Department of Defense May 2, 2011 – Federal Register Recent Federal Regulation Documents

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.