On April 21, 2014,
the Environmental Protection Agency and the Corps of Engineers published 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.
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.”
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.
Waters in these categories would be jurisdictional “waters of the United
States” by rule – no additional analysis would be required. The agencies
emphasize that the categorical finding of jurisdiction for tributaries and
adjacent waters was not based on the mere connection of a water body to
downstream waters, but rather a determination that the nexus, alone or in
combination with similarly situated waters in the region, is significant based
on data, science, the CWA, and case law.
In addition, the agencies propose that “other
waters” (those not fitting in any of the above categories) could be determined
to be “waters of the United States” through a case-specific 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 proposed rule also offers a definition of significant nexus and
explains how similarly situated “other waters” in the region should be
agencies propose to exclude specified waters from the definition of “waters of
the United States” in section (b) of the proposed rule. The agencies propose no change to the exclusion
for waste treatment systems designed consistent with the requirements of the
CWA, no change to the exclusion for prior converted cropland, and no
change to the regulatory status of water transfers. The agencies propose, for the first time, to
exclude by regulation certain waters and features over which the agencies have generally not asserted CWA
jurisdiction. Codifying these
longstanding practices supports the agencies’ goals of providing greater
clarity, certainty, and predictability for the regulated public. Waters and features that are determined to be
excluded under section (b) of the proposed rule will not be “recaptured” as
jurisdictional waters under any of the categories in the proposed rule under
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
(U.S. Environmental Protection Agency, Connectivity
of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the
Scientific Evidence, [Washington, D.C.: U.S. Environmental Protection Agency,
2013]) (“Report”) and other available scientific information.
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
National Issues Concerning the Proposed Rule: Similar public notices are being published
concurrently by other Corps division or district offices. The Federal Register notice is the
public’s opportunity to provide comment on the proposed rule. For more information on the proposed rule, visit: http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationalNoticesandProgramInitiatives.aspx.
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
Federal eRulemaking Portal:
http://www.regulations.gov. Follow the instructions for submitting
email@example.com. Include EPA–HQ–OW–2011–0880 in the subject line of the
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
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.
For more information, contact
Office of Water (4502–T),
Environmental Protection Agency,
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Stacey M. Jensen
Regulatory Community of Practice
U.S. Army Corps of Engineers
441 G Street, NW, Washington, DC 20314
Include the EPA Docket ID No. EPA-HQ-OW-2011-0880
in the subject line of the message.