

[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://

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]

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