EPA announced in the May 2 Federal Register (76 FR 24479) a long-awaited proposed guidance intended to clarify the jurisdiction of the federal Clean Water Act (CWA) following two U.S. Supreme Court decisions that narrowed its applicability to non-navigable waters.
In announcing the release of the guidance, EPA Administrator Lisa Jackson said that it is not binding and does not carry the force of law, but that it should be used by EPA field staff charged with making on-the-ground determinations of CWA applicability. EPA also says it intends to launch a rulemaking process to further clarify when discharges to isolated wetlands and other marginal waters are subject to federal oversight.
EPA officials said the proposed guidance reaffirms protections for small streams that feed into larger streams, rivers, bays and coastal waters, as well as wetlands that filter pollution and help protect communities from flooding. A 2006 U.S. Supreme Court plurality opinion specified that isolated or adjacent wetlands must have a “significant nexus” to a traditional navigable water in order to receive CWA protection.
Under the draft guidance, waters protected by the CWA will include traditional navigable waters, interstate waters, wetlands adjacent to either traditional navigable waters or interstate waters, non-navigable tributaries to traditional navigable waters that are relatively permanent and contain water at least seasonally, and wetlands that directly abut relatively permanent waters.
In addition, the following waters will be protected by the CWA if a fact-specific analysis determines they have a “significant nexus” to a traditional navigable water or interstate water: tributaries to traditional navigable waters or interstate waters, wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters, and waters that fall under the “other waters” category of the regulations.
The guidance also lists several categories of waters that are not subject to the CWA. These include: water bodies excluded from Clean Water Act coverage under existing regulations; artificial lakes and ponds used for purposes such as stock watering, settling basins or rice growing; artificial reflecting pools and swimming pools, water-filled depressions in dry land resulting from construction activities; and groundwater drained through subsurface drainage systems.
The draft guidance won plaudits from environmental organizations and congressional Democrats who criticized a previous guidance issued by the Bush Administration as too narrow. But some congressional Republicans and industry groups responded with skepticism, and suggested the new guidance is an attempt to circumvent the regulatory process.
Additional information and a copy of the draft guidance can be downloaded fromEPA. AMWA’s Regulatory Committee is considering developing comments on the guidance. Comments are due to EPA by July 1.