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§ 1794.51 Preparation for scoping. part. If RUS determines the action is not State resource agencies on the (a) As soon as practicable after RUS significant, RUS will proceed in implications of the SWANCC decision and the applicant have developed a accordance with §§ 1794.42 through for jurisdictional decisions under the schedule for the environmental review 1794.44, except that RUS shall have a CWA. The goal of the agencies is to process, RUS shall have its notice of notice published in the Federal Register develop proposed regulations that will intent to prepare an EA or EIS and that announces the availability of the further the public interest by clarifying schedule scoping meetings (§ 1794.13) EA and FONSI. what waters are subject to CWA published in the Federal Register (see jurisdiction and affording full protection 40 CFR 1508.22). The applicant shall § 1794.61 [Amended] to these waters through an appropriate have published, in a timely manner, a 17. Section 1794.61 is amended by: focus of Federal and State resources notice similar to RUS’ notice. A. Removing paragraph (b). consistent with the CWA. The input B. Redesignating paragraph (a) as the received from the public in response to * * * * * introductory text; paragraph (a)(1) as (a); 14. Section 1794.52(d) is amended by today’s ANPRM will be used by the paragraph (a)(2) as (b); and paragraph removing the last sentence and adding agencies to determine the issues to be (a)(3) as (c). a new sentence at the end of the addressed and the substantive approach paragraph to read as follows: Dated: December 24, 2002. for a future proposed rulemaking Blaine D. Stockton, addressing the scope of CWA § 1794.52 Scoping meetings. Acting Administrator, Rural Utilities Service. jurisdiction. * * * * * [FR Doc. 03–713 Filed 1–14–03; 8:45 am] Pending this rulemaking, should (d) * * * The applicant or its BILLING CODE 3410–15–P questions arise, the regulated consultant shall prepare a record of the community should seek assistance from scoping meeting. The record shall the Corps and EPA, in accordance with consist of a transcript when a traditional DEPARTMENT OF DEFENSE the joint memorandum attached as meeting format is used or a summary Appendix A. report when an open house format is Department of the Army, Corps of DATES: In order to be considered, used. Engineers comments or information in response to * * * * * this ANPRM must be postmarked or e- 15. Section 1794.53 is revised to read 33 CFR Part 328 mailed on or before March 3, 2003. as follows: ADDRESSES: Comments may be § 1794.53 Environmental report. ENVIRONMENTAL PROTECTION submitted electronically, by mail, or AGENCY through hand delivery/courier. Mail (a) After scoping procedures have comments to: Water Docket, been completed, RUS shall require the 40 CFR Parts 110, 112, 116, 117, 122, Environmental Protection Agency, applicant to develop and submit an ER. 230, 232, 300, and 401 Mailcode 4101T, 1200 Pennsylvania The ER shall be prepared under the Ave., NW., Washington, DC 20460, supervision and guidance of RUS staff [FRL–7439–8] Attention Docket ID No. OW–2002– and RUS shall evaluate and be RIN 2040–AB74 0050. responsible for the accuracy of all information contained therein. Advance Notice of Proposed FOR FURTHER INFORMATION CONTACT: For (b) The applicant’s ER will normally Rulemaking on the Clean Water Act information on this ANPRM, contact serve as the RUS EA. After RUS has Regulatory Definition of ‘‘Waters of the either Donna Downing, U.S. reviewed and found the ER to be United States’’ Environmental Protection Agency, satisfactory, the applicant shall provide Office of Wetlands, Oceans and RUS with a sufficient number of copies AGENCIES: U.S. Army Corps of Watersheds (4502T), 1200 Pennsylvania of the ER to satisfy the RUS distribution Engineers, Department of the Army, Avenue N.W., Washington, DC 20460, plan. DOD; and Environmental Protection phone: (202) 566–1366, e-mail: (c) The ER shall include a summary Agency. [email protected], or Ted Rugiel, of the construction and operation ACTION: Advance notice of proposed U.S. Army Corps of Engineers, ATTN monitoring and mitigation measures for rulemaking. CECW–OR, 441 G Street NW., the proposed action. These measures Washington, DC 20314–1000, phone: may be revised as appropriate in SUMMARY: The U.S. Army Corps of (202) 761–4595, e-mail: response to comments and other Engineers (Corps) and the Thaddeus.J.Rugiel@ information, and shall be incorporated Environmental Protection Agency (EPA) HQ02.USACE.ARMY.MIL. are today issuing an advance notice of by summary or reference into the SUPPLEMENTARY INFORMATION: FONSI. proposed rulemaking (ANPRM) in order 16. Section 1794.54 is revised to read to obtain early comment on issues I. General Information as follows: associated with the scope of waters that are subject to the Clean Water Act A. Potentially Regulated Entities § 1794.54 Agency determination. (CWA), in light of the U.S. Supreme Persons or entities that discharge Following the scoping process and the Court decision in Solid Waste Agency of pollutants (including dredged or fill development of a satisfactory ER by the Northern Cook County v. U.S. Army material) to ‘‘waters of the U.S.’’ could applicant or its consultant that will Corps of Engineers, 531 U.S. 159 (2001) be regulated by a rulemaking based on serve as the agency’s EA, RUS shall (SWANCC). this ANPRM. The CWA generally determine whether the proposed action Today’s ANPRM requests public prohibits the discharge of pollutants is a major Federal action significantly input on issues associated with the into ‘‘waters of the U.S.’’ without a affecting the quality of the human definition of ‘‘waters of the United permit issued by EPA or a State or Tribe environment. If RUS determines the States’’ and also solicits information or approved by EPA under section 402 of action is significant, RUS will continue data from the general public, the the Act, or, in the case of dredged or fill with the procedures in subpart G of this scientific community, and Federal and material, by the Corps or an approved

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State or Tribe under section 404 of the B. How Can I Get Copies of This EPA’s policy is that public comments, Act. In addition, under the CWA, States Document and Other Related whether submitted electronically or in or approved Tribes establish water Information? paper, will be made available for public quality standards for ‘‘waters of the 1. Docket. The agencies have viewing in EPA’s electronic public U.S.’’, and also may assume established an official public docket for docket as EPA receives them and responsibility for issuance of CWA this action under Docket ID No. OW– without change, unless the comment permits for discharges into waters and 2002–0050. The official public docket contains copyrighted material, CBI, or wetlands subject to the Act. Today’s consists of the documents specifically other information whose disclosure is ANPRM seeks public input on what, if referenced in this ANPRM, any public restricted by statute. When EPA identifies a comment containing any, revisions in light of SWANCC comments received, and other might be appropriate to the regulations copyrighted material, EPA will provide information related to this ANPRM. that define ‘‘waters of the U.S.’’, and a reference to that material in the Although