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Title: 14 February - EPA and Army publish proposed revised "waters of the United States" definition
The U.S. Environmental Protection Agency (EPA) and the Department of the Army announced today the publishing in the Federal Register of the proposed new definition of "waters of the United States" that clarifies federal authority under the Clean Water Act. The notice is available at https://www.federalregister.gov/documents/2019/02/14/2019-00791/revised-definition-of-waters-of-the-united-states. The agencies' proposal is the second step in a two-step process to review and revise the definition of "waters of the United States" consistent with the February 2017 Presidential Executive Order entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." The publishing of the proposal and outreach efforts were delayed due to the lapse in appropriations for EPA. Today's notice begins a 60-day public comment period that will close on April 15, 2019. EPA and the Army will hold an informational webcast on February 14, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on February 27-28, 2019. Information, including supporting analyses and fact sheets, are available at: https://www.epa.gov/wotus-rule/step-two-revise and https://www.epa.gov/wotus-rule.
SPECIAL PUBLIC NOTICE
Issue Date: February 14, 2019
Expiration Date: April 15, 2019
60 DAY NOTICE
CLEAN WATER ACT PROPOSED RULE FOR A REVISED
DEFINITION OF THE "WATERS OF THE U.S."
On February 14, 2019, the U.S. Environmental Protection Agency (EPA) and the
Department of the Army (Army) published for public comment a proposed rule revising
the definition of "waters of the United States," which would establish the scope of
federal regulatory authority under the Clean Water Act (CWA). The proposed rule is
intended to satisfy the requirements of Executive Order (EO) 13778 that directed the
EPA and the Army to review and rescind or replace the 2015 Clean Water Rule (80 FR
37053) and consider interpreting the scope of "waters of the United States" consistent
with the Justice Scalia opinion (plurality standard) from Rapanos v. United States
(2006). The EO instructed that any new proposed rule shall ensure that the Nation's
navigable waters are kept free from pollution, while at the same time promoting
economic growth, minimizing regulatory uncertainty, and showing due regard for the
roles of the Congress and the States under the Constitution.
The proposed revised definition outlines six categories of waters that would be
considered "waters of the United States" in section (a), including: traditional navigable
waters, including the territorial seas; tributaries that contribute perennial or intermittent
flow to such waters; certain ditches; certain lakes and ponds; impoundments of
otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters.
The proposed revised definition also outlines what would not be considered
"waters of the United States" in section (b), including: waters not identified in section (a);
groundwater; ephemeral features; ditches not included in section (a); prior converted
cropland, as defined; certain artificially irrigated areas; certain artificial lakes and ponds;
certain water-filled depressions; certain stormwater control features; certain wastewater
recycling structures; and waste treatment systems, as defined.
Additionally, the proposed rule provides definitions for key terms used in the
regulation in section (c). Some of these are unchanged from the current regulations,
including the definitions for "wetlands", "ordinary high water mark", and "high tide line".
Some of these have been redefined, including definitions for "tributary" and "ditch". The
rule also defines several key terms, that while used colloquially, are added to the
regulation for the first time, including definitions for "ephemeral", "intermittent",
"perennial", "prior converted cropland", "snowpack", "typical year", "upland", and "waste
treatment system".
The EPA and the Army are seeking comments on the specifics of the proposed
"waters of the United States" definition, and are requesting comment on the discussion
and definition of terms within it. In addition, the EPA and the Army are seeking
comments on a multitude of items such as underlying legal interpretations, rule
implementation, and the associated Economic Analysis and Resource and
Programmatic Assessment (and their data). Finally, in response to requests from some
states, the EPA and the Army are exploring and seeking comments on the
development, and feasibility, of creating geospatial datasets or a mapping system for
jurisdictional waters in an effort to improve administration of CWA programs and provide
clarity for federal, state, and tribal agencies and the general public.
More information regarding this proposed rule can be found at EPA's website:
https://www.epa.gov/wotus-rule/step-two-revise. Additionally, the Federal Register
Notice can be found at the Federal Register's website:
https://www.federalregister.gov/documents/2019/02/14/2019-00791/revised-definitionof-waters-of-the-united-states.
DATES: Comments must be received on or before April 15, 2019.
ADDRESSES: Submit your comments, identified by Docket ID Number
EPA-HQ-OW-2018-0149, by one of the following methods:
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Federal eRulemaking Portal: http://www.regulations.gov/ (preferred method).
Follow the online instructions for submitting comments.
E-mail: OW-Docket@epa.gov. Include Docket ID No. EPA-HQ-OW-2018-0149
in the subject line of the message.
Mail: U.S. Environmental Protection Agency, EPA Docket Center, Office of Water
Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC
20460.
Hand Delivery / Courier: EPA Docket Center, WJC West Building, Room 3334,
1301 Constitution Avenue, NW, Washington, DC 20004. The Docket Center's
hours of operations are 8:30 a.m. 4:30 p.m., Monday Friday (except Federal
Holidays).
All submissions received must include the Docket ID No. for this rulemaking.
Comments received may be posted without change to https://www.regulations.gov/,
including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Michael McDavit, Oceans, Wetlands, and
Communities Division, Office of Water (4504-T), Environmental Protection Agency,
1200 Pennsylvania Avenue, NW, Washington, DC 20460; telephone number: (202)
566-2428; email address: CWAwotus@epa.gov; or Jennifer A. Moyer, Regulatory
Community of Practice (CECWCOR), U.S. Army Corps of Engineers, 441 G Street,
NW, Washington, DC 20314; telephone number: (202) 761-5903; e-mail address:
USACE_CWA_Rule@usace.army.mil.
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