. The correct Amendment No. is
25-151. This document makes that correction.

DATES:  Effective July 11, 2023.

FOR FURTHER INFORMATION CONTACT: Robert Hettman, Aircraft Systems
Section, AIR-623, Technical Innovation Policy Branch, Policy and
Innovation Division, Aircraft Certification Service, Federal Aviation
Administration, 2200 S 216th Street, Des Moines, Washington 98198;
telephone and facsimile<PHONE_NUMBER>; email [email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    A copy of the High Elevation Airport Operations final rule may be
viewed online at https://www.regulations.gov using the docket number
listed above. A copy of this correction will be placed in the same
docket. Electronic retrieval help and guidelines are available on the
website. It is available 24 hours each day, 365 days each year. An
electronic copy of this document may also be downloaded from the Office
of the Federal Register's website at https://www.federalregister.gov
and the Government Publishing Office's website at https://www.govinfo.gov. A copy may also be found at the FAA's Regulations and
Policies website at https://www.faa.gov/regulations_policies.
    Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling<PHONE_NUMBER>.
Commenters must identify the docket or notice number of this
rulemaking.
    All documents the FAA considered in developing this correction,
including economic analyses and technical reports, may be accessed in
the electronic docket for this rulemaking.

Background

    On June 15, 2023, the High Elevation Airport Operations final rule
(RIN 2120-AL15) published in the Federal Register at 88 FR 39152. After
publication, the FAA discovered that it inadvertently identified the
Amendment No. for part 25 as 25-148. The correct Amendment No. is 25-
151. This document makes that correction.

Correction

    In FR Doc. 2023-12454, beginning on page 39152, in the Federal
Register of

June 15, 2023, make the following correction in the header of the
document. On page 39152, in the first column, in the header of the
document, the listing of docket number and amendment no. is corrected
to read as follows:

[Docket No.: FAA-2019-0218; Amdt. No. 25-151]

    Issued under authority provided by 49 U.S.C. 106(f), 44701(a),
and 44703 in Washington, DC.
Brandon Roberts,
Executive Director, Office of Rulemaking.
[FR Doc. 2023-14576 Filed 7-10-23; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 86, Number 124 (Thursday, July 1, 2021)]
[Notices]
[Page 35120]
[FR Doc No: 2021-14089]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-4595-DR; Docket ID FEMA-2021-0001]

Kentucky; Amendment No. 3 to Notice of a Major Disaster
Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice amends the notice of a major disaster declaration
for the Commonwealth of Kentucky (FEMA-4595-DR), dated April 23, 2021,
and related determinations.

DATES: This amendment was issued May 27, 2021.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The notice of a major disaster declaration
for the Commonwealth of Kentucky is hereby amended to include the
following areas among those areas determined to have been adversely
affected by the event declared a major disaster by the President in his
declaration of April 23, 2021.

    Anderson, Fayette, Jessamine, Laurel, Madison, Warren, and
Woodford Counties for Individual Assistance.
    Boyd, Clark, Franklin, Greenup, Jackson, Knott, Lawrence,
Leslie, Letcher, Lincoln, Morgan, Owsley, Perry, Pulaski, and
Rockcastle Counties for Individual Assistance (already designated
for Public Assistance).

    The following Catalog of Federal Domestic Assistance Numbers
(CFDA) are to be used for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis
Counseling; 97.033, Disaster Legal Services; 97.034, Disaster
Unemployment Assistance (DUA); 97.046, Fire Management Assistance
Grant; 97.048, Disaster Housing Assistance to Individuals and
Households In Presidentially Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance--Disaster Housing
Operations for Individuals and Households; 97.050 Presidentially
Declared Disaster Assistance to Individuals and Households--Other
Needs; 97.036, Disaster Grants--Public Assistance (Presidentially
Declared Disasters); 97.039, Hazard Mitigation Grant.