a part of the official docket, today’s ANPRM thus would be of version of the comment that is placed in the public docket does not include interest to all entities discharging to, or EPA’s electronic public docket. The Confidential Business Information (CBI) regulating, such waters. In addition, entire printed comment, including the or other information whose disclosure is because the Oil Pollution Act (OPA) is copyrighted material, will be available restricted by statute. The official public applicable to waters and wetlands in the public docket. docket is the collection of materials that subject to the CWA, today’s ANPRM Public comments submitted on is available for public viewing at the may have implications for persons or computer disks that are mailed or Water Docket in the EPA Docket Center, entities subject to the OPA. Examples of delivered to the docket will be entities potentially regulated include: (EPA/DC) EPA West, Room B102, 1301 transferred to EPA’s electronic public Constitution Ave., NW., Washington, docket. Public comments that are Examples of DC. The EPA Docket Center Public mailed or delivered to the Docket will Category potentially regulated Reading Room is open from 8:30 a.m. to be scanned and placed in EPA’s entities 4:30 p.m., Monday through Friday, electronic public docket. Where excluding legal holidays. The telephone practical, physical objects will be State/Tribal govern- State/Tribal agencies number for the Public Reading Room is ments or instru- or instrumentalities photographed, and the photograph will mentalities. that discharge or (202) 566–1744, and the telephone be placed in EPA’s electronic public spill pollutants into number for the Water Docket is (202) docket along with a brief description waters of the U.S. 566–2426. You may have to pay a written by the docket staff. Local governments or Local governments or reasonable fee for copying. instrumentalities. instrumentalities 2. Electronic Access. You may access C. How and To Whom Do I Submit that discharge or this Federal Register document Comments? spill pollutants into electronically through the EPA Internet You may submit comments waters of the U.S. under the Federal Register listings at electronically, by mail, or through hand Federal government Federal government http://www.epa.gov/fedrgstr/. agencies or instru- agencies or instru- delivery/courier. To ensure proper mentalities. mentalities that dis- An electronic version of the public receipt by EPA, identify the appropriate charge or spill pol- docket is available through EPA’s docket identification number (OW– lutants into waters electronic public docket and comment 2002–0050) in the subject line on the of the U.S. system, EPA Dockets. You may use EPA first page of your comment. Please Industrial, commer- Industrial, commer- Dockets at http://www.epa.gov/edocket ensure that your comments are cial, or agricultural cial, or agricultural to submit or view public comments, submitted within the specified comment entities. entities that dis- access the index listing of the contents period. Comments received after the charge or spill pol- of the official public docket, and to close of the comment period will be lutants into waters access those documents in the public marked late. The agencies are not of the U.S. Land developers and Land developers and docket that are available electronically. required to consider these late landowners. landowners that Once in the system, select search, then comments. discharge or spill key in the appropriate docket 1. Electronically. If you submit an pollutants into wa- identification number. electronic comment as prescribed ters of the U.S. Certain types of information will not below, EPA recommends that you be placed in the EPA Dockets. include your name, mailing address, This table is not intended to be Information claimed as CBI and other and an e-mail address or other contact exhaustive, but rather provides a guide information whose disclosure is information in the body of your for readers regarding entities that are restricted by statute, which is not comment. Also include this contact likely to be regulated by a rulemaking included in the official public docket, information on the outside of any disk based on this ANPRM. This table lists will not be available for public viewing or CD ROM you submit, and in any the types of entities that we are now in EPA’s electronic public docket. EPA’s cover letter accompanying the disk or aware of that could potentially be policy is that copyrighted material will CD ROM. This ensures that you can be regulated. Other types of entities not not be placed in EPA’s electronic public identified as the submitter of the listed in the table could also be docket but will be available only in comment and allows EPA to contact you regulated. To determine whether your printed, paper form in the official public in case EPA cannot read your comment organization or its activities could be docket. Although not all docket due to technical difficulties or needs regulated, you should carefully examine materials may be available further information on the substance of the discussion in this ANPRM. If you electronically, you may still access any your comment. EPA’s policy is that EPA have questions regarding the of the publicly available docket will not edit your comment, and any applicability of this action to a materials through the docket facility identifying or contact information particular entity, consult one of the identified in I.B.1. provided in the body of a comment will persons listed in the preceding FOR For those who submit public be included as part of the comment that FURTHER INFORMATION CONTACT section. comments, it is important to note that is placed in the official public docket,

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and made available in EPA’s electronic a. Explain your views as clearly as • Section 404 dredged and fill public docket. If EPA cannot read your possible. material permit program. This program comment due to technical difficulties b. Describe any assumptions that you establishes a permitting system to and cannot contact you for clarification, used. regulate discharges of dredged or fill the agencies may not be able to consider c. Provide any technical information material into waters of the United your comment. and/or data on which you based your States. i. EPA Dockets. Your use of EPA’s views. • Section 303 water quality standards electronic public docket to submit d. If you estimate potential burden or program. Under this program, States comments to EPA electronically is costs, explain how you arrived at your and authorized Indian Tribes establish EPA’s preferred method for receiving estimate. water quality standards for navigable comments. Go directly to EPA Dockets e. Provide specific examples to waters to ‘‘protect the public health or at http://www.epa.gov/edocket, and illustrate your concerns. welfare’’ and ‘‘enhance the quality of f. Offer alternatives. follow the online instructions for water’’, ‘‘taking into consideration their g. Make sure to submit your submitting comments. Once in the use and value for public water supplies, comments by the comment period system, select search, and then key in propagation of fish and wildlife, deadline identified. recreational purposes, and agriculture, Docket ID No. OW–2002–0050. The h. To ensure proper receipt by EPA, system is an anonymous access system, industrial, and other purposes, and also identify the appropriate docket taking into consideration their use and which means EPA will not know your identification number in the subject line identity, e-mail address, or other contact value for navigation.’’ on the first page of your response. It • Section 311 spill program and the information unless you provide it in the would also be helpful if you provided body of your comment. Oil Pollution Act (OPA). Section 311 of the name, date, and Federal Register the CWA addresses pollution from both ii. E-mail. Comments may be sent by citation related to your comments. oil and hazardous substance releases. electronic mail (e-mail) to Together with the Oil Pollution Act, it [email protected], Attention Docket II. The Importance of Updating the provides EPA and the U.S. Coast Guard ID No. OW–2002–0050. In contrast to Regulations with the authority to establish a EPA’s electronic public docket, EPA’s e- The agencies have not engaged in a program for preventing, preparing for, mail system is not an anonymous access review of the regulations with the and responding to spills that occur in system. If you send an e-mail comment public concerning CWA jurisdiction for navigable waters of the United States. directly to the Docket without going some time. This ANPRM will help • Section 401 State water-quality through EPA’s electronic public docket, ensure that the regulations are certification program. Section 401 EPA’s e-mail system automatically consistent with the CWA and the public provides that no Federal permit or captures your e-mail address. E-mail understands what waters are subject to license for activities that might result in addresses that are automatically CWA jurisdiction. The goal of the a discharge to navigable waters may be captured by EPA’s e-mail system are agencies is to develop proposed issued unless a section 401 water- included as part of the comment that is regulations that will further the public quality certification is obtained from or placed in the official public docket, and interest by clarifying what waters are waived by States or authorized Tribes. made available in EPA’s electronic subject to CWA jurisdiction and • Section 402 National Pollutant public docket. affording full protection to these waters Discharge Elimination System (NPDES) iii. Disk or CD ROM. You may submit through an appropriate focus of Federal permitting program. This program comments on a disk or CD ROM that and State resources consistent with the establishes a permitting system to you mail to the mailing address CWA. It is appropriate to review the regulate point source discharges of identified in I.C.2. These electronic regulations to ensure that they are pollutants (other than dredged or fill submissions will be accepted in consistent with the SWANCC decision. material) into waters of the United WordPerfect or ASCII file format. Avoid SWANCC eliminates CWA jurisdiction States. the use of special characters and any over isolated waters that are intrastate form of encryption. and non-navigable, where the sole basis III. Legislative and Regulatory Context 2. By Mail. Send four copies of your for asserting CWA jurisdiction is the The Federal Water Pollution Control comments to: Water Docket, actual or potential use of the waters as Act Amendments, now known as the Environmental Protection Agency, habitat for migratory birds that cross Clean Water Act (CWA), was enacted in Mailcode 4101T, 1200 Pennsylvania State lines in their migrations. SWANCC 1972. In the years since its enactment, Ave., NW, Washington, DC 20460, also calls into question whether CWA the scope of waters regulated under the Attention Docket ID No. OW–2002– jurisdiction over isolated, intrastate, CWA has been discussed in regulations, 0050. non-navigable waters could now be legislation, and judicial decisions. 3. By Hand Delivery or Courier. predicated on the other factors listed in The CWA was intended to ‘‘restore Deliver your comments to: Water the ‘‘Migratory Bird Rule’’ or the other and maintain the chemical, physical, Docket, EPA Docket Center, EPA West, rationales of 33 CFR 328.3(a)(3)(i)–(iii). and biological integrity of the Nation’s Room B102, 1301 Constitution Avenue, Although the SWANCC case itself waters.’’ 33 U.S.C. 1251(a). Its specific NW, Washington, DC, Attention Docket specifically involves section 404 of the provisions were designed to improve ID No. OW–2002–0050. Such deliveries CWA, the Court’s decision may also upon the protection of the Nation’s are only accepted during the Docket’s affect the scope of regulatory waters provided under earlier statutory normal hours of operation as identified jurisdiction under other provisions of schemes such as the Rivers and Harbors in I.B.1. the CWA, including programs under Act of 1899 (‘‘RHA’’) (33 U.S.C. 403, sections 303, 311, 401, and 402. Under 407, 411) and the Federal Water D. What Should I Consider as I Prepare each of these sections, the relevant Pollution Control Act of 1948 (62 Stat. My Comments? agencies have jurisdiction over ‘‘waters 1155) and its subsequent amendments You may find the following of the United States.’’ The agencies will through 1970. In doing so, Congress suggestions helpful for preparing your consider the potential implications of recognized ‘‘the primary responsibilities comments: the rulemaking for these other sections. and rights of States to prevent, reduce,

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and eliminate pollution, to plan the jurisdiction over intrastate waters which The SWANCC holding eliminates development and use (including were not part of the tributary system or CWA jurisdiction over isolated, restoration, preservation, and their adjacent wetlands. These included intrastate, non-navigable waters where enhancement) of land and water use of waters (1) as habitat by birds the sole basis for asserting CWA resources * * *’’ 33 U.S.C. 1251(b). protected by Migratory Bird Treaties or jurisdiction is the actual or potential use The jurisdictional scope of the CWA which cross State lines, (2) as habitat for of the waters as habitat for migratory is ‘‘navigable waters,’’ defined in the endangered species, or (3) to irrigate birds that cross State lines in their statute as ‘‘waters of the United States, crops sold in commerce. 51 FR 41217 migrations. 531 U.S. at 174 (‘‘We hold including the territorial seas.’’ CWA (November 13, 1986), 53 FR 20765 (June that 33 CFR 328.3(a)(3) (1999), as section 502(7), 33 U.S.C. 1362(7). The 6, 1988). These examples became clarified and applied to petitioner’s existing CWA section 404 regulations known as the ‘‘Migratory Bird Rule,’’ balefill site pursuant to the ‘‘Migratory define ‘‘waters of the United States’’ as even though the examples were neither Bird Rule,’’ 51 FR 41217 (1986), exceeds follows: a rule nor entirely about birds. The the authority granted to respondents (1) All waters which are currently Migratory Bird Rule later became the under section 404(a) of the CWA.’’). The used, or were used in the past, or may focus of the SWANCC case. agencies seek comment on the use of the be susceptible to use in interstate or factors in 33 CFR 328.3(a)(3)(i)–(iii) or IV. Potential Natural Resource the counterpart regulations in foreign commerce, including all waters Implications which are subject to ebb and flow of the determining CWA jurisdiction over tide; To date, some quantitative studies isolated, intrastate, non-navigable (2) All interstate waters including and anecdotal data provide early waters. interstate wetlands; estimates of potential resource The agencies solicit comment from (3) All other waters such as intrastate implications of the SWANCC decision. the public on the following issues: lakes, rivers, streams (including One of the purposes of the ANPRM is (1) Whether, and, if so, under what intermittent streams), mudflats, to solicit additional information, data, circumstances, the factors listed in 33 sandflats, wetlands, sloughs, prairie or studies addressing the extent of CFR 328.3(a)(3)(i)–(iii) (i.e., use of the potholes, wet meadows, playa lakes, or resource impacts to isolated, intrastate, water by interstate or foreign travelers natural ponds, the use, degradation or non-navigable waters. for recreational or other purposes, the destruction of which could affect Non-navigable intrastate isolated presence of fish or shellfish that could interstate or foreign commerce waters occur throughout the country. be taken and sold in interstate including any such waters: Their extent depends on a variety of commerce, the use of the water for (i) which are or could be used by factors including topography, climate, industrial purposes by industries in interstate or foreign travelers for and hydrologic forces. Preliminary interstate commerce) or any other recreational or other purposes; or assessments of potential resource factors provide a basis for determining (ii) from which fish or shellfish are or impacts vary widely depending on the CWA jurisdiction over isolated, could be taken and sold in interstate or scenarios considered. See, e.g., Ducks intrastate, non-navigable waters? foreign commerce; or Unlimited, ‘‘The SWANCC Decision: (2) Whether the regulations should (iii) which are used or could be used Implications for Wetlands and define ‘‘isolated waters,’’ and if so, what for industrial purposes by industries in Waterfowl’’ (September 2001) (available factors should be considered in interstate commerce. at http://www.ducks.org/conservation/ determining whether a water is or is not (4) All impoundments of waters 404_report.asp); ASWM, ‘‘SWANCC isolated for jurisdictional purposes? otherwise defined as waters of the Decision and the State Regulation of United States under the definition; Wetlands,’’ (June 2001) (available at Solicitation of Information (5) Tributaries of waters identified in http://www.aswm.org). In answering the questions set forth paragraphs (a)(1)–(4) of this section; There is an extensive body of above, please provide, as appropriate, (6) The territorial seas; knowledge about the functions and any information (e.g., scientific and (7) Wetlands adjacent to waters (other values of wetlands, which include flood technical studies and data, analysis of than waters that are themselves risk reduction, water quality environmental impacts, effects on wetlands) identified in paragraphs improvement, fish and wildlife habitat, interstate commerce, other impacts, etc.) (a)(1)–(6) of this section. and maintenance of the hydrologic supporting your views, and specific (8) Waters of the United States do not integrity of aquatic ecosystems. The recommendations on how to implement include prior converted cropland ... ANPRM seeks information regarding the such views. Additionally, we invite Waste treatment systems, including functions and values of wetlands and your views as to whether any other treatment ponds or lagoons designed to other waters that may be affected by the revisions are needed to the existing meet the requirements of CWA (other issues discussed in this ANPRM. regulations on which waters are than cooling ponds ...) are not waters of jurisdictional under the CWA. As noted V. Solicitation of Comments the United States. 40 CFR.230.3(s); 33 elsewhere in this document, the CFR 328.3(a). The agencies are seeking comment on agencies are also soliciting data and Counterpart and substantively similar issues related to the jurisdictional status information on the availability and regulatory definitions appear at 40 CFR of isolated waters under the CWA which effectiveness of other Federal or State 110.1, 112.2, 116.3, 117.1, 122.2, 232.2, the public wishes to call to our programs for the protection of aquatic 300.5, part 300 App. E, 302.3 and 401.11 attention. To assist the public in resources, and on the functions and (hereafter referred to as ‘‘the counterpart considering these issues, the following values of wetlands and other waters that definitions’’). discussion and specific questions are may be affected by the issues discussed In regulatory preambles, both the presented. The agencies will carefully in this ANPRM. Corps and EPA provided examples of consider the responses received to this additional types of links to interstate ANPRM in determining what regulatory VI. Related Federal and State commerce which might serve as a basis changes may be appropriate and the Authorities under 40 CFR 230.3(a)(3) and 33 CFR issues to be addressed in a proposed The SWANCC decision addresses 328.3(a)(3) for establishing CWA rulemaking to clarify CWA jurisdiction. CWA jurisdiction, and other Federal or

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State laws and programs may still interested in data and comments from Federal and State resource agencies on protect a water and related ecosystem State and local agencies on the effect of the implications of the SWANCC even if that water is no longer no longer asserting jurisdiction over decision for the protection of aquatic jurisdictional under the CWA following some of the waters (and discharges to resources. In light of this, the Corps has SWANCC. The Federal government those waters) in a watershed on the determined that today’s ANPRM does remains committed to wetlands implementation of Total Maximum not constitute a major Federal action protection through the Food Security Daily Loads (TMDLs) and attainment of significantly affecting the quality of the Act’s Swampbuster requirements and water quality standards. human environment, and thus does not Federal agricultural program benefits require the preparation of an VII. Statutory and Executive Order and restoration through such Federal Environmental Impact Statement (EIS). Reviews programs as the Wetlands Reserve Dated: January 10, 2003. Program (administered by the U.S. A. Executive Order 12866 Christine Todd Whitman, Department of Agriculture), grant Under Executive Order 12866 (58 FR making programs such as Partners in Administrator, Environmental Protection 51735, October 4, 1993), EPA and the Agency. Wildlife (administered by the Fish and Corps must determine whether the Wildlife Service), the Coastal Wetlands Dated: January 10, 2003. regulatory action is ‘‘significant’’ and Restoration Program (administered by therefore subject to review by the Office R.L. Brownlee, the National Marine Fisheries Service), of Management and Budget (OMB) and Acting Assistant Secretary of the Army, (Civil the State Grant, Five Star Restoration, Works), Department of the Army. and National Estuary Programs the requirements of the Executive Order. (administered by EPA), and the The Order defines ‘‘significant Note: The following guidance document regulatory action’’ as one that is likely will not appear in the Code of Federal Migratory Bird Conservation Regulations. Commission (composed of the to result in a rule that may: (1) Have an annual effect on the Secretaries of Interior and Agriculture, Appendix A the Administrator of EPA and Members economy of $100 million or more or of Congress). adversely affect in a material way the Joint Memorandum economy, a sector of the economy, The SWANCC decision also highlights Introduction productivity, competition, jobs, the the role of States in protecting waters This document provides clarifying not addressed by Federal law. Prior to environment, public health or safety, or State, local, or Tribal governments or guidance regarding the Supreme Court’s SWANCC, fifteen States had programs decision in Solid Waste Agency of Northern that addressed isolated wetlands. Since communities; Cook County v. United States Army Corps of SWANCC, additional States have (2) Create a serious inconsistency or Engineers, 531 U.S. 159 (2001) (‘‘SWANCC’’) considered, and two have adopted, otherwise interfere with an action taken and addresses several legal issues concerning legislation to protect isolated waters. or planned by another agency; Clean Water Act (‘‘CWA’’) jurisdiction that The Federal agencies have a number of (3) Materially alter the budgetary have arisen since SWANCC in various factual initiatives to assist States in these efforts impact of entitlements, grants, user fees, scenarios involving federal regulation of or loan programs or the rights and ‘‘navigable waters.’’ Because the case law to protect wetlands. For example, EPA’s interpreting SWANCC has developed over Wetland Program Development Grants obligations of recipients thereof; or (4) Raise novel legal or policy issues the last two years, the Agencies are issuing are available to assist States, Tribes, and this updated guidance, which supersedes local governments for building their arising out of legal mandates, the prior guidance on this issue. The Corps and wetland program capacities. In addition, President’s priorities, or the principles EPA are also initiating a rulemaking process the U.S. Department of Justice and other set forth in the Executive Order. to collect information and to consider Federal agencies co-sponsored a Pursuant to the terms of Executive jurisdictional issues as set forth in the national wetlands conference with the Order 12866, it has been determined attached ANPRM. Jurisdictional decisions National Governors Association Center that this Advanced Notice of Proposed will be based on Supreme Court cases including United States v. Riverside Bayview for Best Practices, National Conference Rulemaking is a ‘‘significant regulatory action’’ in light of the provisions of Homes, 474 U.S. 121 (1985) and SWANCC, of State Legislatures, the Association of regulations, and applicable case law in each State Wetlands Managers, and the paragraph (4) above as it raises novel jurisdiction. National Association of Attorneys legal or policy issues. As such, this General. This conference and the action was submitted to OMB for Background dialogue that has ensued will promote review. Changes made in response to In SWANCC, the Supreme Court held that close collaboration between Federal OMB suggestions or recommendations the Army Corps of Engineers had exceeded agencies and States in developing, will be documented in the public its authority in asserting CWA jurisdiction record. pursuant to section 404(a) over isolated, implementing, and enforcing wetlands intrastate, non-navigable waters under 33 protection programs. EPA also is B. National Environmental Policy Act C.F.R. 328.3(a)(3), based on their use as providing funding to the National habitat for migratory birds pursuant to Governors Association Center for Best As required by the National preamble language commonly referred to as Practices to assist States in developing Environmental Policy Act (NEPA), the the ‘‘Migratory Bird Rule,’’ 51 FR 41217 appropriate policies and actions to Corps prepares appropriate (1986). ‘‘Navigable waters’’ are defined in protect intrastate isolated waters. environmental documentation for its section 502 of the CWA to mean ‘‘waters of In light of this, the agencies solicit activities affecting the quality of the the United States, including the territorial information and data from the general human environment. The Corps has seas.’’ In SWANCC, the Court determined public, the scientific community, and determined that today’s Advance Notice that the term ‘‘navigable’’ had significance in Federal and State resource agencies on of Proposed Rulemaking merely solicits indicating the authority Congress intended to exercise in asserting CWA jurisdiction. 531 the availability and effectiveness of early comment on issues associated U.S. at 172. After reviewing the jurisdictional other Federal or State programs for the with the scope of waters that are scope of the statutory definition of protection of aquatic resources and properly subject to the CWA, and ‘‘navigable waters’’ in section 502, the Court practical experience with their information or data from the general concluded that neither the text of the statute implementation. The agencies are also public, the scientific community, and nor its legislative history supported the

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Corps’ assertion of jurisdiction over the a majority of cases hold that SWANCC Rule, 51 FR 41217 (i.e., use of the water as waters involved in SWANCC. Id. at 170–171. applies only to waters that are isolated, habitat for birds protected by Migratory Bird In SWANCC, the Supreme Court intrastate and non-navigable, several courts Treaties; use of the water as habitat for recognized that ‘‘Congress passed the CWA have interpreted SWANCC’s reasoning to Federally protected endangered or threatened for the stated purpose of ‘restoring and apply to waters other than the isolated waters species; or use of the water to irrigate crops maintaining the chemical, physical, and at issue in that case. This memorandum sold in interstate commerce). biological integrity of the Nation’s waters’’’ attempts to add greater clarity concerning By the same token, in light of SWANCC, it and also noted that ‘‘Congress chose to federal CWA jurisdiction following SWANCC is uncertain whether there remains any basis ‘recognize, preserve, and protect the primary by identifying specific categories of waters, for jurisdiction under the other rationales of responsibilities and rights of States to explaining which categories of waters are § 328.3(a)(3)(i)–(iii) over isolated, non- prevent, reduce, and eliminate pollution, to jurisdictional or non-jurisdictional, and navigable, intrastate waters (i.e., use of the plan the development and use (including pointing out where more refined factual and water by interstate or foreign travelers for restoration, preservation, and enhancement) legal analysis will be required to make a recreational or other purposes; the presence of land and water resources.’’’ Id. at 166–67 jurisdictional determination. of fish or shellfish that could be taken and (citing 33 U.S.C. 1251(a) and (b)). However, Although the SWANCC case itself sold in interstate commerce; use of the water expressing ‘‘serious constitutional and specifically involved Section 404 of the for industrial purposes by industries in federalism questions’’ raised by the Corps’ CWA, the Court’s decision may affect the interstate commerce). Furthermore, within interpretation of the CWA, the Court stated scope of regulatory jurisdiction under other the states comprising the Fourth Circuit, that ‘‘where an administrative interpretation provisions of the CWA as well, including the CWA jurisdiction under 33 CFR § 328.3(a)(3) of a statute invokes the outer limits of Section 402 NPDES program, the Section 311 in its entirety has been precluded since 1997 Congress’ power, we expect a clear indication oil spill program, water quality standards by the Fourth Circuit’s ruling in United that Congress intended that result.’’ Id. at under Section 303, and Section 401 water States v. Wilson, 133 F. 3d 251, 257 (4th Cir. 174, 172. Finding ‘‘nothing approaching a quality certification. Under each of these 1997) (invalidating 33 CFR § 328.3(a)(3)). clear statement from Congress that it sections, the relevant agencies have In view of SWANCC, neither agency will intended section 404(a) to reach an jurisdiction over ‘‘waters of the United assert CWA jurisdiction over isolated waters abandoned sand and gravel pit’’ (id. at 174), States.’’ CWA section 502(7). that are both intrastate and non-navigable, the Court held that the Migratory Bird Rule, This memorandum does not discuss the where the sole basis available for asserting as applied to petitioners’ property, exceeded exact factual predicates that are necessary to CWA jurisdiction rests on any of the factors the agencies’ authority under section 404(a). establish jurisdiction in individual cases. We listed in the ‘‘Migratory Bird Rule.’’ In Id. at 174. recognize that the field staff and the public addition, in view of the uncertainties after could benefit from additional guidance on SWANCC concerning jurisdiction over The Scope of CWA Jurisdiction After how to apply the applicable legal principles isolated waters that are both intrastate and SWANCC to individual cases.1 Should questions arise non-navigable based on other grounds listed Because SWANCC limited use of 33 CFR concerning CWA jurisdiction, the regulated in 33 CFR § 328.3(a)(3)(i)–(iii), field staff § 328.3(a)(3) as a basis of jurisdiction over community should seek assistance from the should seek formal project-specific certain isolated waters, it has focused greater Corps and EPA. Headquarters approval prior to asserting attention on CWA jurisdiction generally, and jurisdiction over such waters, including A. Isolated, Intrastate Waters That are Non- permitting and enforcement actions. specifically over tributaries to jurisdictional Navigable waters and over wetlands that are ‘‘adjacent B. Traditional Navigable Waters wetlands’’ for CWA purposes. SWANCC squarely eliminates CWA As indicated, section 502 of the CWA jurisdiction over isolated waters that are As noted, traditional navigable waters are defines the term navigable waters to mean intrastate and non-navigable, where the sole jurisdictional. Traditional navigable waters ‘‘waters of the United States, including the basis for asserting CWA jurisdiction is the are waters that are subject to the ebb and flow territorial seas.’’ The Supreme Court has actual or potential use of the waters as of the tide, or waters that are presently used, recognized that this definition clearly habitat for migratory birds that cross state or have been used in the past, or may be includes those waters that are considered lines in their migrations. 531 U.S. at 174 susceptible for use to transport interstate or traditional navigable waters. In SWANCC, the (‘‘We hold that 33 CFR § 328.3(a)(3) (1999), foreign commerce. 33 CFR § 328.3(a)(1); Court noted that while ‘‘the word ‘navigable’ as clarified and applied to petitioner’s balefill United States v. Appalachian Elec. Power in the statute was of ‘limited import‘’’ site pursuant to the ‘Migratory Bird Rule,’ 51 Co., 311 U.S. 377, 407–408 (1940) (water (quoting Riverside, 474 U.S. 121 (1985)), ‘‘the FR 41217 (1986), exceeds the authority considered navigable, although not navigable term ‘navigable’ has at least the import of granted to respondents under § 404(a) of the at present but could be made navigable with showing us what Congress had in mind as its CWA.’’). The EPA and the Corps are now reasonable improvements); Economy Light & Power Co. v. United States, 256 U.S. 113 authority for enacting the CWA: traditional precluded from asserting CWA jurisdiction in (1911) (dams and other structures do not jurisdiction over waters that were or had such situations, including over waters such eliminate navigability); SWANCC, 531 U.S. at been navigable in fact or which could as isolated, non-navigable, intrastate vernal 172 (referring to traditional jurisdiction over reasonably be so made.’’ 531 U.S. at 172. In pools, playa lakes and pocosins. SWANCC waters that were or had been navigable in addition, the Court reiterated in SWANCC also calls into question whether CWA fact or which could reasonably be so made).2 that Congress evidenced its intent to regulate jurisdiction over isolated, intrastate, non- In accord with the analysis in SWANCC, ‘‘at least some waters that would not be navigable waters could now be predicated on waters that fall within the definition of deemed ‘navigable’ under the classical the other factors listed in the Migratory Bird traditional navigable waters remain understanding of that term.’’ SWANCC at 171 1 jurisdictional under the CWA. Thus, isolated, (quoting Riverside, 474 U.S. at 133). Relying The CWA provisions and regulations described intrastate waters that are capable of on that intent, for many years, EPA and the in this document contain legally binding supporting navigation by watercraft remain Corps have interpreted their regulations to requirements. This document does not substitute for those provisions or regulations, nor is it a subject to CWA jurisdiction after SWANCC if assert CWA jurisdiction over non-navigable regulation itself. It does not impose legally binding they are traditional navigable waters, i.e., if tributaries of navigable waters and their requirements on EPA, the Corps, or the regulated they meet any of the tests for being navigable- adjacent wetlands. Courts have upheld the community, and may not apply to a particular in-fact. See, e.g., Colvin v. United States 181 view that traditional navigable waters and, situation depending on the circumstances. Any F. Supp. 2d 1050 (C.D. Cal. 2001) (isolated generally speaking, their tributary systems decisions regarding a particular water will be based (and their adjacent wetlands) remain subject on the applicable statutes, regulations, and case 2 to CWA jurisdiction. law. Therefore, interested person are free to raise These traditional navigable waters are not Several federal district and appellate courts questions and objections about the appropriateness limited to those regulated under Section 10 of the of the application of this guidance to a particular Rivers and Harbors Act of 1899; traditional have addressed the effect of SWANCC on situation, and EPA and/or the Corps will consider navigable waters include waters which, although CWA jurisdiction, and the case law on the whether or not the recommendations or used, susceptibale to use, or historically used, to precise scope of federal CWA jurisdiction in interpretations of this guidance are appropriate in transport goods or people in commerce, do not form light of SWANCC is still developing. While that situation based on the law and regulations. part of a continuous wateborne highway.

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man-made water body capable of boating United States include waters that are are outside CWA jurisdiction); United States found to be ‘‘water of the United States’’). tributary to navigable waters’’); Aiello v. v. RGM Corp., 222 F. Supp. 2d 780 (E.D. Va. Town of Brookhaven, 136 F. Supp. 2d 81, 118 2002) (government appeal pending) C. Adjacent Wetlands (E.D. N.Y. 2001) (non-navigable pond and (wetlands on property not contiguous to (1) Wetlands Adjacent to Traditional creek determined to be tributaries of navigable river and, thus, jurisdiction not Navigable Waters navigable waters, and therefore ‘‘waters of established based upon adjacency to CWA jurisdiction also extends to wetlands the United States under the CWA’’). navigable water). that are adjacent to traditional navigable Jurisdiction has been recognized even when Another question that has arisen is waters. The Supreme Court did not disturb the tributaries in question flow for a whether CWA jurisdiction is affected when a its earlier holding in Riverside when it significant distance before reaching a surface tributary to jurisdictional waters rendered its decision in SWANCC. Riverside navigable water or are several times removed flows for some of its length through ditches, dealt with a wetland adjacent to Black Creek, from the navigable waters (i.e., ‘‘tributaries of culverts, pipes, storm sewers, or similar a traditional navigable water. 474 U.S. 121 tributaries’’). See, e.g., United States v. manmade conveyances. A number of courts (1985); see also SWANCC, 531 U.S. at 167 Lamplight Equestrian Ctr., No. 00 C 6486, have held that waters with manmade features (‘‘[i]n Riverside, we held that the Corps had 2002 WL 360652, at *8 (ND. Ill. Mar. 8, 2002) are jurisdictional. For example, in section 404(a) jurisdiction over wetlands that (‘‘Even where the distance from the tributary Headwaters Inc. v. Talent Irrigation District, actually abutted on a navigable waterway’’). to the navigable water is significant, the the Ninth Circuit held that manmade The Court in Riverside found that ‘‘Congress’; quality of the tributary is still vital to the irrigation canals that diverted water from one concern for the protection of water quality quality of navigable waters’’); United States set of natural streams and lakes to other and aquatic ecosystems indicated its intent to v. Buday, 138 F. Supp. 2d 1282, 1291–92 (D. streams and creeks were connected as Mont. 2001) (‘‘water quality of tributaries regulate wetlands ‘inseparably bound up tributaries to waters of the United States, and * * * distant though the tributaries may be with’’’ jurisdictional waters. 474 U.S. at 134. consequently fell within the purview of CWA from navigable streams, is vital to the quality Thus, wetlands adjacent to traditional jurisdiction. 243 F.3d at 533–34. However, of navigable waters’’); United States v. Rueth navigable waters clearly remain jurisdictional some courts have taken a different view of Dev. Co., No. 2:96CV540, 2001 WL 17580078 after SWANCC. The Corps and EPA currently the circumstances under which man-made (N.D. Ind. Sept. 26, 2001) (refusing to reopen define ‘adjacent’ as ‘‘bordering, contiguous, conveyances satisfy the requirements for a consent decree in a CWA case and or neighboring. Wetlands separated from CWA jurisdiction. See, e.g., Newdunn, 195 F. determining that jurisdiction remained over other waters of the United States by man- Supp. 2d at 765 (government appeal pending) wetlands adjacent to a non-navigable (man- made dikes or barriers, natural river berms, (court determined that Corps had failed to made) waterway that flows into a navigable beach dunes, and the like are ‘adjacent carry its burden of establishing CWA water). wetlands.’’’ 33 CFR § 328.3(b); 40 CFR jurisdiction over wetlands from which Some courts have interpreted the reasoning § 230.3(b). The Supreme Court has not itself surface water had to pass through a spur in SWANCC to potentially circumscribe defined the term ‘‘adjacent,’’ nor stated ditch, a series of man-made ditches and CWA jurisdiction over tributaries by finding whether the basis for adjacency is geographic culverts as well as non-navigable portions of CWA jurisdiction attaches only where proximity or hydrology. a creek before finally reaching navigable navigable waters and waters immediately waters). (2) Wetlands Adjacent to Non-Navigable adjacent to navigable waters are involved. A number of courts have held that waters Waters Rice v. Harken is the leading case taking the connected to traditional navigable waters The reasoning in Riverside, as followed by narrowest view of CWA jurisdiction after only intermittently or ephemerally are a number of post-SWANCC courts, supports SWANCC. 250 F.3d 264 (5th Cir. 2001) subject to CWA jurisdiction. The language jurisdiction over wetlands adjacent to non- (rehearing denied). Harken interpreted the and reasoning in the Ninth Circuit’s decision navigable waters that are tributaries to scope of ‘‘navigable waters’’ under the Oil in Headwaters Inc. v. Talent Irrigation navigable waters. Since SWANCC, some Pollution Act (OPA). The Fifth Circuit relied District indicates that the intermittent flow of courts have expressed the view that on SWANCC to conclude ‘‘it appears that a waters does not affect CWA jurisdiction. 243 SWANCC raised questions about adjacency body of water is subject to regulation under F.3d at 534 (‘‘Even tributaries that flow jurisdiction, so that wetlands are the CWA if the body of water is actually intermittently are ‘waters of the United jurisdictional only if they are adjacent to navigable or is adjacent to an open body of States.’’’). Other cases, however, have navigable waters. See, e.g., Rice v. Harken, navigable water.’’ 250 F.3d at 269. The suggested that SWANCC eliminated from discussed infra. analysis in Harken implies that the Fifth CWA jurisdiction some waters that flow only Circuit might limit CWA jurisdiction to only intermittently. See, e.g., Newdunn, 195 F. D. Tributaries those tributaries that are traditionally Supp. 2d at 764, 767–68 (government appeal A number of court decisions have held that navigable or immediately adjacent to a pending) (ditches and culverts with SWANCC does not change the principle that navigable water. intermittent flow not jurisdictional). CWA jurisdiction extends to tributaries of A few post-SWANCC district court A factor in determining jurisdiction over navigable waters. See, e.g., Headwaters v. opinions have relied on Harken or reasoning waters with intermittent flows is the Talent Irrigation Dist., 243 F.3d 526, 534 (9th similar to that employed by the Harken court presence or absence of an ordinary high Cir. 2001) (‘‘Even tributaries that flow to limit jurisdiction. See, e.g., United States water mark (OHWM). Corps regulations intermittently are ‘waters of the United v. Rapanos, 190 F. Supp. 2d 1011(E.D. Mich. provide that, in the absence of adjacent States’’’); United States v. Interstate Gen. Co, 2002) (government appeal pending) (‘‘the wetlands, the lateral limits of non-tidal No. 01–4513, slip op. at 7, 2002 WL 1421411 Court finds as a matter of law that the waters extend to the OHWM (33 CFR (4th Cir. July 2, 2002), aff’ing 152 F. Supp. wetlands on Defendant’s property were not 328.4(c)(1)). One court has interpreted this 2d 843 (D. Md. 2001) (refusing to grant writ directly adjacent to navigable waters, and regulation to require the presence of a of coram nobis; rejecting argument that therefore, the government cannot regulate continuous OHWM. United States v. RGM, SWANCC eliminated jurisdiction over Defendant’s property.’’); United States v. 222 F. Supp. 2d 780 (E.D. Va. 2002) wetlands adjacent to non-navigable Needham, No. 6:01–CV–01897, 2002 WL (government appeal pending). tributaries); United States v. Krilich, 393F.3d 1162790 (W.D. La. Jan. 23, 2002) (government 784 (7th Cir. 2002) (rejecting motion to vacate appeal pending) (district court affirmed Conclusion consent decree, finding that SWANCC did finding of no liability by bankruptcy court for In light of SWANCC, field staff should not not alter regulations interpreting ‘‘waters of debtors under OPA for discharge of oil since assert CWA jurisdiction over isolated waters the U.S.’’ other than 33 C.F.R. § 328.3(a)(3)); drainage ditch into which oil was discharged that are both intrastate and non-navigable, Community Ass. for Restoration of the Env’t was found to be neither a navigable water nor where the sole basis available for asserting v. Henry Bosma Dairy, 305 F.3d 953 (9th Cir. adjacent to an open body of navigable water). CWA jurisdiction rests on any of the factors 2002) (drain that flowed into a canal that See alsoUnited States v. Newdunn, 195 F. listed in the ‘‘Migratory Bird Rule.’’ In flows into a river is jurisdictional); Idaho Supp. 2d 751 (E.D. Va. 2002) (government addition, field staff should seek formal Rural Council v. Bosma, 143 F. Supp. 2d appeal pending) (wetlands and tributaries not project-specific HQ approval prior to 1169, 1178 (D. Idaho 2001) (‘‘waters of the contiguous or adjacent to navigable waters asserting jurisdiction over waters based on

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other factors listed in 33 CFR 328.3(a)(3)(i)– ADDRESSES: Written comments should ACTION: Proposed rule. (iii). be sent to: Pamela Blakley, Chief, Field staff should continue to assert Permits and Grants Section (IL/IN/OH), SUMMARY: EPA proposes to approve the jurisdiction over traditional navigable waters Air Programs Branch (AR–18J), U.S. State Implementation Plan (SIP) (and adjacent wetlands) and, generally revision submitted by the State of speaking, their tributary systems (and Environmental Protection Agency, adjacent wetlands). Field staff should make Region 5, 77 West Jackson Boulevard, Maryland establishing reasonable jurisdictional and permitting decisions on a Chicago, Illinois 60604. available control technology (RACT) to case-by-case basis considering this guidance, A copy of the State’s request is limit volatile organic compound (VOC) applicable regulations, and any additional available for inspection at the above emissions from an overprint varnish relevant court decisions. Where questions address. that is used in the cosmetic industry. remain, the regulated community should This action also proposes to add new FOR FURTHER INFORMATION CONTACT: Julie seek assistance from the agencies on definitions and amend certain existing Capasso, Environmental Scientist, questions of jurisdiction. definitions for terms used in the Permits and Grants Section (IL/IN/OH), Robert E. Fabricant, regulations. In the Final Rules section of Air Programs Branch, (AR–18J), U.S. this Federal Register, EPA is approving General Counsel, Environmental Protection Environmental Protection Agency, Agency. the State’s SIP submittal as a direct final Region 5, 77 West Jackson Boulevard, rule without prior proposal because the Steven J. Morello, Chicago, Illinois 60604, telephone (312) Agency views this as a noncontroversial General Counsel, Department of the Army. 886–1426. submittal and anticipates no adverse [FR Doc. 03–960 Filed 1–14–03; 8:45 am] SUPPLEMENTARY INFORMATION: comments. A more detailed description BILLING CODE 6560–50–P Throughout this document whenever of the state submittal and EPA’s ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ are used we mean evaluation are included in a Technical the EPA. Support Document (TSD) prepared in ENVIRONMENTAL PROTECTION I. What action is EPA taking today? support of this rulemaking action. A AGENCY II. Where can I find more information about copy of the TSD is available, upon this proposal and corresponding direct request, from the EPA Regional Office 40 CFR Part 52 final rule? listed in the ADDRESSES section of this I. What Action Is EPA Taking Today? document. If no adverse comments are [IN140–1b; FRL–7433–6] received in response to this action, no The EPA is proposing to conditionally further activity is contemplated. If EPA Approval and Promulgation of approve rules submitted by the State of receives adverse comments, the direct Implementation Plans; Indiana Indiana as revisions to its State final rule will be withdrawn and all Implementation Plan (SIP) for AGENCY: public comments received will be Environmental Protection prevention of significant deterioration addressed in a subsequent final rule Agency (EPA). (PSD) provisions for attainment areas for based on this proposed rule. EPA will ACTION: Proposed rule. the Indiana Department of not institute a second comment period. Environmental Management. SUMMARY: The EPA is proposing to Any parties interested in commenting conditionally approve rules submitted II. Where Can I Find More Information on this action should do so at this time. by the State of Indiana as revisions to its About This Proposal and DATES: Comments must be received in State Implementation Plan(SIP) for Corresponding Direct Final Rule? writing by February 14, 2003. prevention of significant deterioration For additional information see the ADDRESSES: Written comments should (PSD) provisions for attainment areas for direct final rule published in the rules the Indiana Department of be addressed to Walter Wilkie, Acting and regulations section of this Federal Branch Chief, Air Quality Planning and Environmental Management. Register. In the ‘‘Rules and Regulations’’ Information Services Branch, Mailcode section of this Federal Register, EPA is Authority: 42 U.S.C. 4201 et seq. 3AP21, U.S. Environmental Protection approving the State’s request as a direct Dated: December 18, 2002. Agency, Region III, 1650 Arch Street, final rule without prior proposal Bharat Mathur, Philadelphia, Pennsylvania 19103. because EPA views this action as Acting Regional Administrator, Region 5. Copies of the documents relevant to this action are available for public noncontroversial and anticipates no [FR Doc. 03–617 Filed 1–14–03; 8:45 am] inspection during normal business adverse comments. The rationale for BILLING CODE 6560–50–P approval is set forth in the direct final hours at the Air Protection Division, rule. If EPA receives no written adverse U.S. Environmental Protection Agency, comments, EPA will take no further ENVIRONMENTAL PROTECTION Region III, 1650 Arch Street, action on this proposed rule. If EPA AGENCY Philadelphia, Pennsylvania 19103; and receives written adverse comment, we the Maryland Department of the will publish a timely withdrawal of the 40 CFR Part 52 Environment, 1800 Washington direct final rule in the Federal Register Boulevard, Suite 705, Baltimore, and inform the public that the rule will [MD137–3090b; FRL–7420–9] Maryland 21230. not take effect. In that event, EPA will FOR FURTHER INFORMATION CONTACT: address all relevant public comments in Approval and Promulgation of Air Quality Implementation Plans; Ellen Wentworth, (215) 814–2034, at the a subsequent final rule based on this EPA Region III address above, or by e- proposed rule. In either event, EPA will Maryland; Revision to the Control of Volatile Organic Compound Emissions mail at [email protected]. Please not institute a second comment period note that while questions may be posed on this action. Any parties interested in From Screen Printing and Digital Imaging via telephone and e-mail, formal commenting must do so at this time. comments must be submitted in writing, DATES: Comments on this action must be AGENCY: Environmental Protection as indicated in the ADDRESSES section of received by February 14, 2003. Agency (EPA). this document.

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