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EPA and Army Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction after Rapanos 



[Federal Register: June 8, 2007 (Volume 72, Number 110)]
[Notices]
[Page 31824-31825]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jn07-55]

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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2007-0282; FRL-8324-4]

EPA and Army Corps of Engineers Guidance Regarding Clean Water
Act Jurisdiction after Rapanos

AGENCY: U.S. Army Corps of Engineers, DoD; Environmental Protection
Agency (EPA).
ACTION: Notice of availability.

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SUMMARY: The U.S. Environmental Protection Agency and U.S. Army Corps
of Engineers are today issuing agency guidance, effective immediately,
regarding Clean Water Act (CWA) jurisdiction following the U.S. Supreme
Court's decision in the consolidated cases Rapanos v. United States and
Carabell v. United States (``Rapanos''). The agencies are issuing this
guidance to ensure that jurisdictional determinations, administrative
enforcement actions, and other relevant agency actions being conducted
under the CWA are consistent with the Rapanos decision and provide
effective protection for public health and the environment. The
agencies are concurrently providing a six-month public comment period
to solicit input on early experience with implementing the guidance.
The agencies, within nine months from the date of issuance, will either
reissue, revise, or suspend the guidance after carefully considering
the public comments received and field experience with implementing the
guidance.

DATES: Comments must be received on or before December 5, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2007-0282, by one of the following methods:
    • http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
    • E-mail: OW-Docket@epa.gov. Include the docket number, EPA-
HQ-OW-2007-0282 in the subject line of the message.
    • Mail: Water Docket, Environmental Protection Agency,
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    • Hand Delivery: 1301 Constitution Ave., NW., Room 3334,
Washington, DC 20460. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2007-
0282. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online 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
comment 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 may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Water Docket, EPA/DC,
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: Russell L. Kaiser, Regulatory
Community of Practice (CECW-CO), U.S. Army Corps of Engineers,
Headquarters, 441 G Street, NW., Washington, DC 20314; telephone
number: (202) 761-7763: fax number: (202) 761-5096; e-mail address: 
Rapanos.Comments@usace.army.mil. Donna M. Downing, Office of Water
(4502T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 566-1783; e-mail address: 
CWAwaters@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

    The U.S. Environmental Protection Agency and U.S. Army Corps of
Engineers are issuing agency guidance, effective immediately, regarding
Clean Water Act (CWA) jurisdiction following the U.S. Supreme Court's
decision in the consolidated cases Rapanos v. United States and
Carabell v. United States (126 S. Ct. 2208 (2006)) (``Rapanos'').
Congress enacted the Clean Water Act (``CWA'') (33 U.S.C. 1251(a)) ``to
restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.'' One of the mechanisms adopted by Congress to
achieve that purpose is a prohibition on the discharge of any
pollutants, including dredged or fill material, 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 or section
404. The CWA defines the term ``discharge of a pollutant'' as ``any
addition of any pollutant to navigable waters from any point
source[,]''(33 U.S.C. 1362(12)(A)) and provides that ``[t]he term
`navigable waters' means the waters of the United States, including the
territorial seas[,]'' (33 U.S.C. 1362(7); 33 CFR 328.3(a) and 40 C.R
230.3(s)). In Rapanos, the Court addressed where the Federal government
can apply the CWA, specifically by determining whether a wetland or
tributary is a ``water of the United States.'' The justices issued five
separate opinions in Rapanos (one

[[Page 31825]]

plurality opinion, two concurring opinions, and two dissenting
opinions), with no single opinion commanding a majority of the Court.
    During the first six months implementing the guidance, the agencies
invite public comment and case studies on early experience with
implementing the guidance. The agencies, within nine months from the
date of issuance, will either reissue, revise, or suspend the guidance
after carefully considering the public comments received and field
experience with implementing the guidance. A copy of the guidance can
be found on EPA's Web site at http://www.epa.gov/owow/wetlands/guidance/
CWAwaters.html and on the Corps' Web site at 
http://www.usace.army.mil/cw/cecwo/reg/.
    The Court's split decision is causing uncertainty among agency
field personnel and the general public regarding the scope of Federal
jurisdiction under the CWA's section 404 program. As a result, many
jurisdictional determinations and their associated permitting actions
have been delayed. For this reason, the agencies believe it is
imperative that the guidance be issued immediately, so that agency
field personnel can address the backlog of pending jurisdictional
determinations.
    At the same time, the agencies appreciate that the public has
considerable interest in the issues addressed in this guidance. The
agencies are particularly interested in hearing from the public
regarding their actual experience with implementing the guidance. For
this reason, we are providing a six month public comment period, which
will allow us to address the backlog of pending jurisdictional
determinations, while encouraging the public to provide comments, case
studies, and experiences with the use of this guidance. To assure the
public of our commitment to carefully consider their comments, and to
address issues that may unexpectedly arise during implementation of the
guidance, the agencies will within nine months from the date of
issuance either reissue, revise, or suspend the guidance.

    Dated: June 5, 2007.
Benjamin H. Grumbles,
Assistant Administrator, Office of Water.
[FR Doc. E7-11123 Filed 6-7-07; 8:45 am]
BILLING CODE 6560-50-P

 
 

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