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2021-14089 Filed 6-30-21; 8:45 am]
BILLING CODE 9111-23-P


[Federal Register Volume 82, Number 144 (Friday, July 28, 2017)]
[Notices]
[Pages 35192-35194]
[FR Doc No: 2017-15911]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. CP15-554-000, CP15-554-001, CP15-555-000, CP15-556-000]

Atlantic Coast Pipeline, LLC, Dominion Energy Transmission, Inc.,
Piedmont Natural Gas Company, Inc.; Notice of Availability of the Final
Environmental Impact Statement for the Proposed Atlantic Coast Pipeline
and Supply Header Project

    The staff of the Federal Energy Regulatory Commission (FERC or
Commission) has prepared a final environmental impact statement (EIS)
for the Atlantic Coast Pipeline (ACP) and Supply Header Project (SHP)
as proposed by Atlantic Coast Pipeline, LLC (Atlantic) and Dominion
Energy Transmission, Inc. (DETI), respectively, in the above-referenced
dockets. Atlantic and DETI request authorization to construct and
operate a total of 642.0 miles of natural gas transmission pipeline and
associated facilities, and three new natural gas-fired compressor
stations; and to modify four existing compressor stations. The projects
would provide about 1.44 billion cubic feet per day of natural gas to
electric generation, distribution, and end use markets in Virginia and
North Carolina. In addition, Atlantic and Piedmont Natural Gas. Co.,
Inc. (Piedmont) request authorization to allow Atlantic to lease
capacity on Piedmont's existing pipeline distribution system in North
Carolina for use by Atlantic (Capacity Lease Proposal). No construction
or facility modifications are proposed with the Capacity Lease.
    The final EIS assesses the potential environmental effects of the
construction and operation of the projects in accordance with the
requirements of the National Environmental Policy Act (NEPA). The FERC
staff concludes that approval of the projects would have some adverse
and significant environmental impacts; however, the majority of impacts
would be reduced to less-than-significant levels with the
implementation of the Atlantic's and DETI's proposed

mitigation and the additional measures recommended in the EIS.
    The U.S. Department of Agriculture--Forest Service (FS); U.S. Army
Corps of Engineers; U.S. Environmental Protection Agency; U.S. Fish and
Wildlife Service; West Virginia Department of Environmental Protection;
and West Virginia Division of Natural Resources participated as
cooperating agencies in the preparation of the final EIS. Cooperating
agencies have jurisdiction by law or special expertise with respect to
resources potentially affected by the proposals and participate in the
NEPA analysis. Further, the FS may use the EIS when it considers
amendments to Land and Resource Management Plans (LRMPs) and
authorizations for special use permits (SUPs) for the proposed
crossings of the Monongahela National Forest (MNF) and George
Washington National Forest (GWNF). Although the cooperating agencies
provide input to the conclusions and recommendations presented in the
final EIS, each agency may present its own conclusions and
recommendations in its respective record of decision or determination
for the projects.
    The final EIS addresses the potential environmental effects of the
construction and operation of the following project facilities:
    ACP would include:
     519.7 miles of new 42- and 36-inch-diameter natural gas
pipeline in West Virginia, Virginia, and North Carolina;
     84.8 miles of 20- and 16-inch-diameter natural gas
pipeline in Virginia and North Carolina;
     three new compressor stations in Lewis County, West
Virginia; Buckingham County, Virginia; and Northampton County, North
Carolina; and
     nine meter stations, along with pig \1\ launchers/
receivers and mainline valves.
---------------------------------------------------------------------------

    \1\ A pipeline pig is a device used to clean or inspect a
pipeline. A pig launcher/receiver is an aboveground facility where
pigs are inserted or retrieved from the pipeline.
---------------------------------------------------------------------------

    SHP would include:
     37.5 miles of new 30-inch-diameter natural gas pipeline in
Pennsylvania and West Virginia;
     modifications at four existing compressor stations in
Westmoreland and Green Counties, Pennsylvania and Marshall and Wetzel
Counties, West Virginia;
     abandonment of existing compressor units and associated
facilities in Wetzel County, West Virginia; and
     one meter station, along with pig launchers/receivers and
mainline valves.

