EPA and Army Corps Release New Guidance on Scope of Clean Water Act
April 29th, 2011
On Wednesday, April 27, the EPA and Army Corps of Engineers issued a proposed guidance for determining which waters are protected under the Clean Water Act. A notice of the release of the proposed guidance will be published in the Federal Register on May 2, which starts a 60-day public comment period on the proposed guidance.
Two U.S. Supreme Court decisions over the last decade have engendered uncertainty and controversy over the issue of the scope of the Clean Water Act. In the 2001 case Solid Waste Authority of Northern Cook County v. Army Corps of Engineers, the Court ruled that the Army Corps and EPA could not rely solely on the use of a wetland area by birds as the jurisdictional support for protecting a wetland isolated from other waters under the Clean Water Act. Five years later, in Rapanos v. United States, a fractured court without a majority issued three separate opinions on the issue of determining the scope of the Act’s protection. The proposed guidance is intended to help agency staff in interpreting the Supreme Court rulings.
The newly released proposed guidance would provide increased protections for some critically important U.S. waters that were left unprotected in previous guidance documents issued after the U.S. Supreme Court cases. It would protect interstate waters and many geographically isolated waters that previous guidance documents left unprotected.
Another important feature of the proposed guidance is that it would allow for watershed aggregation of tributaries and wetlands in the watershed of a navigable water. Without this protection, each single tributary or wetland might be degraded or polluted without Clean Water protection. Over time the entire watershed, including the navigable waters, could suffer harm.
The proposed guidance has exclusions important to farmers and ranchers. For example, it would not cover artificial lakes or ponds created by excavating or diking dry land and used exclusively for agricultural activities such as livestock watering or irrigation. Dry areas that are artificially irrigated and take on wetland characteristics but revert to dryland when irrigation ceases would not be covered.
As emphasized in commentary by the Izaak Walton League of America, the proposed guidance is a critical first step in restoring the Clean Water Act’s protections for wetlands, streams and other waters. In addition to releasing the proposed guidance, EPA and the Army Corps have indicated that they expect to propose revisions of existing regulations to further clarify which waters are subject to CWA jurisdiction, consistent with the Supreme Court’s decisions.
For more information on the proposed guidance, check out the Clean Water Network’s website on the proposed guidance.