CONCORD, Mass. – The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency published on April 21, 2014 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, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), and Rapanos v. United States (Rapanos). The proposed rule was developed to 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.
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, or the territorial seas; and adjacent waters, including adjacent wetlands.
In addition, the agencies propose that “other waters” (those not fitting in the above categories) could be determined to be “waters of the United States” through a case-specific determination showing that, either alone or in combination with similarly situated “other waters” in the region, they have a “significant nexus” to a traditional navigable water, interstate water, or the territorial seas.
The agencies’ decision on how best to address jurisdiction over ”other waters” in the final rule will be informed by the final version of the EPA’s Office of Research and Development synthesis of published peer-reviewed scientific literature discussing the nature of connectivity and effects of streams and wetlands on downstream waters and other available scientific information.
The goal of the agencies is to ensure the regulatory definition is consistent with the CWA, as interpreted by the Supreme Court, and as supported by science, and to provide maximum clarity to the public, as the agencies work to fulfill the CWA’s objectives and policy to protect water quality, public health, and the environment.
For more information on the proposed rule visit: http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationalNoticesandProgramInitiatives.aspx.
Submit public comments on the proposed rule by July 21, 2014 to the Federal eRulemaking portal: http://www.regulations.gov; or email to email@example.com (include EPA-HQ-OW-2011-0880 in the subject line of message); or mail (original and 3 copies of comments) to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Ave., NW, Washington DC 20460 (Attn: Docket ID No. EPA-HQ-OW-2011-0880).
For more information contact Ms. Donna Downing, Office of Water (4502-T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington DC 20460; telephone 202-566-2428 or email CWAwaters@epa.gov; or contact Ms. Stacey Jensen, Regulatory Community of Practice (CECW-CO-R), U.S. Army Corps of Engineers, 441 G Street, NW, Washington DC 20314; telephone 202-761-5856; email USACE_CWA_RULE@usace.army.mil (and include EPA Docket ID No. EPA-HQ-OW-2011-0880) in the message subject line.