In This Issue

Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of “Waters of the United States”

The U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) have issued an advance notice of proposed rulemaking (ANPRM) in order to obtain early comment on issues associated with the scope of waters that are subject to the Clean Water Act (CWA), in light of the U.S. Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). The ANPRM requests public input on issues associated with the definition of “waters of the United States” and also solicits information or data from the general public, the scientific community, and Federal and State resource agencies on the implications of the SWANCC decision for jurisdictional decisions under the CWA. The goal of the agencies is to develop proposed regulations that will further the public interest by clarifying what waters are subject to CWA jurisdiction and affording full protection to these waters through an appropriate focus of Federal and State resources consistent with the CWA. The input received from the public in response to this ANPRM will be used by the agencies to determine the issues to be addressed and the substantive approach for a future proposed rulemaking addressing the scope of CWA jurisdiction.

In order to be considered, comments or information in response to this ANPRM must be postmarked or e-mailed on or before March 3, 2003. Comments may be submitted electronically, by mail, or through hand delivery/courier. Mail comments to: Water Docket, Environmental Protection Agency, Mailcode 4101T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. OW-2002-0050. For information on the ANPRM, contact either Donna Downing, U.S. Environmental Protection Agency, Office of Wetlands, Oceans and Watersheds (4502T), 1200 Pennsylvania Avenue N.W., Washington, DC 20460, phone: (202) 566-1366, e-mail:, or Ted Rugiel, U.S. Army Corps of Engineers, ATTN CECW-OR, 441 G Street NW., Washington, DC 20314-1000, phone: (202) 761-4595, e-mail: Thaddeus.J.Rugiel@HQ02.USACE.ARMY.MIL.

Pending this rulemaking, should questions arise, the regulated community should seek assistance from the Corps and EPA, in accordance with the joint memorandum attached as Appendix A to the NPRM. The NPRM (including Appendix A) can be downloaded from RCP’s website at here through the SPCC Gateway.

Editor’s comment: This is truly a “watershed” ANPRM. The issue at stake goes to the heart of the scope of the Clean Water Act, and the regulations promulgated under the CWA. Previous definitions of “waters of the United States” were written in the broadest possible terms, to incorporate virtually any water (or potential water) that could in any conceivable way be used in interstate commerce (can a duck cross state lines, and land in the pond? can someone from out of state swim in the pond? etc.). The SWANCC supreme court case explicitly ruled out some of these very broad interpretations, and has thrown several similar interpretations into doubt. Other federal court rulings have been contradictory concerning some interpretations. Appendix A to the ANPRM gives a thorough analysis of the recent cases and their implications, and warrants a very close reading by anyone with regulatory responsibility under CWA programs. RCP would be glad to assist in the analysis of these issues for your specific situation.