Actions of the Forest Service

    The FS's purpose and need for the proposed action is to respond to
a special use application submitted by Atlantic on November 12, 2015,
to allow the construction and operation of ACP on National Forest
System (NFS) lands managed by the MNF and GWNF. If the FS decides to
authorize the pipeline crossing of NFS lands and issue SUPs, the FS has
determined that amendments to each national forest LRMP would be
needed.
    Pursuant to Title 40 Code of Federal Regulations Part 1506.3(c) (40
CFR 1506.3(c)), the FS may adopt and use this EIS developed by FERC to
consider authorization for the construction and operation of the ACP
crossing NFS lands. Further, the FS may use this EIS when it considers
amendments to the LRMPs that would be required for the proposed
crossings of the MNF and GWNF.

Forest Service's Draft Record of Decision

    After issuance of the final EIS, the FS will release a single draft
Record of Decision (ROD) for the authorization of a SUP to Atlantic for
use of and to occupy NFS lands to construct, operate, maintain, and
eventually decommission a natural gas pipeline that crosses lands
administered by the MNF and GWNF; and for approval of the project-
specific LRMP amendments associated with implementing the ACP on the
MNF and the GWNF. The Regional Foresters (RFs) in the Eastern Region
(for the MNF) and the Southern Region (for the GWNF) will be the
responsible officials for the ROD. The RF for the Eastern Region has
determined that two parts of the MNF LRMP, where four standards would
be modified by a Forest Plan amendment (section 4.8 of the final EIS),
meet the substantive requirements of the FS planning regulations (36
CFR 219) and could be implemented without impairing the long-term
productivity of NFS lands. Similarly, the RF for the Southern Region
has determined that six parts of the GWNF LRMP, where nine standards
would be modified by a Forest Plan amendment, meet the substantive
requirements of the FS planning regulations and could be implemented
without impairing the long-term productivity on NFS lands. With the
amended LRMPs, the ACP would be consistent with both Forests' LRMPs.
This draft ROD will be based on a review of the environmental analysis
disclosed in the final EIS; the project record; Atlantic's proposed
Construction, Operation, and Maintenance Plan; comments received from
the public, partners, and other agencies; and consideration of the 36
CFR 219 requirements for amending a Forest Plan.
    The draft ROD is subject to the FS pre-decision objection process
pursuant to the provisions available at 36 CFR part 218, subparts A and
B (published in the Federal Register Vol. 78, No. 59 at 18481 [March
27, 2013]). Objections to the FS draft ROD on the authorization of the
pipeline and the LRMP amendments must be filed within 45 calendar days
from the publication date of the legal notice of the opportunity to
object in The Milwaukee Journal/Sentinel and Atlanta Journal-
Constitution, which are the newspapers of RODs made by the Eastern
Region and Southern Region RFs. Notices will also be published in the
Inter-Mountain and The Roanoke Times for local notification of the FS
draft ROD. The legal notices will contain the details of the objection
process. The FS must respond to all objections received before it makes
a final decision.
    A copy of the FS draft ROD and the legal notices for objections can
be obtained by any of the following methods:
    For the GWNF:
     Internet Web site: http://www.fs.usda.gov/gwj;
     Email<EMAIL_ADDRESS>or
     Regular mail: Karen Overcash, George Washington and
Jefferson National Forests, 5162 Valleypointe Parkway, Roanoke, VA
24019; telephone:<PHONE_NUMBER>.
    For the MNF:
     Internet Web site: http://www.fs.usda.gov/mnf;
     Email<EMAIL_ADDRESS>or
     Regular mail: Karen Stevens, Monongahela National Forest,
200 Sycamore Street, Elkins, WV 26241; telephone<PHONE_NUMBER>.

Distribution of the Final Environmental Impact Statement

    The FERC staff mailed copies of the final EIS to federal, state,
and local government representatives and agencies; elected officials;
environmental and public interest groups; Native American tribes;
potentially affected landowners and other interested individuals and
groups; newspapers and libraries in the project area; and parties to
this proceeding. Paper copy versions of this final EIS were mailed to
those specifically requesting them; all others received a CD version.
In addition, the final EIS is available for public viewing on the

