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
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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