EPA Issues New Clean Water Guidance for Comment
The U.S. Environmental Protection Agency issued new draft guidancetoday aimed at clarifying which waters are protected by the Clean Water Act and how federal agencies will implement recent Supreme Court decisions concerning CWA jurisdiction.
The Obama Administration issued the guidance as part of a national “clean water framework” that stressed the role of partnerships and coordination with states, local communities, stakeholders and the public to protect water quality. More on the clean water framework and today’s announcement is available here.
The draft guidance is now subject to a 60-day comment period. Directions for submitting comments can be found in this federal register notice.
In materials posted today, EPA noted that Supreme Court rulings over the past decade had removed some waters from federal protection and caused confusion over which waters and wetlands are protected under the Clean Water Act.
“As a result, important waters now lack clear protection under the law, and businesses and regulators face uncertainty and delay. The Obama Administration is committed to protecting waters on which the health of people, the economy and ecosystems depend,” EPA said.
A conference call with Nancy Stoner, EPA’s acting assistant administrator for water, is set for 1:30 p.m. Pacific time (4:30 p.m. EDT) today. ACWA will participate in the call and follow up with further details and suggested comments.
Key Points from Guidance
For now, key points from the draft guidance are excerpted below:
Based on the agencies’ interpretation of the statute, implementing regulations and relevant case law, the following waters are protected by the Clean Water Act:
- 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, meaning they contain water at least seasonally; and
- Wetlands that directly abut relatively permanent waters.
In addition, the following waters are protected by the Clean Water Act 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 divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.
The following aquatic areas are generally not protected by the Clean Water Act:
- Wet areas that are not tributaries or open waters and do not meet the agencies’ regulatory definition of “wetlands”;
- Waters excluded from coverage under the CWA by existing regulations;
- Waters that lack a “significant nexus” where one is required for a water to be protected by the CWA;
- Artificially irrigated areas that would revert to upland should irrigation cease;
- Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;
- Artificial reflecting pools or swimming pools created by excavating and/or diking dry land;
- Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons;
- Water-filled depressions created incidental to construction activity;
- Groundwater drained through subsurface drainage systems and
- Erosional features (gullies and rills), and swales and ditches that are not tributaries or wetlands.