FERC's Web site (www.ferc.gov) using the eLibrary link. A limited
number of copies of the final EIS are available for distribution and
public inspection at: Federal Energy Regulatory Commission, Public
Reference Room, 888 First Street NE., Room 2A, Washington, DC 20426
(202) 502-8371.
    Additional information about the projects is available from the
Commission's Office of External Affairs, at (866) 208-FERC, or on the
FERC Web site (www.ferc.gov) using the eLibrary link. Click on the
eLibrary link, click on General Search, and enter the docket number
excluding the last three digits in the Docket Number field (i.e., CP15-
554, CP15-555, or CP15-556). Be sure you have selected an appropriate
date range. For assistance, please contact FERC Online Support at
<EMAIL_ADDRESS>or toll free at<PHONE_NUMBER>; for TTY,
contact<PHONE_NUMBER>. The eLibrary link also provides access to the
texts of formal documents issued by the Commission, such as orders,
notices, and rulemakings.
    In addition, the Commission offers a free service called
eSubscription that allows you to keep track of all formal issuances and
submittals in specific dockets. This can reduce the amount of time you
spend researching proceedings by automatically providing you with
notification of these filings, document summaries, and direct links to
the documents. Go to www.ferc.gov/docs-filing/esubscription.asp to
subscribe.

    Dated: July 21, 2017.
Kimberly D. Bose,
Secretary.
[FR Doc. 2017-15911 Filed 7-27-17; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register: November 28, 2008 (Volume 73, Number 230)]
[Notices]
[Page 72496-72497]
[DOCID:fr28no08-98]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

Agency Information Collection Activities: Proposed Collection;
Comment Request

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice; 60-day notice and request for comments; Revision of a
currently approved collection, OMB Number 1660-0068, FEMA Form, 516-1.

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SUMMARY: The Federal Emergency Management Agency, as part of its
continuing effort to reduce paperwork and respondent burden, invites
the general public and other Federal agencies to take this opportunity
to comment on a continuing information collection. In accordance with
the Paperwork Reduction Act of 1995, this notice seeks comments
concerning the collection of information regarding the existence of
smoke detectors and sprinkler systems within hotels and motels.

SUPPLEMENTARY INFORMATION: The information within Public Law 101-391
requires FEMA to establish and maintain a national master list of fire
safety in hotels, motels and other places of public accommodation
(property). The purpose of this public law is to assure the traveling
public of fire safe accommodations and resulted from a number of high-
loss fires that occurred in the past.

Collection of Information

    Title: Federal Hotel and Motel Fire Safety Declaration Form.
    Type of Information Collection: Revision of a currently approved
collection.
    OMB Number: 1660-0068.
    Form Numbers: FEMA Form 516-1.
    Abstract: FEMA will be collecting information from hotels and
motels regarding the existence of smoke detectors and sprinkler systems
in their buildings. FEMA is required to maintain a list of
establishments that provide transient lodging with certification in
place that they meet the requirements of the Hotel and Motel Fire
Safety Act of 1990. This information is used to provide interested
parties with a list of compliant hotels and motels, and it certifies
that the business can be utilized by Federal Government employees for
work-related lodging.
    Affected Public: Business or other For-Profit, State, local or
Tribal Government.
    Estimated Total Annual Burden Hours: 718 hours.

                                                 Table A.12--Estimated Annualized Burden Hours and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Number of
                                                               Number of     responses      Avg. burden per     Total annual   Avg. hourly  Total annual
         Type of respondent           Form name/form number   respondents       per       response  (in hours)   burden  (in    wage rate    respondent
                                                                            respondent                             hours)                       cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Business or other For-Profit.......  Federal Hotel and              2,000             1  15 Minutes (.25 Hour)           500        $23.47    $11,735.00
                                      Motel Fire Safety
                                      Declaration Form/FEMA
                                      Form 516-1.
State, local or Tribal Government..  Review of FEMA Form               20            33  20 Minutes (.33 Hour)           218         26.84      5,851.12
                                      516-1.
                                                            --------------------------------------------------------------------------------------------
    Total..........................  ......................         2,020  ............  35 Minutes (.58 Hour)           718  ............     17,586.12
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Estimated Cost: The estimated annualized cost to respondents based
on wage rate categories is $17,586.12. The estimated annual cost to the
Federal Government is $57,000.
    Comments: Written comments are solicited to (a) evaluate whether
the proposed data collection is necessary for the proper performance of
the agency, including whether the information shall have practical
utility; (b) evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used; (c) enhance the
quality, utility, and clarity of the information to be collected; and
(d) minimize the burden of the collection of information on those who
are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses. Comments must be submitted on or before
January 27, 2009.
ADDRESSES: Interested persons should submit written comments to Office
of Management, Records Management Division, Federal Emergency
Management Agency, 500 C Street, SW., Washington, DC 20472, Mail Drop
Room 301.

FOR FURTHER INFORMATION CONTACT: Contact Tim Ganley, USFA Fire Program
Specialist, United States Fire Administration, FEMA,<PHONE_NUMBER> for
additional information. You may contact the Records Management Branch
for copies of the proposed collection of information at facsimile
number<PHONE_NUMBER> or e-mail address: FEMA-Information-
<EMAIL_ADDRESS>
Alisa Turner,
Acting Director, Records Management Division, Office of Management,
Federal Emergency Management Agency, Department of Homeland Security.
[FR Doc. E8-28338 Filed 11-26-08; 8:45 am]

BILLING CODE 9110-17-P


[Federal Register Volume 76, Number 133 (Tuesday, July 12, 2011)]
[Notices]
[Pages 40973-40974]
[FR Doc No: 2011-17429]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64823; File No. SR-NYSEArca-2011-42]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Correcting the
Numbering of a Recently Adopted NYSE Arca Equities Rule

July 6, 2011.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that, on June 30, 2011, NYSE Arca, Inc. (the ``Exchange'' or ``NYSE
Arca'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the Exchange. The Commission
is publishing this notice to solicit comments on the proposed rule
change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to correct the numbering of a recently
adopted NYSE Arca Equities Rule. The text of the proposed rule change
is available at the Exchange, at http://www.nyse.com, at the
Commission's Public Reference Room, and at the Commission's Web site at
http://www.sec.gov.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to correct the numbering of a recently
adopted NYSE Arca Equities Rule. Specifically, the Exchange recently
codified outbound and inbound routing functions performed by its
affiliate broker-dealer, Archipelago Securities LLC (``Arca
Securities''), in Section 4 of Rule 7. The Exchange inadvertently mis-
numbered the new NYSE Arca Equities Rule as 7.41 when it should have
been 7.45.
    NYSE Arca Equities Rule 7.41--pertaining to clearance and
settlement--already appears in Section 3 of Rule 7.\3\ The Exchange
hereby proposes to correct the inadvertent mis-numbering to reflect the
new routing broker function rule as NYSE Arca Equities Rule 7.45.
---------------------------------------------------------------------------

    \3\ The Exchange, through SR-NYSEArca-2011-38, did not intend or
propose to change the meaning, interpretation or enforcement of Rule
7.41 (Clearing and Settlement) within Section 3 of Rule 7.
---------------------------------------------------------------------------

2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) \4\ of the
Act, in general, and furthers the objectives of Section 6(b)(5),\5\ in
particular, in that it is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to foster cooperation and coordination with
persons engaged in facilitating transactions in securities, to remove
impediments to and perfect the mechanism of a free and open market and
a national market system and, in general, to protect investors and the
public interest. The Exchange believes that the proposed rule change,
which would correct the inadvertent mis-numbering of a new Exchange
Rule, would avoid confusion that could result from having two separate
rules numbered as Rule 7.41 and instead reflect the Exchange's
intention to adopt the routing broker function rule as NYSE Arca
Equities Rule 7.45.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78f(b).
    \5\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the proposed rule change: (i) Does not significantly affect
the protection of investors or the public interest; (ii) does not
impose any significant burden on competition; and (iii) does not become
operative for 30 days after the date of the filing, or such shorter
time as the Commission may designate if consistent with the protection
of investors and the public interest, the proposed rule change has
become effective pursuant to Section 19(b)(3)(A) of the Act \6\ and
Rule 19b-4(f)(6) thereunder.\7\
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78s(b)(3)(A).
    \7\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    A proposed rule change filed under 19b-4(f)(6) normally may not
become operative prior to 30 days after the date of filing.\8\ However,
Rule 19b-4(f)(6)(iii) \9\ permits the Commission to designate a shorter
time if such action is consistent with the protection of investors and
the public interest. The Exchange requests that the Commission waive
the 30-day operative delay. The Exchange believes that waiver of the
30-day operative delay would provide more clarity and transparency in
its rule text concerning all of the functions that Arca Securities
performs on behalf of the Exchange without undue delay. For these
reason, the Commission believes that waiving the 30-day operative delay
is consistent with the protection of investors and the public interest,
and designates the proposed rule change to be operative upon filing
with the Commission.\10\
---------------------------------------------------------------------------

