By Judy Sheahan
May 16, 2011

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) published in the federal register May 2 a guidance called Waters of the U.S. that identifies what waters are to be protected by the Clean Water Act (CWA). This guidance is open for public comment until July 1.

According to EPA, this 39-page guidance provides clarification after a series of Supreme Court decisions caused uncertainty in the field as to what did or did not constitute a water body that would fall under the protection of the CWA. Congress has also been debating this issue for several years but has not been able to pass legislation due to a lack of consensus among members regarding its controversial and potentially far-reaching implications.

This draft guidance, according to EPA, sets out to clarify what the Supreme Court opinions meant and, while not legally binding, would "supersede existing guidance to field staff issued in 2003 and 2008 on the scope of ‘waters of the United States.’" The EPA and the Corps said after this guidance, the next step would be to establish new rules and regulations based on the new definition.

The draft guidance reiterates the traditional definition of navigable water but also addresses the issues brought up by the Supreme Court and expands the guidance to define what is meant by "significant nexus," tributaries, adjacent wetlands, geographically-isolated waters, intermittent streams, ditches, and manmade conveyances.

EPA and the Corps admit that this guidance goes beyond previous definitions of waters covered by CWA. The key rationalization EPA and the Corps use to support extending federal jurisdiction is that "previous guidance did not make full use of the authority provided by the CWA to include waters within the scope of the Act, as interpreted by the Court. This draft guidance provides a more complete discussion of the agencies’ interpretation, including of how waters with a ‘significant nexus’ to traditional navigable waters or interstate waters are protected by the Clean Water Act."

The guidance includes a summary of key points which include the following.

1) Based on the agencies’ interpretation of the statute, implementing regulations and relevant case law, the following waters are protected by the CWA include: Traditional navigable waters; interstate waters; wetlands adjacent to either traditional navigable or interstate waters; non-navigable tributaries to traditional navigable water that are relatively permanent, meaning they contain water at least seasonally; and wetlands that directly abut relatively permanent waters.

2) In addition, the following waters are 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 water or interstate waters; wetlands adjacent to jurisdictional tributaries to traditional navigable water 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 water and those that are not, and discusses how each category should be evaluated.

3) The following aquatic areas are generally not protected by the CWA: wet areas that are not tributaries or open water and do not meet the agencies’ regulatory definition of "wetlands"; waters excluded from coverage under the CWA by existing regulations; water 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.

Mayors are strongly encouraged to have their staff read over this guidance and determine how this might impact their city. Comments are due on July 1 and The U.S. Conference of Mayors staff would appreciate getting copies of any comments submitted. The Federal Register notice can be found on EPA’s website at http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm