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EPA issues Clean Water Act guidance

The EPA released the draft guidance for the Clean Water Act on Wednesday. The document would serve as a guideline for the EPA, USDA and Army Corps of Engineers in determining which waterways fall under the federal Clean Water Act. The draft is an effort to clarify the jurisdiction in light of a pair of Supreme Court decisions over the past decade.

The new guidance says that small streams are protected by the act 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,” the EPA said.

The agency indicated that it intends to expand the definition of “traditional navigable waters”, saying the term may apply under a wider range of circumstances than in previous guidance. This would make more water bodies subject to Clean Water Act protections.

The act will also apply to non-navigable tributaries to traditional navigable waters if the tributaries are relatively permanent, meaning they contain water at least seasonally. Wetlands adjacent to either interstate waters or traditional navigable waters would also be covered, along with wetlands that directly abut relatively permanent waters.

EPA says the rule also clarifies that interstate waters are also protected by the act. Waters that are not regulated by the act include artificial lakes and ponds, many agricultural and roadside ditches, and certain artificially irrigated areas, the EPA said.

NCGA President Bart Schott says “While the guidance maintains existing exemptions for normal farming and ranching activities, NCGA remains concerned that the new proposal could expand EPA’s authority over isolated waters including ditches and farm ponds,”

The plan is now open for a 60-day comment period.