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Statement of Need:

After U.S. Supreme Court decisions in SWANCC ( Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)) and Rapanos ( Rapanos v. United States , 547 U.S. 715 (2006)), the scope of waters of the US protected under all CWA programs has been an issue of considerable debate and uncertainty. The Act has a single definition for waters of the United States. As a result, these decisions affect the geographic scope of all CWA programs. SWANCC and Rapanos did not invalidate the current regulatory definition of waters of the United States. However, the decisions established important considerations for how those regulations should be interpreted, and experience implementing the regulations has identified several areas that could benefit from additional clarification through rulemaking. EPA and the U.S. Army Corps of Engineers are developing a proposed rule for determining whether a water is protected by the Clean Water Act. This rule would clarify which water bodies are protected under the Clean Water Act.

Summary of the Legal Basis:

The EPA and the U.S. Army Corps of Engineers (Corps) publish for public comment a proposed rule defining the scope of waters protected under the CWA, in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), and Rapanos v. United States (Rapanos). 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.

Alternatives:

The agencies solicited comment on a number of issues throughout the proposed rule preamble. In particular, the agencies requested comment on alternate approaches to determining whether ‘‘other waters' are similarly situated and have a ‘‘significant nexus' to a traditional navigable water, interstate water, or the territorial seas. Just as the agencies are seeking comment on a variety of approaches, or combination of approaches, as to which waters are jurisdictional, the agencies also request comment on determining which waters should be determined non-jurisdictional. In addition, the agencies are seeking comment on alternate approaches to define "neighboring."

Anticipated Costs and Benefits:

The EPA and the Corps of Engineers prepared an analysis of the potential costs and benefits associated with this action. The definition of "waters of the U.S.," by itself, imposes no direct costs. The potential costs and benefits incurred as a result of this proposed action are considered indirect because the action involves a definitional change to a term that is used in the implementation of a variety of CWA programs. Each of these programs may subsequently impose direct or indirect costs as a result of implementation of their specific regulations. The proposed rule would provide an estimated $388 million to $514 million annually of benefits to the public, including reducing flooding, filtering pollution, providing wildlife habitat, supporting hunting and fishing, and recharging groundwater. The public benefits outweigh the costs of about $162 million to $278 million per year for mitigating impacts to streams and wetlands, and taking steps to reduce pollution to waterways.

Risks:

This proposal would 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.