[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Notices]
[Pages 24479-24480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10565]
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ENVIRONMENTAL PROTECTION AGENCY
DEPARTMENT OF DEFENSE
Deaprtment of the Army, Corps of Engineers
[EPA-HQ-OW-2011-0409; FRL-9300-6]
EPA and Army Corps of Engineers Guidance Regarding Identification
of Waters Protected by the Clean Water Act
AGENCY: Environmental Protection Agency (EPA); and U.S. Army Corps of
Engineers, Department of the Army, Department of Defense.
ACTION: Notice of availability and request for comments.
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SUMMARY: The Environmental Protection Agency (EPA) and the U.S. Army
Corps of Engineers (the Corps) are publishing for public comment
proposed guidance that describes how the agencies will identify waters
protected by the Federal Water Pollution Control Act Amendments of 1972
(Clean Water Act or CWA or Act) and implement the Supreme Court's
decisions on this topic (i.e., Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers (SWANCC) (531 U.S. 159 (2001))
and Rapanos v. United States (547 U.S. 715 (2006)) (Rapanos)). The
agencies believe that under this proposed guidance the number of waters
identified as protected by the Clean Water Act will increase compared
to current practice and this improvement will aid in protecting the
Nation's public health and aquatic resources.
The proposed guidance is consistent with the principles established
by the Supreme Court cases and is supported by the agencies' scientific
understanding of how waterbodies and watersheds function.
In addition, the agencies believe that when the revised guidance is
finalized and goes into effect, it will improve CWA program
predictability and clarity regarding the scope of ``waters of the
United States'' protected under the Act and that this improvement will
have benefits for both the government and regulated parties. When
finalized, this guidance would supersede previously issued guidance on
this matter. This guidance will apply to all CWA programs, including
section 303 water quality standards, section 311 oil spill prevention
and response, section 401 water quality certification, section 402
National Pollutant Discharge Elimination System permits, and section
404 permits for discharges of dredged or fill material. The agencies
seek public comment on all aspects of the proposed guidance, including
interpretations and scientific underpinnings.
In addition to this guidance, the agencies expect to propose
revisions of existing regulations to further clarify which waters are
subject to CWA jurisdiction, consistent with the Supreme Court's
decisions. Public comment on any such revisions will be requested at
the time they are proposed.
DATES: Comments must be received on or before July 1, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2011-0409 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[[Page 24480]]
E-mail: [email protected]. Include EPA-HQ-OW-2011-0409 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-2011-0409.
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-2011-0409. 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-
0409. 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
e-mail. 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 e-mail directly to EPA without going through http://www.regulations.gov, your e-mail 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 Ave., 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 Ave., NW.,
Washington DC 20460; telephone number 202-566-1783; e-mail address:
[email protected]. Mr. David Olson, Regulatory Community of Practice
(CECW-CO-R), U.S. Army Corps of Engineers, 441 G Street, NW.,
Washington, DC 20314; telephone number 202-761-4922; email address:
[email protected].
SUPPLEMENTARY INFORMATION: EPA and the Corps are seeking public comment
on proposed joint agency guidance regarding identification of waters
protected by the Clean Water Act. The agencies intention is that the
final joint guidance will supersede the ``Joint Memorandum'' providing
clarifying guidance on SWANCC, dated Jan. 15, 2003 (68 FR 1991, 1995),
and ``Clean Water Act Jurisdiction Following the U.S. Supreme Court's
Decision in Rapanos v. United States & Carabell v. United States,''
dated December 2, 2008, and available at http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm. Until that final guidance is issued,
both the 2003 and 2008 CWA jurisdiction guidance remain in effect.
Congress enacted the Clean Water Act (CWA) ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters'' (33 U.S.C. 1251(a)). One of the mechanisms adopted by
Congress to achieve that purpose is a prohibition on the discharge of
any pollutants into ``navigable waters'' except in compliance with
other specified sections of the CWA (33 U.S.C. 1311(a) and
1362(12)(A)). In most cases, this means compliance with a permit issued
pursuant to CWA section 402 (33 U.S.C. 1342) or section 404 (33 U.S.C.
1344). The CWA provides that ``[t]he term `navigable waters' means the
waters of the United States, including the territorial seas'' (33
U.S.C. 1362(7)). EPA and the Corps have further defined the term
``waters of the United States'' in regulations (40 CFR 230.3(s) and 33
CFR 328.3(a); substantively similar regulatory definitions appear at 40
CFR 110.1, 112.2, 116.3, 117.1, 122.2, 232.2, 300.5, part 300 App. E,
302.3 and 401.11).
The U.S. Supreme Court has addressed the scope of waters of the
United States protected by the CWA in three cases, two of which are
specifically addressed by the draft guidance. In SWANCC, the Court
addressed the question of CWA jurisdiction over isolated ponds, and
concluded that CWA jurisdiction could not be based solely on the
presence of migratory birds. In Rapanos, the Court addressed CWA
protections for wetlands adjacent to tributaries, and issued five
opinions with no single opinion commanding a majority of the Court.
Neither SWANCC nor the opinions in Rapanos invalidated any of the
regulatory provisions defining ``waters of the United States.'' The
Court also addressed the question of CWA jurisdiction in an earlier
case, Riverside Bayview Homes. While not specifically addressed in the
current guidance, this case informed the Court's decisions in the
latter two cases.
The agencies believe it is advisable to replace existing guidance
documents interpreting SWANCC and Rapanos in order to implement the CWA
in a manner that is consistent with those opinions, reflects the best
available science, and recognizes recent field implementation
experience. By reflecting such developments, the proposed guidance made
available today for public comment is expected, once it is finalized
after considering all comments received, to provide clearer direction
to field staff in implementing the Court decisions and reduce
uncertainty in the regulated community.
EPA and Army Corps of Engineers Guidance Regarding Identification
of Waters Protected by the Clean Water Act
Dated: April 25, 2011.
Nancy K. Stoner,
Acting Assistant Administrator for Water Environmental Protection
Agency.
Dated: April 26, 2011.
Jo Ellen Darcy,
Assistant Secretary of the Army (Civil Works), Department of the Army.
[FR Doc. 2011-10565 Filed 4-29-11; 8:45 am]
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