EPA and Army Corps Propose New Guidance on Federally Protected Waterways

June 2011Newsletters In the Zone

On May 2, 2011, the U.S. EPA and the U.S. Army Corps of Engineers announced draft guidance for determining whether a waterway, water body or wetland is protected by the Clean Water Act (CWA). The agencies believe that under this proposed guidance , the number of waters identified as protected by the CWA will increase compared to current practice. When finalized, this guidance would supersede previously issued guidance on this matter.

The proposed guidelines seek to modify the current process for identifying waters protected under the CWA and implement the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (531 U.S. 159 (2001)) and its ruling in Rapanos v. United States (547 U.S. 715 (2006)).

The proposed guidance will help restore protections for waters by providing:

  • Clarification that small streams and streams that flow part of the year are protected under the CWA if they have a physical, chemical or biological connection to larger bodies of water downstream and could affect the integrity of those downstream waters. Agencies would be able to evaluate groups of waters holistically rather than the current piecemeal, stream-by-stream analysis.
  • Acknowledgment that when a water body does not have a surface connection to an interstate water or a traditional navigable water but there is a significant physical, chemical or biological connection between the two, both water bodies should be protected under the CWA.
  • Recognition that water bodies may be “traditional navigable waters” and subject to CWA protections under a wider range of circumstances than identified in previous guidance.
  • Clarification that interstate waters (crossing state borders) are protected.

This new guidance does not change any of the existing agriculture exemptions under the CWA. All of the act’s exemptions from permitting requirements for normal agriculture, forestry and ranching practices continue to apply. The guidance also clearly describes waters not regulated under the act, including:

  • Certain artificially irrigated areas
  • Many agricultural and roadside ditches
  • Artificial lakes or ponds, including farm and stock ponds

The draft guidance will be open for 60 days of public comment to allow all stakeholders to provide input and feedback before it is finalized.

For more information, please contact M. Joel Bolstein at 215.918.3555 or [email protected].

View entire issue