U.S. Environmental Protection Agency & U.S. Army Corps of Engineers Proposed Rulemaking: Definition of 'Waters of the United States' Under the Clean Water Act (Introduction and Legal Analysis), 79 Fed. Reg. 22188 (Apr. 21, 2014)

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 675-688

Proposed Rulemaking: Def‌inition of “Waters of the United States” Under the Clean Water Act Page 675

22188

Federal Register/ Vol. 79, No. 76 / Monday, April 21, 2014 /Proposed Rules

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‘‘Interstate waters’’ in this preamble refers to all

interstate waters including interstate wetlands.

DEPARTMENT OF DEFENSE

Department of the Army, Corps of

Engineers

33 CFR Part 328

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 110, 112, 116, 117, 122,

230, 232, 300, 302, and 401

[EPA–HQ–OW- 2011–0880; FRL–9901–47–

OW]

RIN 2040–AF30

Definition of ‘‘Waters of the United

States’’ Under the Clean Water Act

AGENCY

: U.S. Army Corps of Engineers,

Department of the Army, Department of

Defense; and Environmental Protection

Agency (EPA).

ACTION

: Proposed rule.

SUMMARY

: The Environmental Protection

Agency (EPA) and the U.S. Army Corps

of Engineers (Corps) are publishing for

public comment a proposed rule

defining the scope of waters protected

under the Clean Water Act (CWA), in

light of the U.S. Supreme Court cases in

U.S. v. Riverside Bayview, Rapanos v.

United States, and Solid Waste Agency

of Northern Cook County v. U.S. Army

Corps of Engineers (SWANCC), and

Rapanos v. United States (Rapanos).

This proposal would enhance protection

for the nation’s public health and

aquatic resources, and increase CWA

program predictability and consistency

by increasing clarity as to the scope of

‘‘waters of the United States’’ protected

under the Act.

DATES

: Submit comments on or before

July 21, 2014.

ADDRESSES

: Submit your comments,

identified by Docket ID No. EPA–HQ–

OW–2011–0880 by one of the following

methods:

•Federal eRulemaking Portal: http://

www.regulations.gov. Follow the

instructions for submitting comments.

•Email: ow-docket@epa.gov. Include

EPA–HQ–OW–2011–0880 in the subject

line of the message.

•Mail: Send the original and three

copies of your comments to: Water

Docket, Environmental Protection

Agency, Mail Code 2822T, 1200

Pennsylvania Avenue NW., Washington,

DC 20460, Attention: Docket ID No.

EPA–HQ–OW–2011–0880.

•Hand Delivery/Courier: Deliver

your comments to EPA Docket Center,

EPA West, Room 3334, 1301

Constitution Avenue NW., Washington,

DC 20460, Attention Docket ID No.

EPA–HQ–OW–2011–0880. Such

deliveries are accepted only during the

Docket’s normal hours of operation,

which are 8:30 a.m. to 4:30 p.m.,

Monday through Friday, excluding legal

holidays. Special arrangements should

be made for deliveries of boxed

information. The telephone number for

the Water Docket is 202–566–2426.

Instructions: Direct your comments to

Docket ID No. EPA–HQ–OW–2011–

0880. EPA’s policy is that all comments

received will be included in the public

docket without change and may be

made available on-line at http://

www.regulations.gov, including any

personal information provided, unless

the comment includes information

claimed to be Confidential Business

Information (CBI) or other information

whose disclosure is restricted by statute.

Do not submit information that you

consider to be CBI, or otherwise

protected, through http://

www.regulations.gov or email. The

http://www.regulations.gov Web site is

an ‘‘anonymous access’’ system, which

means EPA will not know your identity

or contact information unless you

provide it in the body of your comment.

If you send an email directly to EPA

without going through http://

www.regulations.gov, your email

address will be automatically captured

and included as part of the comment

that is placed in the public docket and

made available on the Internet. If you

submit an electronic comment, EPA

recommends that you include your

name and other contact information in

the body of your comment and with any

disk or CD–ROM you submit. If EPA

cannot read your comment due to

technical difficulties and cannot contact

you for clarification, EPA might not be

able to consider your comment. Avoid

the use of special characters and any

form of encryption, and ensure that

electronic files are free of any defects or

viruses. For additional information

about EPA’s public docket, visit the EPA

Docket Center homepage at http://

www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket

are listed in the http://

www.regulations.gov index. Some

information, however, is not publicly

available, e.g., CBI or other information

whose disclosure is restricted by statute.

Certain other material, such as

copyrighted material, is publicly

available only in hard copy. Publicly

available docket materials are available

electronically at http://

www.regulations.gov or in hard copy at

the Water Docket, EPA Docket Center,

EPA West, Room 3334, 1301

Constitution Avenue NW., Washington,

DC. The Public Reading Room is open

from 8:30 a.m. to 4:30 p.m., Monday

through Friday, excluding legal

holidays. The telephone number for the

Public Reading Room is 202–566–1744,

and the telephone number for the Water

Docket is 202–566–2426.

FOR FURTHER INFORMATION CONTACT

: Ms.

Donna Downing, Office of Water (4502–

T), Environmental Protection Agency,

1200 Pennsylvania Avenue NW.,

Washington, DC 20460; telephone

number 202–566–2428; email address:

CWAwaters@epa.gov. Ms. Stacey Jensen,

Regulatory Community of Practice

(CECW–CO–R), U.S. Army Corps of

Engineers, 441 G Street NW.,

Washington, DC 20314; telephone

number 202–761–5856; email address:

USACE_CWA_Rule@usace.army.mil.

SUPPLEMENTARY INFORMATION

: The

SWANCC and Rapanos decisions

resulted in the agencies evaluating the

jurisdiction of waters on a case-specific

basis far more frequently than is best for

clear and efficient implementation of

the CWA. This approach results in

confusion and uncertainty to the

regulated public and results in

significant resources being allocated to

these determinations by Federal and

State regulators. The agencies are

proposing this rule to fully carry out

their responsibilities under the Clean

Water Act. The agencies are providing

clarity to regulated entities as to

whether individual water bodies are

jurisdictional and discharges are subject

to permitting, and whether individual

water bodies are not jurisdictional and

discharges are not subject to permitting.

Developing a final rule to provide the

intended level of certainty and

predictability, and minimizing the

number of case-specific determinations,

will require significant public

involvement and engagement. Such

involvement and engagement will allow

the agencies to make categorical

determinations of jurisdiction, in a

manner that is consistent with the

scientific body of information before the

agencies—particularly on the category

of waters known as ‘‘other waters.’’

The agencies propose to define

‘‘waters of the United States’’ in section

(a) of the proposed rule for all sections

of the CWA to mean: Traditional

navigable waters; interstate waters,

including interstate wetlands; the

territorial seas; impoundments of

traditional navigable waters, interstate

waters, including interstate wetlands,

the territorial seas, and tributaries, as

defined, of such waters; tributaries, as

defined, of traditional navigable waters,

interstate waters,

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or the territorial seas;

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