    \8\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires that a self-regulatory organization submit to
the Commission written notice of its intent to file the proposed
rule change, along with a brief description and text of the proposed
rule change, at least five business days prior to the date of filing
of the proposed rule change, or such shorter time as designated by
the Commission. The Exchange has satisfied this requirement.
    \9\ Id.
    \10\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NYSEArca-2011-42 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEArca-2011-42. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for Web site
viewing and printing in the Commission's Public Reference Room, 100 F
Street, NE., Washington, DC 20549, on official business days between
the hours of 10 a.m. and 3 p.m. Copies of the filing also will be
available for inspection and copying at the principal office of the
Exchange. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
NYSEArca-2011-42 and should be submitted on or before August 2, 2011.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-17429 Filed 7-11-11; 8:45 am]
BILLING CODE 8011-01-P


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

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

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

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

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

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

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

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

2002 0050.

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

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

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

SUPPLEMENTARY INFORMATION:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Attention Docket ID No. OW 2002 0050.

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

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

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

a. Explain your views as clearly as possible.

b. Describe any assumptions that you used.

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

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

e. Provide specific examples to illustrate your concerns.

f. Offer alternatives.

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

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

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

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

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

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

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

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

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

·

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

·

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

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

·

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

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

·

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

·

§ Section 402 National Pollutant Discharge Elimination System ( NPDES)

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

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

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

411) and the Federal Water Pollution Control Act of 1948 ( 62 Stat. 1155) and its subsequent amendments through 1970. In doing so, Congress recognized " the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use ( including restoration, preservation, and enhancement) of land and water resources . . . ." 33 U. S. C. § section 1251( b).

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

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

( 1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to ebb and flow of the tide;

( 2) All interstate waters including interstate wetlands;

( 3) All other waters such as intrastate lakes, rivers, streams ( including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

( i) which are or could be used by interstate or foreign travelers for recreational or other purposes; or  14 ( ii) from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or ( iii) which are used or could be used for industrial purposes by industries in interstate commerce.

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

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

( 6) The territorial seas;

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

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

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

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

Counterpart and substantively similar regulatory definitions appear at 40 CFR 110.1, 112.2,

116.3, 117.1, 122.2, 232.2, 300.5, part 300 App. E, 302.3 and 401.11 ( hereafter referred to as " the counterpart definitions").

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

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

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

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

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

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

531 U. S. at 167.

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

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

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

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

nonnavigable waters.

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

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

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

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

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

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

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

nonnavigable waters?

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

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

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

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

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

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

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

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

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

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

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

" bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man made dikes or barriers, natural river berms, beach dunes, and the like are ` adjacent wetlands.'"

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

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

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

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

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

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

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

?

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

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

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

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

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

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

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

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

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

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

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

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

( Page 20 of 32)

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

Dated: Dated:

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

_________________________ __________________________

Christine Todd Whitman, George SR. L. DunlopBrownlee,

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

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

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

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

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

In SWANCC, the Supreme Court recognized that " Congress passed the CWA for the stated purpose of ` restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters'" and also noted that " Congress chose to ` recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use ( including restoration, preservation, and enhancement) of land and water resources.'" Id. at 166 67 ( citing 33 U. S. C. § 1251( a) and ( b)). However, expressing " serious constitutional and federalism questions" raised by the Corps' interpretation of the CWA, the Court stated that " where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result." Id. at 174,

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

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

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

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

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

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

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

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

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

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

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

CWA § 502( 7).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

( ditches and culverts with intermittent flow not jurisdictional).

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

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

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

_____________________________ _____________________________

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

Environmental Protection Agency Department of the Army