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Clean Water Act Proposed Rule For Definition Of Waters Of The U.S.
Comment Period Extension For The Clean Water Act Proposed Rule For Definition Of Waters Of The U.S.
Full Public Notice
On 21 April 2014, the USEPA and the Corps of Engineers (Corps) 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. This notice is to announce that the comment period has been extended through October 20, 2014. Comments must be received on or before October 20, 2014. The comment period was originally scheduled to end on July 21, 2014.
Special Public Notice
Comment Period Extension for the Clean Water Act
Proposed Rule for Definition of Waters of the U.S.
June 13, 2014
CLEAN WATER ACT PROPOSED RULE FOR DEFINITION OF WATERS OF THE
U.S.
Comment Period Extension for the Clean Water Act Proposed Rule for Definition
of Waters of the U.S.
On 21 April 2014, the USEPA and the Corps of Engineers (Corps) 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. This
notice is to announce that the comment period has been extended through October 20,
2014. Comments must be received on or before October 20, 2014. The comment
period was originally scheduled to end on July 21, 2014.
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. 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 identified.
The 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 section (a).
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.
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.
National Issues Concerning the Proposed Rule: Similar public notices are being
published concurrently by other Corps 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, please visit:
http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/National
NoticesandProgramInitiatives.aspx.
DATES: The comment period is extended through October 20, 2014. Comments must
be received on or before October 20, 2014. The comment period was originally
scheduled to end on July 21, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPAHQOW
20110880 by one of the following methods:
· Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions
for submitting comments.
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E-mail: ow-docket@epa.gov. Include EPAHQOW20110880 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. EPAHQOW2011
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. EPAHQOW20110880. 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 2025662426.
FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing, Office of Water
(4502T), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW,
Washington, DC 20460; telephone number 2025662428; e-mail address:
CWAwaters@epa.gov. Ms. Stacey M. Jensen, Regulatory Community of Practice
(CECWCOR), U.S. Army Corps of Engineers, 441 G Street, NW, Washington, DC
20314; telephone number 2027615856; email address:
USACE_CWA_Rule@usace.army.mil; and include the EPA Docket ID No. EPA-HQOW-2011-0880 in the subject line of the message.
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